The more convenient mode of treating the subject proposed, will be to consider, in the first place, the cases bearing upon the examination of parties as such, and, in the second, those in relation to witnesses in general; although the two subjects are necessarily dependent upon each other, and many of the authorities upon either subject have a double bearing upon both.

Under the Codes of 1848 and 1849, the extent to which the evidence of co-plaintiffs and co-defendants might be made use of, under the powers conferred by sec. 397, became the subject of long and doubtful discussion, and the point remained to a great degree unsettled, until provided for by the recent amendments in that section, although a result in accordance with those amendments was in process of being arrived at.

In Merrifield v. Cooley, 4 How. 272, and The Mechanics and Farmers' Bank v. Wilbur, 2 C. R. 33, the principle now expressly adopted, i. e., that joint contractors or joint debtors cannot be admitted to testify on behalf of each other, and that the propriety or non-propriety of a several judgment being entered, is the proper test by which the admissibility of parties offered as witnesses is to be tried, was distinctly laid down.

It was held in Hollenbeck v. Van Valkenburgh, 5 How. 281, 1 C. R. (N. S.) 33, that a defendant, in the same interest as the plaintiff, could not testify on his behalf. The disqualification on the ground of interest extends to such a case as he is "a party to the action," (sec. 399,) though not, technically speaking, an adverse party. A person who is generally incompetent to testify, may, however, give evidence on points which he has no interest in establishing. The onus probandi in cases of objection to testimony of this description, lies upon the objector.

In Henry v. Henry, 8 Barb. S. C. R. 588, where a judgment confessed by fraud was sought to be set aside, and re-payment of monies received under it obtained, as against the confessee, the evidence of the party who confessed such judgment was rejected, on the ground of his having an interest in having the amount sought to be recovered, applied in extinguishment of the judgment against him.

In Dodge v. Averill, 5 How. 8, it was held that, in an action before the Code, a defendant in tort, upon whom process had not been served, could not be examined on behalf of his codefendant. Section 399 excludes him, said the learned judge, as being a party to the action, and also interested.

In Thompson v. Blanchard, however, 4 Comst. 303, where one defendant in trover had pleaded, and the other suffered judgment by default, the latter was held to be a competent witness against his co-defendant.

In Parsons v. Pierce, 3 C. R. 177, 8 Barb. S. C. R. 655, it was held that, in actions of tort since the Code, a defendant might be called as a witness on behalf of his co-defendant, but his testimony was, in that case, to be confined to facts to go in total exoneration of the party calling him, and he was not to be allowed to testify on the question of damages, in reducing which he had an interest. The decision was that of a majority at general term, Shankland, C. J., dissenting as to the exclusion of the testimony of the particular witness there in question, but not on general grounds. In the course of his opinion, in which the law on the subject is elaborately examined, that learned judge lays down the following general principle: "Upon the fullest consideration, I have no doubt that, in actions commenced since the Code, a plaintiff or defendant may, in all cases, call their fellow plaintiff or defendant to testify to all questions pertinent to the cause, and that judgment may be entered in accordance with the facts, in every diversity of form, as was formerly done by decrees in the court of chancery."

In Munson v. Hagerman, 5 How. 223, it was decided that one of two defendants charged with a joint offence, cannot be a witness for the other. The first clause of sec. 397 was intended as a substitute for the old rule in chancery on the subject, under which, co-defendants in the same interest could not be examined for each other. A similar view appears to have been taken by the N. Y. common pleas, in a case of Johnson v. Wilson, referred to in 1 C. R. (N. S.) p. 40, in note.

In Labar v. Koplin, 4 Comst. 547, it was held that where, on a trial for a joint assault, no evidence appeared against one of the parties, he was entitled to be discharged, for the purpose of being examined as a witness against his co-defendant. If, however, there is any, even the slightest evidence against him, he cannot be so, and the case must go all together to the jury, his evidence of course being inadmissible under such circum

stances.

In Selkirk v. Waters, 5 How. 296, 1 C. R. (N. S. )35, the view taken in Parsons v. Pierce is confirmed; and it was held, in opposition to Munson v. Hagerman, that a defendant may be ex

amined as a witness in behalf of his co-defendant, in all cases where a separate judgment may be entered in favor of the latter, and that such co-defendant is, therefore, a competent witness in all joint and several actions, whether on contract or on tort. He is also a competent witness in joint actions, to prove any personal defence admitting of a separate judgment, on behalf of his co-defendant. In no case, however, can his evidence be received, on any matter in the action in which he is interested. either generally, or by way of mitigation of damages for which he is jointly liable. The evidence must, under any circumstances of this kind, be excluded as irrelevant, and the objecion is rather to the relevancy of the evidence, than to the competency of the witness.

