Neither of the defendants was admissible as a witness for the other, because the testimony of one would not operate to discharge his co-defendant, without also discharging himself. Being sued on a joint contract, they could not be separated in the judgment; and though the Practice Act, section 145, provides that separate judgments may be given, the following section contemplatesthat this severance should only take place " whenever a several judgment is proper." In this case the suit is joint: both are liable jointly, or the whole must fail. (Chitty Plead. 44.)
So the Practice Act, sec. 423, p. 118, provides that the examination of one co-plaintiff for another " shall not be used in behalf of the party examined, except as against the examining party." If his testimony must necessarily be used in his own behalf as well as for his co-defendant, he must be incompetent. If the object for which Kohler was offered was true, and as testified to by him, the alteration of the note, it would render it void against both defendants. (Chit. on Bills, 181.) He was therefore rightly excluded.
JUDGES: Heydenfeldt, Justice, delivered the opinion of the Court. Murray, Chief Justice, concurred.
OPINION
HEYDENFELDT, Judge
As has been frequently determined in cases heretofore, we cannot revise the finding of the jury upon the facts.
The only question for consideration is whether the District Court erred in refusing to allow the two defendants to give evidence for each other.
Section 423 of the Practice Act declares: " A party may be examined on the part of his co-plaintiff, or co-defendant; but the examination thus taken shall not be used on behalf of the party examined, except as against the examining party."
The defendants answered separately. The issue raised by the answer of Kohler is, that the note given by him had been altered in a material part, and was therefore a forgery. This defence, if sustained by proof, would be fatal to any recovery whatever on the paper, and neither of the defendants could properly be permitted to give evidence on this point for one another, because the defence must equally avail the party giving evidence. According to the case as made, this was the only question upon which Broderick could be called to give evidence for Kohler, and it was therefore properly decided that he was incompetent.
The answer of Broderick is a general denial, amounting to the general issue at common law, and this put the plaintiff not only upon the proof of the execution of the note, but also upon the proof of the partnership, or of the authority of Kohler to involve Broderick in the same liability. It appears also from the evidence, that this was a contested question. It sometimes happens that a witness may be competent for one purpose, and incompetent for others; and so it seems to be the case here, for although Kohler could not be allowed to testify anything which would tend to prove that the note had been altered, yet he might very well have been permitted to show that Broderick was not his partner. Upon this question, in a legal point of view, his interest would be directly in favor of making Broderick share the liability.
But in order to show error in the refusal of the Court to let Kohler give this evidence, the record ought to show that he was proposed specifically for that purpose. As it appears, however, he was called generally as a witness, and being clearly incompetent as such, the Court below was correct in excluding him.
Judgment affirmed.