
    Same Term.
    
      Before the same Justices.
    
    Munson and Suiter vs. C. Hegeman, jun. and A. Hegeman.
    Co-defendants, charged with the commission of a joint offense—as the conversion of property—can not be witnesses for each other.
    Where, upon the trial of a cause, the counsel agree as to what is admitted by the pleadings, and the judge, without looking into the pleadings, assumes the statement of their contents to be true, it is too late for either party to question the truth of such statement, for the first time, on the argument of an appeal.
    This was an action under the code of procedure, for the conversion of two canal boats; which the complaint alledged the defendant Cornelius Hegeman jun. wrongfully caused to he sold at auction, in July, 1849, and which the other defendant, A. Hegeman, bid off, at the sale. The complaint alledged that the seizure and sale of the canal boats was against the will, and in violation of the plaintiffs’ rights of property therein; and that they, forbade the sale; and that the defendants, in the seizure and sale of the boats, acted in concert together, and with the purpose and view of appropriating the same to their own use and benefit; or to the use and benefit of one of them, and of wrongfully depriving the plaintiffs thereof. The action was tried at the Herkimer circuit, in April, 1850, before Justice Gridley. The plaintiffs recovered a verdict for $200, on which judgment was entered at the circuit, and the defendants appealed to the general term. The proceedings at the trial are stated in the opinion of the court.
    
      G. B. Judd, for the appellants.
    
      E. S. Capron, for the plaintiffs.
   By the Court, Gridley, P. J.

On the trial of this cause, the counsel for the plaintiffs, after giving evidence of the ownership of the boats, and of their value, stated to the court and jury, that it was admitted by the pleadings, that Cornelius Hegeman, one of the defendants, had sold the two boats at public auction, before the commencement of this action; and that Aaron Hegeman, the other defendant, had bid' them off; that the plaintiffs were present and forbade the sale; and that they had demanded of the defendants the delivery of the boats before this suit was commenced; and that the defendants had refused to deliver the same on such demand. This statement was not in any respect denied by the counsel for the defendants. The plaintiffs having rested their cause, the counsel for the defendants moved that the plaintiff be nonsuited; and, at all events, that Aaron Hegeman be discharged, on the ground that there was no evidence against him. This motion was denied, for the reason that the facts proved and admitted, showed a prima facie case against both defendants. »

This decision, it is now urged, was erroneous; because, upon a more careful examination, it is discovered that the alledged demand and refusal Avas not admitted by the pleadings. This objection comes too late. The admission was assumed by the court as true, without objection or dissent on the part of the defendants’ counsel. Had the objection been made on the trial, - the counsel for the plaintiff might have adduced proof of the facts; and had an objection been made to the introduction of the proof, an amendment of the pleadings might have been allowed; or, if necessary, for the advancement of justice, the cause would have been permitted to go over the circuit, in order that the new allegation might be answered, on the payment of costs. When the counsel agree as to what is admitted by the pleadings, the judge does not look into them, but he assumes an uncontradicted statement of their contents to be true It is manifestly too late to question the truth of such a statement for the first time on the argument of the appeal. An appeal only lies to correct some error of law committed at the circuit. (Code, 348.) And it is no error of law to receive a statement of facts, upon which both parties agree, as true. The defendants were charged in the complaint to have acted in concert, in depriving the plaintiffs of their property; and both Avere proved by the admission in question to have acted in concert in the disposition and withholding of the boats: Cornelius putting them up and selling them at auction, and Aaron bidding them off; and both refusing to deliver them on demand. That a joint action lies for such a cause, see Sprague v. Kneeland, (12 Wend. Rep. 164.)

At a subsequent stage of the trial, Aaron Hegeman was called to the stand and offered as a witness, generally, for his co-defendant. He was objected to, on the ground that he was joined as a co-defendant with Cornelius Hegeman, in whose behalf he was offered ; that evidence had been given, tending to show both defendants guilty; and that he was charged in the complaint with combining with his co-defendant to convert the boats to their own use. The judge, at the circuit, refused to allow the party Aaron Hegeman, to be sworn, to wMch ruling the defendant’s counsel excepted, and that decision is ■ relied on as a ground of error. This objection involves the construction of the first clause of the 397th section of the code of procedure. The clause reads as follows : A party may be examined on behalf of his co-plaintiff or a co-defendant; but the examination shall not be used in behalf of the party examined.”

