Aсtion to recover the possession of a horse. The complaint alleges that the horse was tortiously tаken by one of the defendants, and is wrongfully detained by
■ On the trial, Cohen offered his co-defendant, Wood, as a witness in his behalf. The plaintiff objected to the competency of Wood as a witness, on the ground of his joint interest with Cohen in the suit, Wood admitting that he had sold the horse to Cohen, and would be liable over to him if the plaintiff succeeded; but the Court permitted the witness to be sworn
The judgment in this case, had it been in favor of the plaintiff, for the recovery of the horse, would not necessarily have been joint against the defendants.
If Wood wrongfully took the horse from the plaintiff, he would have been liable without a demand for its return having been made; whereas, if his co-defendant, Cohen, was a bona fide purchaser of the horse, even from the wrongful taker, he would not have been liable in the absenсe of such a demand. Barrett v. Warren, 3 Hill (N. Y.) R. 348.—Pringle v. Philips, 5 Sandf. (N. Y.) R. 157. And, according to the late English authorities, he would not, under such circumstances, have been liable at all. See the сases cited and’commented upon in Pringle v. Philips, Supra. But we do not mean jto intimate a sanction of this doctrine. It might have been important, therefore, for Cohen to'show that though Wood wrongfully took the horse and was liable in the suit, yet that he was a bona fide purchaser from him, and, hеnce, not liable, at all events, in the absence of a demand; and, so far, his interest and that of his co-defendаnt would have been antagonistic, aiid not joint in the statutory sense of the word. We think Wood was rightly admitted as a witness. The City of New-York v. Price, 4 Sandf. (N. Y.) R. 616.— Beal v. Finch et al., 1 Kernan’s (N. Y.) R. 128, a case in which the whole subject under the New-York code is discussed
To what extent a co-defendant, when made a witness, as in this case, is to be permitted to testify, is аnother question, and one not now raised.
The judgment below was for the defendants, and it is contended that it should have been for the plaintiff. It is insisted that the evidence showed that a fraudulent sale of the horse had been made by the defendant Wood to the plaintiff, and that such sale deprived him of title, and the right to repossess himself of the article sold. The assumption of law is correct; Mandlove v. Burton, 1 Ind. R. 39; but it is not clear that any sale was made, and the question was for the jury upon the evidence.
The judgment is affirmed with costs.
Notes
The question in relation to the admissibility of the witness arose upon the following statute:
“A party may be exаmined on behalf of his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested, or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint judgment shall be rendered,” &c. 2 E. S. 1852, p. 97.
In the case cited in the text, which was upon the construction of a statutory provision similar to our own, cited in note 1, thе Court held that the word shall, in the clause “and as to which a separate and not joint judgment shall be rendered,” was to bе construed as synonymous with can.
The action was for an assault and battery, in which one of the defendants had been offered as a witness for his co-defendants.
Parker, J., in his opinion, says, “ Though this section is not expressed in very clear terms, it seems to me there can be no doubt as to its meaning. Of course it can be applicable only when defendants arе sued jointly. There can be co-defendants in no other case; and it declares as to what matters a defеndant, thus jointly sued with others, may be a witness for his co-defendant. It is as to a matter in which he is not jointly interested, and as to which a separate judgment may be rendered. He is a competent witness in all cases where sued jointly, but only as tо certain matters. He may prove that his co-defendant was not present, or, if present, that he took no рart in the assault and battely, or any other separate defence of his co-defendant; and, as to such mаtter, a verdict or judgment which is separate and not joint can be rendered. * * * It ia very plain that this section aрplies to every case of a joint and several contract, and to every tort, which is always joint and sevеral, and extends even further, viz., to contracts joint and not several, where one of the defendants has a separate legal defence, as may sometimes happen. Such separate defence must, of cоurse, be some matter in which the defendant testifying is not jointly interested, and as to which a separate judgment may be rеndered, such as infancy, forgery of the signature of the co-defendant, &c.
“In all actions a defendant is a competent witness for his co-defendant. His admissibility as a witness can not he questioned, but he is restricted as to the subject-matter of his examination. If any question he asked tending to establish a defence of which the co-defendant can not separately avail himself, the plaintiff is аt liberty to object, and the Court must exclude it. Where a witness is called to the stand who is competent to be sworn аnd to testify to s$me matters, but who may not speak of other matters, it is not proper to object to his compеtency generally and exclude him. It will not he presumed that an improper question will he. asked him. It is only by objecting to imрroper questions when asked, that a party can exclude improper evidence. A party having a witness оn the stand, may be called upon by his adversary to state what he proposes to prove, and in that case he must state it. But he need make no such statement unless called upon to do so. It is enough for him to proceed and put his questions to the witness, unless desired to state what he expects to prove.”
Two of the eight judges composing the Court dissented.