In the Mayor of New York v. Price, 9 L. O. 255, 1 C. R (N. S.) 85, the above principle was pushed to the extent of holding that obligees, under a joint and several bond, might be examined as witnesses for each other, inasmuch as, under sec. 136, a several judgment might be taken as against any one of them.

to any

In the President of the Mechanics and Farmer's Bank v. Rider, 5 How. 401, 1 C. R. (N. S.) 61, (an action on a joint promissory note, defended on the ground of usury,) the above conflicting doctrines were brought into full play ; and that held in Parsons v. Pierce, was confirmed by a majority of the court. The following expressions are used by Harris J., in delivering the opinion of the majority: " This, then, I understand to be the intent and import of the 397th section of the Code-any party action may be examined as a witness on behalf of any other party, but, when examined on behalf of a co-plaintiff, or co-defendant, his testimony is not to have the same general effect as other testimony in the cause, but is to be applicable only to the issue between the party on whose behalf he is examined, and the adverse party. Such a witness may be excluded on the ground of interest, but, as his testimony can not affect the issue between him and the adverse party, this objection can only be sustained when the party offered as a witness is not only interested in succeeding himself, but also in having the party, by whom he is offered, succeed also. In the ordinary action against joint contractors, like that before us, the witness has no such interest: on the contrary, if he has any interest at all, it is to increase the number of those who are to assist in the payment of the recovery."

"It has been said that the effect of this rule is to allow several defendants, by mutually becoming witnesses for each other, to exonerate each other from liability. There is much force in this consideration, but it goes only to the question of credibility, it cannot affect the competency of the witness." The learned judge, after laying down that such testimony ought, however, to be received with extreme caution, held, in conclusion, that the evidence of co-defendants, in that action, had been erroneously excluded on the circuit, and that such testimony "should have been received, and submitted to the jury, with particular instructions as to its legal effect, and proper cautions as to the weight to be attached to it ;" and, this opinion being concurred in by Watson J., a new trial was accordingly ordered.

The above opinion was, however, dissented from by Parker J., as regards the circumstances of that peculiar case, though the general doctrine, that every defendant is a competent witness for a co-defendant, to prove any defence personal to that co-defendant, and in which the witness is not interested, as laid down by the same judge, in Selkirk v. Waters, before cited, is distinctly asserted. The ground of dissent was, that, in that case, the contract was a joint contract, on which no several judgment could properly be entered, and the defence a joint defence, going to the entire demand; and there seems to be irresistible force in that reasoning, as regards the particular defence there in question, inasmuch as usury, if proved, rendered the instrument sued on invalid and void as against all the parties, it appearing to have been jointly made and jointly discounted; and, therefore, each defendant examined, had a distinct and positive interest in establishing that defence, because, by doing so, he would exonerate, not merely his co-defendant, but himself also.

In Holman v. Dord, 1 C. R. (N. S.) 331, a defendant in an action for a false warranty, was held to be a competent witness on behalf of his co-defendant. The words "interest in the event of the action," in sec. 398, do not mean, in this connection, "an interest in any event of the action, but an interest in the event, as respects the party who calls him as witness." It was considered that, in that case, the party examined could not be benefitted by his co-defendant's discharge, but that, on the contrary, he might have an interest the other way, as the greater the number of parties contributing to the payment of the judgment, the better for him. The witness was accordingly held

to be competent, on the above, and also on the further ground that the case was one in which a separate judgment might be rendered.

In Ladue v. Van Vechten, 8 Barb. S. C. R. 664, it was held that the competency or incompetency of parties to testify, will depend upon their relation to each other. by their contract, and not on that existing between them as parties to the same action. The test will be as to whether or not such parties may be sued severally. If so, their testimony will be competent, and they will not be disqualified by being joined as defendants. It was also considered that, whenever an action might be maintained without joining a party, his testimony might possibly be received. An unreported decision of Blodget v. Morris, to the same effect, is referred to in the report.

It will be seen that the law as to the examination of parties is now distinctly laid down by section 397, as amended in accordance with the general spirit of the cases above cited, overruling, on the one hand, Munson v. Hagerman, and the decisions of that class, and the peculiar views of the majority in the Mechanics' and Farmers Bank v. Rider, on the other.

Co-plaintiffs and co-defendants are now, as a general rule, examinable in all cases, but in no case can their testimony be taken where they are jointly interested, or jointly liable with the party who calls them. See, also, Fort v. Gooding, below cited. The test by which the admissibility of their evidence will henceforth be tried, will probably be the measure of relief sought by the plaintiff, and whether such relief be joint or separate in its nature. If he seek separate relief, he seeks it subject to the disadvantage of the opposite parties being competent witnesses for each other. If he confine himself to the case. upon the joint relief, they cannot testify on each other's behalf.

The testimony of a party to the suit, between whom and the plaintiff there was no issue, and who had accordingly put in no answer, was decided in Leach v. Kelsey, 7 Barb. S. C. R. 466, to be admissible, as against his co-defendants. This seems clear, the great doubt has been whether he could testify for them.

In a case where A and B were alleged to be joint contractors, and A, being examined by the plaintiff, swore to such being the fact, it was held to be competent for B to give evidence on his own behalf, for the purpose of contradicting A. -Comstock v. Doe, 2 C. R. 140.