Cunningham v. Carpenter , 10 Ala. 109 ( 1846 )

GOLDTHWAITE, J.

1. It will be seen the assignment of errors covers more ground than the party has thought proper to occupy in his argument. We notice this, not because we suppose there is any merit in what is passed over, but merely to state, the practice of the court is, to examine such errors only as are insisted on by counsel.

2. We think the permission allowed by the court to Watson, to dismiss the suit so far as he was concerned in interest, amounts to nothing Avithout ascertaining what that interest was. Courts of law are every day in the practice of giving effect to the assignment of choses in action, and will not permit a mere nominal plaintiff to dismiss a suit, or otherwise interfere with the just rights of the equitable owner. [Welch v. Mandeville, 1 Wheat. 233 ; Wardell v. Eden, 2 Johns. Ca. 121; Chisholm v. Newton, 1 Ala. Rep. N. S. 371.] On the same ground of fraud, the courts protect the rights of one partner against the acts of another, who attempts to extinguish the partnership demand by his individual debts. [Pierce v. Pass, 1 Porter, 232.] Substantially there is no difference whether the partner is allowed to extinguish the demand of the firm, by his individual debt, and so interfering with the conducting of a suit as to produce the same result. We think the court would have b.een authorized to refuse the dissatisfied partner permission to interfere with the management of the suit, especially when the offer was made to secure him against costs.

3. It is unimportant to inquire at this time, whether the plea demurred to is good or bad, because it presents no new or affirmative matter independent of the declaration. The plaintiffs to make out their case, were compelled to disprove the precise fact stated in the plea, or rather to prove a state of facts inconsistent with those there stated. It is evident then the party has had the advantage of the plea, within the general issue, andas no exception was taken at the trial to the case then made, no injury has been sustained, even if the plea itself is good. [Jackson v. McKenzie, 4 Ala. Rep. 230; Rakes v. Pope, 7 Ib. 161; Shehan v. Hampton, 9 Ala. Rep. .]

4. But in excluding Watson as a witness, we think the court erred. It will be seen he consented to be examined, and whatever may be the rule in other courts, excluding a plaintiff as a witness, when objected to by his co-plaintiff, with us the practice is otherwise. Independent of any legislation upon the subject, we should incline to the opinion that a plaintiff not objecting to be sworn, might be examined, as his admissions on oath might be compelled by a bill of discovery. However this may be, our statute invests the common law courts with authority to compel the answer to interrogatories when exhibited in the mode prescribed by that act. Under this act we apprehend Watson could be examined, and the circumstance that he was willing to aid the defendant, or defeat the action, would not take away the right of the defendant to examine him. We can perceive no reasonable objection to his assenting to be examined as a witness, when an examination could be forced in another form. Although the cases hitherto decided by this court do not extend quite so far as the principle now insisted for, yet they seem to lead to that result. [Duffee v. Pennington, 1 Ala. R. 506; Pruit v. Marsh, 1S. &P. 17.]

For this error the judgment is reversed and the cause remanded.