Opinion
June Term, 1854
A. R. Parker, for appellants.
Sayre Banks, for respondents.
This was an action for an assault and battery. On the trial at the circuit, in August, 1851, the defendants were severally offered as witnesses for the other defendants, but were excluded by the judge, to which decision the defendants severally excepted.
Under the late practice it was a great and acknowledged evil, that the plaintiff had it in his power in an action for a tort, by uniting several persons as defendants in one action, to deprive each defendant of testimony to which he would have been entitled, if sued separately. By such means, a plaintiff was often enabled to make out his case and put money in his pocket, when he had, in fact, no good cause of action against the persons sued. Suppose two persons, concerned in committing a battery, and a third person standing by as a chance spectator only, and taking no part in the transaction. This spectator being a disinterested witness, his testimony might be necessary to show who struck the first blow; and the two engaged might be indispensable witnesses to prove that the third person was merely a spectator and had nothing to do with the affray. Now, by suing all three together, the defendants were cut off from all such testimony, though each might have had a complete defense. The plaintiff might call as a witness some one concerned on his side in the affray, and it would take but little testimony to make out a prima facie case against the spectator. A supposed look or word of encouragement was enough to make him a principal: for the law was then as it is now, that the slightest evidence against a defendant was enough to require the question whether the defendant was properly joined to be submitted to the jury; and as it could not be separately passed upon, it was decided by the jury too late to improve either defendant as a witness for another. Many other cases of great hardship might be supposed, but it is only necessary to state one or two for the purpose of illustration. Suppose A. had sold and delivered his horse to B. and received from him the price, no other person being present except C. who had come with B. as a witness to the transaction. If, afterwards, A. sued B, and C. together in trover for the horse, he could have made out a prima facie case by proving he had owned and used the horse for a long time before, and that the defendants were seen coming together towards A.'s stable, and soon after going away together, B. leading away the horse with C.'s assistance. Before the code, the defendants were not permitted, as witnesses for each other, to explain the true state of the transaction, and the plaintiff would have recovered.
Again, suppose six persons, three on a side, engaged in a personal encounter, no other persons being present. The question to be ascertained on the trial would be, who was the first aggressor. Under the old practice, one person on one side could sue all three on the other side, and call his two confederates as witnesses, and they were necessarily the only witnesses in the cause. The plaintiff in such case had the benefit of the testimony of his two associates, and neither defendant could call his co-defendants as witnesses. The improbability of ascertaining the truth, under such circumstances, and the palpable injustice of excluding the defendants, are obvious. It was cruel injustice to a party to permit his adversary to disqualify his witnesses at pleasure. The law afforded a very inadequate protection to personal rights, when it suffered a plaintiff to place himself in a situation to call all his own witnesses and exclude all the witnesses of the defendant. Upon principle, it must be conceded that every man ought to have the right to be tried upon his own case alone, and to avail himself of all the witnesses who have any knowledge on the subject of the controversy.
It was obviously one object of the code to correct the evil I have pointed out, by enacting in § 397, (code of 1849,) as follows: A party may be examined on behalf of his co-plaintiff or a co-defendant, but the examination thus taken shall not be used on behalf of the party examined. The only restriction upon this right was that which excluded a party from testifying to matters in which he had a legal interest, and that is still retained. (§§ 398, 399.) This provision was generally regarded as having effected the desired change, and was almost universally acquiesced in by the courts. (8 Barb. S.C.R. 655; 10 id. 290; 5 How. Pr. R. 296; 4 Sandf. S.C. Rep. 616.) But even under this broad and seemingly plain provision, it was held in one case that no change had been effected, and that § 397 contemplated only a continuation of the equity practice. ( Munson v. Hegeman, 10 Barb. 112.) And it became necessary to come into this court to correct the erroneous construction given to the statute, which was done at April term, 1853. That decision of this court, in which it is established that, in an action for tort against two or more defendants, each defendant is a competent witness for the other defendants, is precisely in point and decisive of the case we are considering, unless the law on this point has been changed since the adoption of the code of 1849.
