75 N.C. 67 | N.C. | 1876
The question lies in a nutshell, and but little can be said on either side.
A party to an action may be examined in his own behalf, C. C. P., sec. 343. In that case he is not entitled to pay as a witness.
A party may be Compelled to attend court and be examined in behalf of a coplaintiff or codefendant, "as to any matter in which he is not jointly interested or liable," etc. C. C. P., sec. 340. In that case he is entitled to pay as a witness.
We are of opinion upon the facts stated that Brink was examined in his own behalf, and section 343 applies. According to the record, plaintiff brought his action to recover of the defendants, E. R. Brink and L. G. Estes, trading as partners under the name of "Brink Estes," damages for an injury to certain property leased to them, by reason of their negligence.
So the liability, if any, was joint, and section 340 does not apply. The case sets out that Brink was examined in behalf of the defendants — in fact, the interest of the defendants was identical, and Brink could not swear for Estes without swearing for himself.
PER CURIAM. Reversed.
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