Opinion
(December Term, 1859.)
A party defendant in a suit has a right to have an order for taking the deposition of a codefendant, not concerned in interest, in favor of the applicant.
APPEAL from an interlocutory order made by Dick, J., at the last Spring Term of the Court of Equity of NASH.
Dortch and Moore for plaintiffs.
Cantwell, Lewis, and J. H. Bryan for defendants.
At this term the following affidavit was filed in behalf of the trustees of the university, who are codefendants with Benjamin D. Mann, Barbara Goodwin, Sarah Pope, Unity Parker, and others, viz.:
"Edward Cantwell, solicitor for the university, maketh oath that Sarah Pope and Barbara Goodwin are material witnesses for their codefendant, the university aforesaid, and are not interested on the part of the university in this case." And a motion was made for an (67) order to take the depositions of the said Sarah Pope and Barbara Goodwin, which was opposed by the plaintiffs on the ground that they were parties and had an interest identical with theirs, but the objection was overruled by the court and an order was made in these words:
"It appearing to the court, upon the affidavit of Edward Cantwell, that Sarah Pope and Barbara Goodwin, defendants in this case, are material witnesses for the trustees of the university, defendant, and are not interested on the side of the applicant."
"Ordered that the trustees aforesaid have leave to examine the said Barbara and Sarah, first giving the plaintiffs notice of the time and place, as required by law, subject to all just exceptions."
From which order the plaintiffs prayed an appeal to this Court, which was allowed.
We think the affidavit was sufficient to authorize the order allowing the trustees of the university to take the deposition of Sarah Pope and Barbara Goodwin, who are codefendants, subject to all just exception.
It is settled that one cannot object to being examined as a witness on the ground that his evidence will expose him to a debt or civil action, or to a civil liability other than a forfeiture or penalty. Jones v. Lanier, 13 N.C. 481; Harper v. Burrow, 28 N.C. 30. Doubts were at one time entertained upon this question in courts of law, but it has always been the practice in equity to compel a discovery, notwithstanding the matter disclosed would prejudice the interest of the party, and he could demur to the discovery only when it would subject him to a penalty, forfeiture, or criminal prosecution. It is admitted that a plaintiff can compel such discovery from a defendant, and the defendant can, by a cross-bill, compel a like discovery from the plaintiff or a codefendant. In our case the trustees of the university may compel a (68) discovery from their codefendants, Sarah Pope and Barbara Goodwin, by a cross-bill, but the discovery could only be used against them and would not be evidence against the plaintiffs because they would have no opportunity to cross-examine, and the purpose of taking their depositions is to make it evidence against the plaintiffs. If, as we have seen, Sarah Pope and Barbara Goodwin cannot refuse to give testimony because it would prejudice their interests, we are at a loss to see any ground on which the plaintiffs can base an objection to it, as they will have an opportunity to cross-examine, and may thereby eviscerate the facts more fully than can be done by a discovery in an answer, and the fact that their answer to a cross-bill would not be evidence against the plaintiff shows the propriety of taking their depositions, for otherwise the facts within their knowledge, which it is alleged are material, cannot be made evidence so as to affect the plaintiffs.
Our attention was called to the form of the usual affidavits in such cases, where it is set out that the party whom it is proposed to examine is "not concerned in interest." The words are explained in Maitland v. Williams, 36 N.C. at p. 106: "It will be a good exception (at the hearing) that the witness has an interest in the matters examined to; and if this appears, his deposition cannot be read. Now the interest which forms the subject of exception to a witness always means an interest adverse to the exceptant. It would be a singular objection to the reception of testimony that he who testifies has an interest which may bias him in favor of the objector." In our case it is a singular objection for the plaintiffs to make — that Sarah Pope and Barbara Goodwin are concerned in interest! In England, a defendant may now be examined on the side of his interest. 6 and 7 Victoria, chap. 85, sec. 1, provides "that in courts of equity, any defendant may be examined as a witness, saving just exceptions, and that any interest he may have shall not be deemed a just exception to his testimony, but shall only be (69) considered as affecting or tending to affect his credit," showing that the words "not concerned in interest" are used in the sense of interest on the side of the party who seeks to have his deposition taken. Adams Equity, 365.
PER CURIAM. Decretal order affirmed.