The provision of the code I have quoted is as broad as language could make it, and was, I have no doubt, applicable to every action, whether for a wrong or on contract. It was even applicable to an action on a contract joint and not several, if there was any separate defense of which one of the defendants might avail himself, such as infancy, discharge in bankruptcy,c. But as to any defense not separate, that is, for which a separate judgment could not have been rendered in favor of one defendant alone, the statute very properly excluded the testimony of a co-defendant, because as to such matter the witness would be interested and therefore his testimony could not be received. Upon a joint contract, therefore, where a defendant had no separate defense, and where a several judgment could not be rendered without violating the contract, a defendant, if called as a witness, could prove nothing that would not enure to his own benefit, as well as to the benefit of his co-defendant, and, as to such matter, he was therefore interested and of course incompetent. But it was decided by a majority of the supreme court in The Mechanics' Farmers' Bank v. Rider, (5 How. Pr. R. 401,) that even in an action against two defendants on a contract joint and not several, each defendant might be a witness for the other to a matter in discharge of the entire contract. This decision was made in May, 1851, and led to amending the code in July, 1851, so that the provision in question should not be applicable to an action on a contract joint and not several, or in which a separate judgment could not be rendered. The 397th section as thus amended was as follows: "A party may be examined on behalf of his co-plaintiff or a 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 verdict or judgment shall be rendered." The word "shall" in the line last quoted was subsequently changed to "can," which certainly improves the reading of the sentence, without materially affecting its meaning.
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 are sued jointly. There can be co-defendants in no other case; and it declares as to what matters a defendant, 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 to certain matters. He may prove that his co-defendant was not present, or, if present, that he took no part in the assault and battery, or any other separate defence of his co-defendant. As to such a matter, surely, he, the witness, has no interest, and cannot, therefore, be jointly interested with his co-defendant; and as to such matter, a verdict or judgment which is separate and not joint can be rendered; and it is, therefore, within the latter clause of the amendment of 1851. It is very plain that the 397th section applies to every case of a joint and several contract, and to every tort, which is always joint and several, and extends even further, viz. to contracts joint and not several, where one of the defendants has a separate legal defense, as may sometimes happen. Such separate defense must of course be some matter in which the defendant testifying is not jointly interested, and as to which a separate judgment may be rendered, such as infancy, forgery of the signature of the co-defendant, c. This section admits of no other construction than that I have given it, without utterly destroying its sense and rendering it of no effect whatever. To say that it applies only to an action in which a joint judgment cannot be rendered, would confine it to a case where there is only one defendant, for where there are two defendants there may be a joint judgment; and it cannot mean an action where there is but one defendant, for in such case there can be no co-defendant, and the section would be inapplicable.
This court has already put a construction on this section in deciding the case of Munson v. Hegeman above referred to, in which Judge Gardiner said in regard to section 397 in the code of 1849, "the language is broad enough to embrace every case where there are co-plaintiffs and co-defendants, and it seems to me, that the only restriction imposed by implication is the one substantially embraced in terms in this section, as amended in 1851, namely that such party shall not be examined as to any matter in which he is jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not joint verdict or judgment cannot be rendered." I entirely concur in this opinion of the learned judge, that the law on this subject is not at all changed by the amendment of 1851, and that such amendment was made only for the purpose of expressing in terms what before existed by necessary implication; and this view is fully sustained by the history of the legislation on this subject; the fact being notorious, that the amendment of 1851 was adopted for the purpose of correcting what was deemed an erroneous construction put on the act, in the case of the Mechanics' and Farmers' Bank v. Rider, above cited. My reasons for deeming that construction erroneous are fully set out in the dissenting opinion in that case, and need not be here repeated.
In every action for assault and battery, and in all other cases of tort, a verdict and judgment may be rendered in favor of one and against another defendant; that is, in the language of the act, a verdict or judgment separate and not joint may be rendered. In such an action then, a party may be examined for his co-defendant, as to any matter as to which a separate and not joint verdict or judgment can be rendered, and as to any matter in which he is not jointly interested or liable with such co-defendant. In all actions a defendant is a competent witness for his co-defendant. His admissibility as a witness cannot be questioned, but he is restricted as to the subject matter of his examination. If any question be asked tending to establish a defense of which the co-defendant cannot separately avail himself, the plaintiff is at liberty to object and the court must exclude it. Where a witness is called to the stand, who is competent to be sworn and to testify to some matters, but who may not speak of other matters, it is not proper to object to his competency generally and exclude him. It will not be presumed that an improper question will be asked him. It is only by objecting to improper questions when asked, that a party can exclude improper evidence. A party having a witness on 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.
