A Practical Treatise on the Law of Partnership

of a verdict for the plaintiff, the bankrupt was liable to the costs of the action, and was therefore interested in the event (a). But the general rule appears to be, that where the debt is barred by the certificate, the costs, as accessory to the debt, are likewise barred, even though they may not be proveable under the fiat (b). Lord Kenyon's objection, therefore, appears to be no longer in force; and hence, in cases of this nature, the jury may be directed to find a verdict for the bankrupt defendant, and he may then be admitted as a witness for the co-defendants (c). It has been held, however, that this is entirely at the discretion of the Judge; and that although, upon issue joined, it may be clear from the evidence that the defendant who has pleaded his bankruptcy must have a verdict in his favour, yet he is not entitled to have that verdict recorded in the middle of the cause, in order that he may be called as a witness for the co-defendants (d).

Where three of several defendants suffered judgment by default, it was held that one of the three was a competent witness to produce, on behalf of the fourth, the partnership deed under which the four had been acting in their dealings with the plaintiff (e).

A copartner of the defendant may likewise be examined in his behalf, by consent of the plaintiff. But in a case where a defendant pleaded the non-joinder of his copartner in abatement, and, by consent of the plaintiff, called his copartner to prove the plea, and, upon examination, the copartner denied the partnership, it was held, that although the defendant might call other witnesses to prove that fact, yet he could not offer in evidence his copartner's admission of the partnership contained in an answer in Chancery, as, by that mode of proceeding, he discredited his own witness (f).

Where the plaintiff wishes to object to the testimony of a

(a) Raven v. Dunning, 3 Esp.

283.

(b) Ex parte Poucher, 1 Gly. & Jam. 385, and see the cases there cited; but see 4 Bing. 57.

(d) Emmett v. Bradley, 1 Moore, 332; Currie v. Child, 3 Camp. 283; Carpenter v. Jones, 1 Mood. & Malk. 198. But see Bate v. Russell, 1 Mood. & Malk. 333.

(e) Colley v. Smith, 4 Bing. N. C. 285; 5 Scott, 700.

(ƒ) Ewer v. Ambrose, 3 Barn. & Cres. 746; 5 Dowl. & Ryl. 629.

witness, on the ground of his being a copartner with the defendant, he should ask the witness, on the voir dire, whether he is not a partner (a). If he deny the partnership, it will be competent to the plaintiff to examine other witnesses in order to establish the partnership, if he think that such evidence will have weight with the jury (6). But in order to deprive the defendant of a witness, on the grounds just stated, a partnership must be satisfactorily proved. Therefore, where, to an action against a person as a trader, the defence was, that the business was carried on by A., and not by the defendant, and that the defendant only worked in A.'s shop as a servant, it was ruled that the plaintiff could not, by merely suggesting a partnership between A. and the defendant, deprive the defendant of A.'s testimony to this fact (c).

VI. In an action against several for a joint tort, it is not necessary that the evidence should affect all the defendants; some may be found guilty, and others acquitted (d). But, in a case where the plaintiff had proved all the defendants guilty of a joint trespass, and then proved a second trespass against three only, expecting afterwards to implicate all in this second trespass, it was held that he had, by so doing, elected to waive the first, and therefore being unable to bring home the second trespass against more than the three, the others were acquitted; and it was held that they should be acquitted, before the three went into their defence (e).

It seems to be scarcely settled how far, in actions of tort, the declarations of one defendant are to be received in evidence against another. In The King v. Hardwick (f), Lord Ellenborough observed, that when a joint trespass has been established, the declaration of one defendant as to the motives and circumstances of the trespass will be evidence against all who

(a) Cheyne v. Koops, 4 Esp. 112. (b) See Ewer v. Ambrose, ante, p. 546, and 1 Phil. Ev. 131. Formerly, it was held, that he could not resort to both methods to establish the partnership. 10 Mod. 151; Ambler, 593.

Sel. 588; Holroyd v. Breare, 4 Barn. & Ald. 700. To find all guilty in trover, a joint conversion by all must be proved. 2 Phil. Ev. tit. "Trover."

(e) Wynne v. Anderson, 3 Car. & Payne, 596.

(f) 11 East, 385.

are proved to have combined together for the same object. But the doctrine contained in this dictum appears to be laid down too broadly; and a learned writer conceives that such declarations are only admissible as have been made with reference to a concerted plan, and in pursuance of a common object (a). And this opinion has been adopted in a subsequent case. An action was brought against several defendants for placing the flap of a cellar, for the purpose of unloading wine, so negligently, that it fell upon the plaintiff, and injured his leg. One of the defendants having suffered judgment by default, a statement made by him was offered in evidence not only against himself, but also against the other defendants; and The King v. Hardwick was cited. Tindal, C. J.-"The statement is, no doubt, evidence for one purpose against the person himself, because the jury have to say what damage has been sustained; but the plaintiff wishes to go farther. It seems to me, the authority relied on on both sides applies to a case where there is a common object to be furthered; but here there was no common object; it is mere negligence. You must make the parties joint agents for one common object, before you can make the declarations of one who has suffered judgment by default evidence against the others." His Lordship then directed the jury that they were not at liberty to make use of the admission as against the other defendants (b).

