McGown v. Randolph , 26 Tex. 492 ( 1863 )

Wheeler, C. J.

We are of opinion that the court did not err in the instructions to the jury as to the legal interpretation of the contract and undertaking on the part of the defendants.

We think it competent for the plaintiff to propound interroga-1 tories to one only of several defendants under the statute. He inay be willing to make one of them & witness to testify against his interest, when he -would not another, or one of them may be cognizant of the facts, and the other not. The ansxverS of the dé-1 fendánt appear to have been taken iñ conformity to the Statute, (Hart. Dig., 735, 739.)

The only remaining question Which seems to require notice iS Whether the answers of the defendant, Daffies, were admissible against Ms co-defendant. And We are of opinion that they were, &nd entitled to the s'ame weight ás the testimony of any other Witness. He xvas not incompetent merely because a party to the ^record. (Parsons v. Phipps, 4 Tex. R., 341.) He xvas not disqualified by his interest, because it Was adverse to the party calling him, and in favor of the party dbjecting 'to Ms deposition. (Id.; Tucker v. Willis, 24 Tex. R., 247; Gill v. Campbell, Id., 405.)

The objection that hiS Co-defendant did not havé the opportunity to cross-examine, wé dó not think well founded in fact. The requisite notice was gixmn of the taking of the deposition of the Witness, and the appellant might have propounded interrogatories if he had seen proper.

Wh are Of opinion that there is no error in the judgment, and it is affirmed,

Judgment affirmed.