There are many things which the witness excluded in this case might have proved, that would have constituted a separate defense for the other defendants, and as to which the witness had no interest. He might have proved the other defendants were not present or took no part in the rencontre, or that the plaintiff struck first and that they acted only in self-defense. Any of these matters would constitute an entire and perfect defense for the other defendants for whom he would have testified, and would have been entirely distinct and separate from the defense of the witness. The witness might still have been found guilty, and the other defendants, on his testimony, might be acquitted. So too the witness would have been competent to testify as to admissions of the plaintiff, or as to any personal defense arising out of subsequent transactions, such as accord and satisfaction, c. if it had been put in issue by the pleadings. So far, at least, I had supposed the practice at the circuit to be now well settled, that a defendant might testify in behalf of his co-defendant. But the question has arisen and some doubt has been expressed, whether a defendant when called to testify for his co-defendant, can be examined to mitigate the amount of damages as against the defendants for whom he testifies. Upon the mere question of mitigation, where a cause of action is clearly made out against all the defendants, I do not see how one defendant can be a competent witness for his co-defendant, for that is a matter as to which he is jointly interested with his co-defendant, and it is therefore within the exception made by the statute. He is jointly interested, because the damages are not divisible. There can be but one verdict and for one amount against all those found guilty. In Halsey et al. v. Woodruff, (9 Pick. 555,) the jury, in an action of trespass, had, in their verdict, erroneously assessed damages against one defendant at $2 and against the other at $75, and the court gave judgment against them for the larger sum. This was clearly right. The damages not being divisible, each defendant was liable for all the damages sustained, without regard to different degrees or shades of guilt, and he would have been liable to the same extent if sued alone.
In trespass all are principals; and if, in such an action, against two persons, they be proved guilty, and the plaintiff show that he has sustained damage to $500 by their wrongful act, it would not avail one of the defendants that his co-defendant should testify in his favor that he had but little to do in inflicting the injury. If proved, it would not warrant any reduction of the amount of damages. Being concerned in the act, no matter to how small an extent, each defendant would be liable for the whole injury done by his confederates. Such evidence ought not therefore to be received. If confined in its operation to but one defendant, it would be immaterial, because it could have no legal influence; and if it had any legitimate tendency to diminish the amount of damages, it would be a matter as to which the witness was jointly interested with the other defendant, and should therefore be excluded.
If however the case made out against the defendant who is called as a witness is a doubtful one, I see no objection to receiving his testimony to mitigate damages for his co-defendants, under proper instructions to the jury, to consider it if they acquit the witness, and to reject it if they find him guilty. As the court cannot anticipate in doubtful cases, or in cases where there is a conflict of testimony, whether the defendant offered as a witness will be acquitted or convicted, the course I have suggested in such case seems to be necessary for the protection of the rights of the other defendants.
It is said to be difficult for a jury to separate, in their minds, the evidence given by a defendant for his co-defendant from the other evidence, so that the witness shall not himself be benefited by his own testimony. This would be a proper consideration for the legislature, but not for this tribunal. It may be that in some cases a proper discrimination will not be made. The same difficulty exists where a maker and indorser are sued jointly on a promissory note, in which case precisely the same rule of evidence prevails. But the difficulty of discriminating and giving proper effect to the evidence is quite trifling, compared with the greater evil of depriving a defendant sued with others of the same privilege of calling witnesses enjoyed by the plaintiff.
It was perhaps sufficient for the purpose of deciding this case, to have discussed the question whether one defendant in an action for tort can in any case be a witness for his co-defendant; and it may have been unnecessary to inquire as to what particular matters he may be examined. But it seemed to me appropriate to the discussion and a legitimate argument in favor of the construction for which I contend, to show that it secures to a defendant sued with another all of the rights of which he had been unjustly deprived under the late practice. His cause may now be tried so as to give him the benefit of all or of nearly all the testimony he would have had if sued alone. A construction that secures such a practical result is in accordance with the well settled rule of law, which requires a remedial statute to be so construed if possible, as to effectuate the contemplated reform.
It is enough, however, that each defendant was a competent witness in this case for his co-defendant; and the court below having erred in deciding otherwise, the judgment should be reversed and a new trial ordered.
