LINGAN v. HENDERSON. 267

harmonizing so entirely with all the established principles of law
which have any bearing upon the same subject,

It appears then, that there are, at common law as well as in
equity, a variety of cases in which the plaintiff, either because of
the peculiar nature of his cause of action, or because of the nature
of the several defences made to it, may obtain relief against some
one or more of the defendants, although he may totally fail in his
suit against all the others. In equity this more frequently happeris
than at law; but in all cases, it arises not from the mere manner
or form of proceeding, but from the substantial nature of the case
itself, or of the defence which may have been made.(n)

In all cases where there are a plurality of defendants, they are
each of them charged as such; because of their having an interest
in or being jointly or otherwise liable to the alleged cause of suit.
Hence it is in general true, that the answer of one defendant can-
not be read in evidence against another; because in such case
there is no opportunity for cross examination; and also because
each defendant, considered as a necessary party, must have some
interest in the event of the suit; and is, therefore, an incompetent
witness.(o) But there are exceptions to this general rule; as where
the defendant against whom the answer is proposed to be read
claims under him who made it; for a defendant cannot deny the
title as thus set forth by him under whom he claims ;(p) or where
the defendants are partners in trade, and as such are then compe-
tent to bind each other by such a contract as that of which they
speak.(q) So too in the peculiar case of corporations, one or more
of its officers may be made co-defendants, whose answers may be
received against the body politic; and so likewise as to arbitrators
and attorneys, whose answers may be read against the other par-
ties; and this from necessity, or because such co-defendants may
be converted into witnesses, (r) And so it would seem at common
law there is a case where, from necessity, one of the defendants
may be called on as a witness to testify for the plaintiff against the
co-defendants,- " inasmuch as some books have said, that though
the witness named in the deed be named a disseisor in the writ,
yet he shall be sworn as a witness to the deed."(s)

(») Royal v. Johnson, 1 Rand. 421,—(o) 2 Mad. Cha. 441; Fereday v. Wight-
wick, 4 Russ. 114.—(p) Field v. Holland, 6 Cran. 24; Osborn v. U. S. Bank,
9 Wheat. 832; Jones v. Magiil, ante 177.—(q) Clark v. Vamiemsdyk, 9 Cran. 156.
(r) Rybott v Barrel!, 2 Eden, 133; Dummer v. Corpo. of Chippenham,-14 Yes. 252,
Le Texier v. Anspach, 15 Ves. 164.—(*) Co. Litt 6.