But, where a joint trespass has been proved to have been wilfully committed by several defendants, then it appears that a declaration made by one of the defendants relative to that trespass is evidence against all. Accordingly, in a late case, where three defendants had jointly imprisoned the plaintiff, the declaration of one of the defendants, made some weeks after, in the absence of the others, tending to shew that the imprisonment arose from malice, was ruled to be admissible in evidence, in an action for false imprisonment brought against all three (c).

We have seen that if a joint tort be committed by several partners, the plaintiff has his election to sue all or any of them (d). In trespass, if one whom the plaintiff designed to make use of as a witness be by mistake made a defendant, the

(a) 1 Phil. Ev. 96.

(b) Daniels v. Potter, 4 Car. & Payne, 262; 1 Mood. & Malk. 501.

(d) Ante, p. 505.

Court will, on motion, give leave to omit him, and have his name struck out of the record, even after issue joined; for, the plaintiff can in no case examine a defendant, though nothing be proved against him (a). But, in trespass, one who suffers judgment by default is not a competent witness for the plaintiff (b). In an information for a misdemeanour, the plaintiff may enter a nolle prosequi as to one defendant, and then examine him (c).

But a particeps criminis, who is not made a defendant, may be a witness for the plaintiff, although left out of the declaration for that purpose (d). It is remarkable that it should be so, as such witnesses are open to a strong objection in point of interest; for, in an action of trespass, a recovery against one of several co-trespassers is a bar to an action against the others. Yet, as Lord Tenterden observed, scarcely a circuit passes without an instance of a person who has committed a trespass being called to prove that he did it by the command of the defendant (e). However, the circumstances under which a witness is so called, mightily lessens his credit (f).

It has been ruled, that a defendant in an action of trover, who suffers judgment by default, may be a witness for the codefendants, as he is not liable to the costs of the issue tried. against the other, and is not himself released, whatever may be the event of that issue (g). Moreover, if a material witness for a defendant in ejectment is made a co-defendant, and lets judgment go by default; or consents to let a verdict be given against him, he may be a witness for another defendant (h). In an action of replevin against a broker, it has been ruled, that a

(a) B. N. P. 285.

liable to costs down to the time of

(b) Chapman v. Graves, 2 Camp. signing the interlocutory judgment,

333, n.

(d) Id. 286.

(e) 5 Barn. & Cres. 387.

(f) B. N. P. 286.

(g) Ward v. Haydon, 2 Esp. 553. See S. C. 2 Peake, 126. In a note to the latter report, it is observed, that the decision in this case is doubtful, inasmuch as Lord Kenyon supposed that the witness was only

and no further; but that the practice is, to tax the whole costs jointly against both defendants, so that a witness who has suffered judgment by default, as in the principal case, is most materially interested in absolving the other defendant from his liability.

(h) Dormer v. Fortescue, B. N. P.

285.

person who at the time of the distress was in partnership with the broker, is a competent witness for him (a).

If in tort any person be arbitrarily made a defendant to prevent his testimony, the plaintiff shall not prevail by that arti fice; but the defendant against whom nothing is proved shall be sworn notwithstanding, for he does not swear in his own justification, but in justification of another. However, this rule is only to be understood where there is no manner of evidence against the defendant; for, if there be, his guilt or innocence must wait the event of the verdict (b). If there be no case whatever against him, it seems, according to some authorities, to be in the discretion of the Judge, whether the jury shall in the middle of the cause acquit him, in order to make him a witness for the other defendants (c). And it has been ruled that he has no right to be acquitted for such purpose, until all the other evidence for the defendants is furnished (d).

VII. We may conclude this section by referring to the statute 3 & 4 Will. 4, c. 42, sect. 26, which renders certain witnesses competent, who would otherwise be rejected on the ground of interest. That statute, "in order to render the rejection of witnesses on the ground of interest less frequent," enacts, "that if any witness shall be objected to as incompetent, on the ground that the verdict or judgment in the action, in which it shall be proposed to examine him, would be admissible in evidence for or against him, such witness shall nevertheless be examined; but in that case, a verdict or judgment in the action, in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him; nor shall a verdict or judgment against the party on whose behalf he shall have been examined, be admissible in evidence against him, or any one claiming under him." And by section 27, "the name of every witness objected to as incompetent, on the ground that such verdict or judgment would be admissible in evidence for or against him, shall at the

(a) Duncan v. Meikleham, 3 Car.

& Payne, 172.

(b) B. N. P. 285.

Bouser v. Curtis, 3 Car. & Payne, 597, n.

(d) Wright v. Paulin, Ry. & Mood. 128. But see post, p.554, n. (c).

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A Practical Treatise on the Law of Partnership: With an Appendix of Forms