Sec. 397 of the code of 1849, provided that "a party may be examined on behalf of his co-plaintiff or a co-defendant; but the examination thus taken shall not be used on behalf of the party examined." Although the permission to examine a co-plaintiff or co-defendant is given in general terms, so that standing alone, it would cover every case of co-plaintiffs or co-defendants, we held this generality restrained by the subsequent words, upon the general principle that a statute is not to be construed to authorize the doing of any thing which by the provisions of the same statute would be ineffectual for all purposes when done. In Munson v. Hegeman, (March, 1853,) we accordingly held that where the examination of a party by his co-plaintiff or co-defendant, could not be used in the suit at all, without operating on behalf of the party examined, he could not be examined. We further held, that the cases in which the testimony could not be used for the co-plaintiff or co-defendant, without operating in favor of the party examined, were those in which the party examined and his co-plaintiff or co-defendant were jointly interested or liable, and separate judgments could not be rendered. Applying these rules to the case then before us, we determined that one of the defendants could be examined by the other, and reversed the judgment below on the ground that the judge at the trial had refused to allow the defendant, who was offered to be examined on behalf of his co-defendant, to be sworn. That was an action against two for the unlawful conversion of two canal boats, it being alleged that one defendant sold them at auction, and the other bought them. The complaint charged that the defendants acted in concert together, with the purpose of appropriating the boats to their own use, or to the use of one of them, and that they had so converted them. Our decision, therefore, necessarily involved the proposition that defendants sued jointly for a wrongful conversion of personal property, did not, necessarily, come within the rule of exclusion before stated. That of defendants so sued it could properly be said, that they were not jointly interested or liable, and that a separate and not joint judgment could be rendered.
We are now prepared to examine the provision on this subject in the code of 1851, on which the determination of this case depends. Section 397 says, "A party may be examined on behalf of his co-plaintiff or a 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 verdict or judgment shall be rendered." But the examination thus taken shall not be used in behalf of the party examined. The competency of a witness or the admissibility of testimony, must be decided when the question arises and as the case then stands. We cannot, therefore, construe the expression "verdict or judgment shall be rendered," as importing that the competency of the witness, or the admissibility of the testimony, is to be determined according to the verdict or judgment afterwards to be rendered. That makes nonsense of the provision. I think it should be construed "can be rendered," in accordance with the amendment of 1852. The defendants were sued jointly for an assault and battery. The court refused to allow either of them to be sworn and examined on behalf of the others, thus in effect determining that no supposable state of the case could render one examinable for the other or others. Now it is apparent that one defendant is not jointly interested with the others, because his interest is that the others should be found guilty, for thereby if he also is found guilty it may be that the judgment will be levied out of the property of the others, in which case as there is no contribution between wrong-doers, he would in effect escape altogether; nor are they jointly liable, because although a recovery in form joint may be had against all who are convicted, and although the plaintiff has alleged a joint trespass, he may recover against any one or more, and the others be acquitted. The liability is, therefore, not necessarily a joint liability of all who are sued. A matter cannot be said to be one in which both are jointly interested or liable, unless from the nature of the case, the same event necessarily attends on the rights of both. If one may be acquitted and the other convicted, in respect to their original liability, I cannot see the jointness. This is obviously true in respect to persons charged as joint trespassers, and always was the law. That in such a case a separate and not joint verdict or judgment may be rendered, always was and still is the law; one may be acquitted and the other convicted, and if that does not constitute a capacity to have separate verdicts and judgments, I cannot conceive what would.
It was argued that the statute should be read "as to which a separate verdict or judgment can be and a a joint verdict or judgment cannot be rendered." If the statute were so worded I am ready to concede that the consequences drawn from that construction would follow. But the difficulty is that the statute is not so worded, and so to construe it gives no other force to the language than would have been conveyed if the words had stood, "as to which a joint verdict or judgment cannot be rendered." So read it would render the whole section nugatory, for in every action where there are more defendants than one there may be a joint judgment. It is proposed to borrow the exposition of this statute from the rules which governed the examination of co-parties in suits in equity, and to hold it to be substantially an adoption of those rules, with the addition of those few cases in which, by statute prior to the code, one party could be examined at law in behalf of or against a co-party. I do not think that the old rules upon this subject form any guide for the construction of the code. Almost every section of it is pregnant with an intention to alter the law, and nowhere is that intention more conspicuous than where it deals with the subject of the competency and examination of witnesses. There is now but one method of procedure, embracing all cases, both at law and in equity, and one set of provisions, which are to govern all cases. Wherever the lawmakers have recognized in distinctions previously existing, a foundation belonging to the nature of the subject, and not to the artificial system in which it was included, and have thought those distinctions proper to be still preserved, they have so provided. How far that course was proper to be pursued, was a matter as to which their determination was final as their power to act was plenary. If the language in which they have conveyed their will does not by its own force continue those rules, and preserve those distinctions, I am unwilling to strain its obvious import for the sake of conformity to them.
