1. Travenawas incompetent as a witness for two reasons: 1st, because of interest; and 2d, because the judgment would be evidence for him in a future action. Tenants in common must join in trespass. But if for any reason there is a failure to join all, and those suing recover, they hold a share of the sum recovered in trust for the party not joined. The instrument offered as a release was a mere assignment. ( Oliver v. Walsh , 6 Cal. 456; Kimball v. Gearhart , 12 Id. 44 to 49; Packer v. Heaton , 9 Id. 568; Prac. Act, sec. 4, 392, 393; 4 Cal. 14, 406.)
2. Proof of title to the Eureka Company claims was admissible under the general issue. (1 Chitty's Pl. 500-502, and authorities cited; Marsh v. Berry, 7 Cow. 347; Van Buskirk v. Irving , 7 Id. 35; Foot v. Calvin, 3 Johns. 215.) Title to the property was also specially pleaded. But it is unnecessary to urge this fact, as under the general issue we had a right to give in evidence all matters tending to deny plaintiff's allegations of title and possession.
JUDGES: Cope, J. delivered the opinion of the Court. Baldwin, J. concurring.
OPINION
COPE, Judge
Upon further examination, we are satisfied that the judgment in this case should be affirmed. The witness Travena was interested in the damages, and his release amounted to nothing more than an assignment of his interest. The fourth section of the Practice Act rendered him incompetent, and his testimony was properly rejected. The evidence in regard to the Eureka title was correctly admitted under the answer. Our former opinion was written under the impression that this title had not been pleaded. The other points made are without merit.
Judgment affirmed.
Note.--See Grady v. Early, ante 108, where the witness was held competent. In that case, however, plaintiff waived damages --though the opinion does not seem to go on that ground. So that the third syllabus in that case may or may not need modifying in this particular.