The judgment should be reversed and a new trial ordered, costs to abide the event.
In the code of procedure enacted in 1849, the provision enabling parties to call their associate plaintiffs and defendants, was in these words: "A party may be examined on behalf of his co-plaintiff or a co-defendant; but the examination thus taken shall not be used on behalf of the party examined." ( Laws 1849, p. 692, § 397.) Before this cause was tried the provision had been amended, by inserting at the end of the first branch of the sentence, after the word "co-defendant," the following words: " 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 verdict or judgment shall be rendered." ( Laws 1851, p. 903, § 397.) The law stood thus at the time of the trial. The section was again amended in 1852, by changing the word shall to can, but not altering the provision in any other respect. ( Laws 1852, p. 662, § 397.) This last change was made after the trial of this cause; and, if it modifies in any degree the construction of the provision, it cannot affect the decision we are now to make. But I suppose the meaning was not changed by the substitution of can for shall. As the question respecting the competency of a witness is to be determined when he is offered, which, of course, is while the trial is in progress, and before any verdict or judgment is pronounced, it would be manifestly absurd to enact that its determination should depend upon the subsequent decision of the jury or the court, upon the alleged cause of action. It was intended in both cases to refer to the legal character of the action. If it was an action in which a separate and not a joint verdict or judgment must ultimately be rendered, a defendant could call his co-defendant; and in that case only. The last amendment was designed simply to render the provision more rational and perspicuous, and not to change its meaning.
The action in this case was for an alleged assault and battery. It was for a tort; and it belongs to the class of actions which are joint or several, at the election of the party injured. The plaintiff in this case elected to deal with it as a joint trespass, and he sued all the alleged wrong-doers. If he proved them all guilty, he was entitled to a joint verdict and judgment. Indeed, this is the only judgment he could have if he prevailed against all. If the jury should perversely give separate damages, it would be illegal, and the plaintiff would be entitled to judgment against all, for the largest amount of damages found against any one. ( Halsey v. Woodruff, 9 Pick. 555.) The question here arose after the plaintiff had proved a prima facie case against all the defendants, and had rested. The defendants then offered to call each other, and the alleged error is that the court refused to allow them all to testify for the defense, in this action for a joint trespass. First, then, was each defendant when called, "jointly interested" with the other defendants who respectively called them, as to the alleged assault and battery? That the proposed witness was interested, is clear, if any person was. The defendants were alike interested, one precisely as much as another — the proposed witness equally with the defendant who called him. Each defendant was interested to defeat the action altogether; or, if this could not be done, to make the damages as light as possible. But was the witness jointly interested with the defendant who called him? As the case stood, he certainly was. It was an action for a joint wrong, which, if made out as alleged, must be followed by a joint judgment; for no other could possibly be given. Then take the next word in the statute, liable. Was it a matter in which he was jointly liable with the defendant who called him? If he was liable at all, he was jointly liable, for we have seen that if the action was sustained, there could be no several judgment against them. It would be preposterous to say that perhaps the defendant who called his co-defendant was not liable at all, that is, that he was not guilty. This, of course, could not be ascertained until the verdict was given, and the question was to be determined then, without the light which that verdict would afford. The legislature did not suppose that when a witness was called, the court would inquire, in order to determine upon his competency, how the issue ought ultimately to be decided. The expressions, jointly interested and jointly liable, refer to the nature of the action. If the action sets up a joint interest or a joint liability in the defendants, they cannot be witnesses for each other. If the demand or liability sued on is several as respects the several defendants, that is, if one is sued for one thing, and another for another thing, in the same action, as is often the case, each can call the others as a witness. But the remaining language of the statute is, if possible, still more conclusive. It must be a case, or matter, "as to which a separate and not joint verdict or judgment" can be rendered. In other words, it must be such a claim, demand, or cause of action, as that a separate judgment can be rendered against the party calling the witness, and it must, moreover, be such a one that a joint judgment, against such party and the proposed witness, cannot be rendered. Here again the statute looks at the theory of the action, or matter in controversy. It assumes that the plaintiff may prevail, and not that he will be certainly defeated. It must be a case which if sustained, as alleged, will produce separate judgments, and in which a joint judgment cannot be given. This is the direct opposite of this case. Here, if the plaintiff recovers according to the complaint he must have a joint judgment, and cannot by any possibility have separate ones. It is manifestly, therefore, a case in which the defendants cannot, under this statute, give testimony for each other. If the defendants were competent witnesses for each other, in this action, co-defendants can be examined for their associates, in every possible case. It has been argued that the restriction in the amendment of 1851, is limited to actions upon joint contracts. Formerly, it is true, a plaintiff suing on an alleged joint contract must recover against all the defendants, or fail altogether in the action. But this is otherwise by the code. If in such an action it appear that one or more of the defendants are not joint contractors, as in the case of too many sued as partners, judgment passes against those who are really parties to the contract, and the others are entitled to judgment in their favor. ( Code, § 274.) In such an action separate judgments may be given, if the proof inculpates one and acquits the other, precisely as in an action for a tort. The action is upon a joint liability in both cases, and in both cases a joint judgment may be given; and such a judgment must be given, if the plaintiff proves his case. If it be allowable to strike out of the statute the words, "and not joint verdict or judgment can be rendered," which is indispensable to enable co-defendants in actions of tort to swear for each other, I see no difficulty in holding that co-defendants, in actions ex contractu, are competent witnesses for their associates; and thus, the restriction carefully incorporated into the section in question, by the amendment of 1851, becomes entirely nugatory. These are some of the difficulties which the defendants have to encounter in construing the statute so as to meet their views. I may as well state here that when the words of the statute are plain and explicit, there is no room for the business of construction. The duty of the court is simply one of obedience. We read in the provision, that where the matter in litigation is one in which a joint verdict or judgment cannot be rendered against the defendants, they may call each other as witnesses; and it is not pretended that there is any other provision allowing them to testify for each other. How then can it be said that in an action against several for a joint trespass, where a joint verdict and judgment is a matter of course if the action is sustained, that each defendant can be sworn for the others? To me it seems inconsistent with any fair pretense of loyalty to the statute.
There is a numerous class of cases where the several defendants have no joint interest or liability, and where several judgments must be, and joint judgments cannot be rendered. Actions against the several parties to bills of exchange and promissory notes, is one instance. The holder may sue the maker and indorsers of a note, or the acceptor, drawer and indorser of a bill in one action. But their liabilities are several, and no joint judgment can be rendered. The statute applies to this case. Again, in a great many cases formerly cognizable in courts of equity, but which are now dealt with under the provisions of the code, the defendants' interests are several. In suits by a judgment creditor, for instance, all the parties who have his property in their hands are made defendants, though there is no sort of privity among them, and the decree will be several against each according to his individual liability. So in bills to enforce a trust, all the parties who have interfered with the trust estate are made parties; and so also in suits to foreclose, or redeem mortgaged premises, separate and independent incumbrancers are proceeded against in the same suit. Then again there may be several plaintiffs whose interests are separate and distinct, as in the case of separate and independent creditors, legatees, next of kin and cestuis que trust, suing a trustee or personal representative of a deceased person. These persons may, and when not inconveniently numerous, must join as plaintiffs. It is to this class of cases, in my opinion, that the section under consideration refers, as it is to such cases, only, that the language applies. The section, it will be observed, allows co-plaintiffs, as well as co-defendants, to be witnesses for each other, subject to the same restrictions; but it will be impossible, I think, to imagine a case where it would not be preposterous for one plaintiff to be a witness for his associate plaintiff, unless it be one of the class last referred to. In all actions of strictly legal cognizance, the plaintiffs where there are several must have a joint interest, and there can be no recovery unless all are found entitled to judgment. Suppose a case, therefore, where several joint owners of real or personal property have occasion to prosecute several persons for an injury to such property, upon the rule contended for by the defendants in this case, all the defendants could swear for each other, while none of the plaintiffs could be heard to say a word in their own behalf.
It is supposed by the defendants' counsel that the word matter in the section in question, is used in the sense of topic, feature, or circumstance. Thus, when the defendant J. McKinnon called the defendant A. McKinnon, it is argued that it was to give evidence as to the individual complicity of the former in the assault; and the inquiry is said to be whether the restrictive words in the statute can be predicated of that matter. If this were a just criticism it would not aid the defendants, for assuredly a joint verdict and judgment could and must be rendered upon that particular subject, if found in favor of the plaintiff. But this is not a correct exposition of the statute. The language of the restrictive sentence is evidently taken in part from the 73d rule of the late court of chancery, which allowed the examination of a co-defendant against the complainant "as to any matter in which he was not interested." The statute in question super-adds the other words, to make it still more clear, that the right to examine was confined to the case where one of the defendants was charged with a distinct and separate liability, with which the witness had no connection, and to limit the testimony to facts relating to that separate liability. Under the rule prevailing in chancery, a defendant could never be heard as a witness where he and the defendant who called him were jointly charged with the same matter, though the case were such that one might be acquitted by the proof, and the other found responsible. ( Whipple v. Lansing, 3 John. Ch. R. 612.)
Again it is argued that the provision which has been allowed to remain in the section, declaring that the testimony of a party shall not be used in his own behalf, has an important bearing upon the case. I think it has none at all. When parties are sued upon several liabilities, there are generally some grounds of defense common to them all. Take the case of separate indorsers upon a promissory note. Usury, or payment by the maker, would discharge all the parties. So persons prosecuted in one suit as separate and independent trustees of a judgment debtor, could defend themselves by proof showing the judgment paid, or otherwise discharged. These defenses might be proved by one of the defendants, for the benefit of the others, and the facts would be equally pertinent for the defense of the witness; but the provision referred to would prevent him from availing himself of it. In fact the clause is just as necessary in the way I read the statute, as upon the construction for which the defendants contend. It has no tendency to show that a defendant can be a witness in respect to a matter wherein he is jointly charged with the party calling him.
It is no necessary part of the duty of a judge to vindicate the policy of the law. Were it otherwise, it would be easy to show that the maxim which forbids a party to be heard as a witness in his own case, is founded in wisdom, and ought not to be changed to suit any speculative theories of the nature of evidence. Men of ingenious minds have fancied that the truth, which is the object of all contrivances for the investigation of facts, would be more likely to be attained, if the parties were allowed to give their own account of the disputed transaction as witnesses upon their oaths. No doubt this would sometimes be the case, though my own experience, in some instances where this has been done by consent, would be any thing but favorable to the practice as a means of settling contested matters of fact. But a judicious lawmaker will not limit himself to a single aspect of the question where a long established rule is sought to be changed. In a large class of litigated cases, especially in actions like the one under review, the parties come to the trial with minds excited by interest, prejudice and passion. A system, which shall invite them to take the stand as witnesses against each other, will offer a premium to the practice of dissimulation, craftiness and perjury; and will in my judgment inflict an injury to public morals, which no fancied advantage can in any degree atone for. The notion of limiting the application of the testimony to the case of the other parties jointly charged with the witness, would be found in most cases entirely illusory. The present action furnishes as good an illustration of that point as any other. Here were five defendants charged with a joint assault and battery upon an individual. Testimony from indifferent witnesses had made out a prima facie case. It is therefore probable that a personal conflict of some character had taken place, and that the question was as to which party was the aggressor, the plaintiff or the defendants. Then it is proposed that each defendant shall give his account of the matter on oath, not professedly as evidence on his own behalf, but as a witness for the others, and the jury, sitting without the conveniences for taking minutes, and not possessing habits to qualify them for making a discriminating analysis of the evidence, are expected to give a verdict upon the case of each defendant, not upon the general merits of the conflict, according to all the testimony, but by applying to each defendant, a history of the occurrence, of a different character, it may be, from that which is to be applied to each of the others. This would be sufficiently intolerable if the plaintiff's account was also to be heard: but he, unfortunately having no associate on the record, must submit to be silent and have the case determined upon the oaths of the very individuals whom he has prosecuted for an outrage upon his person.
I am in favor of affirming the judgment of the supreme court.
ALLEN, J. also delivered an opinion in favor of affirmance.
Judgment reversed.