It is to be observed that the entire chapter of which this section is a part is devoted to the examination of parties. The first section of this chapter (389) abolishes the action for discovery, as it had prevailed in chancery up to that period. The next section (390) provides for the examination of a party at the instance of an adverse party. The succeeding sections, down to the 396th, are framed with the view of regulating the proceedings in an examination of parties. By the rules of practice in chancery there was a right not only to examine an adverse party, but a defendant might be examined for a co-defendant and at his instance, under certain circumstances. And unless in the new system this right should be reserved, especially in cases of an equitable character, the system would be defective. Accordingly we find this practice preserved in the section now under consideration. It should not be forgotten that all distinction between actions at law and suits in equity has been abolished; and that it was the manifest intent of the framers of the code, to preserve, substantially, under the new system, the benefits derived from the" practice of examining parties in chancery; and that the chapter, in which the section under consideration is found, is entirely devoted to that object: And it is, in my opinion, equally clear that the clause in question was intended as a substitute for the practice of examining a party against either the plaintiff or against a co-defendant, as that practice was known and understood in the court of chancery when the code was passed. A party might be examined in chancery as to matters in which he was not interested, subject to all just exceptions. (See Rule 73 of the Standing Rules of 1844 ; 2 Paige, 54; 1 Barb. Ch. 585.) Merely being a party to the record, unless interested, was no objection to a witness in that court, as it was in a court of law. (Lupton v. Lupton, 2 John. Ch. 625.) Still it was an invariable rule that no party could be examined except as to matters in which he was not interested. (Rule 73.) In like manner the 399th section of the code declares that the 6 last section [meaning the 398th, which provided that interest in the event of the suit should not disqualify a witness] should not apply to a party to the action.” Again ; in chancery “ a defendant, charged in the bill of complaint with colluding with his co-defendant in regard to transactions sought to be impeached, can not be a witness for his co-defendant, especially when he has an interest in the cause.” (Whipple v. Lansing, 3 John. Ch. 612.) It is only when a decree pro confesso has passed against a party, making him liable for debt and costs, that he can be examined for his co-defendant. (8 Paige, 461.) And in Mann v. Cooper, (1 Barb. Ch. 185,) it was held that a party could not stipulate his answer off the files and consent to a decree against him, and then be examined for his co-defendant.

How this is a case where it was proved that both defendants were combining to deprive the plaintiff of his property, by a concert of action. It is true that in actions of tort one defendant may be convicted and another acquitted; and had Aaron Hegeman been offered, to testify to a distinct matter, in which he was not interested, he would have been admitted. But he was not. His evidence would have been as applicable to his own case, and would have tended to defeat the action against himself equally as against his brother. Fraud is a tort. Yet in chancery, where a party is charged with colluding with his co-defendant to defraud the complainant, he can not be sworn. But the broad language of the section (397) is relied on as indicative of an intention on the part of the legislature to create a new rule, by which defendants charged with a joint liability, whether it arise out of a tort or contract, may be respectively sworn for each other. I however can see no reason for adopting a construction so alarming as that would be. We have the strongest reason for supposing that the legislature íperely intended to adopt the rule as it prevailed in chancery, and enact it as a part, of the statute law applicable to cases arising under the code.

In aid of this rational interpretation of a controverted provision of the code, it is well worth while to refer to a salutary rule of construction. Whenever it is the intention of the legislature to adopt a well known principle of the common law, and apply it to a new class of cases ; or whenever it is the intention of the lawmakers to incorporate a former provision of a statute in the revision of the laws, a mere change of phraseology will not work a change in the construction of the provision in question. (2 Hill, 380. 21 Wend. 316, 319. . 2 Caines' Cas. in Er. 150. 4 John. 317, 359.) In several of these cases, especially that in the 21st of Wendell, the language used in the provision of the statute to be construed departs more widely from the old enactment than does the language of the 397th section from the well known chancery rule. Chief Justice Marshall says, in United States v. Fisher, (2 Cranch, 358,) “ Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed Avith irresistible clearness, to. induce a court of justice to suppose a design to effect such objects.” I have on several occasions given a similar construction to ■ this section; and now on a more deliberate examination my first impression is confirmed. I am happy to find that two of my brethren have come to the same conclusion, in two cases reported in 4 How ard’s Pr. Rep. 272, and 2 Code Reporter, 33. I know of no> more fundamental principle than that which forbids a man to be a witness in bis own cause; or' what is substantially the same thing, that each of two defendants charged with a joint offense shall be a witness for the other, and mutually swear each other clear. We are not however under the necessity of invoking so bold a principle; for we think that the interpretation we have given to the portion of the section under consideration, when its connection with the residue of the chapter is considered, and the rule as it formerly prevailed in chancery is remembered, is exceedingly natural and obvious.

The remaining point in this cause arises on the 70th folio— that the Hegemans had a lien on the boats for docking and repairing and taking care of them; and that no recovery could be had until such lien was paid. It is sufficient to say that this was one of the most strenuously litigated points on the trial, on which there was evidence on both sides. This evidence was submitted to the jury, and they found in favor of the plaintiff on the very point which the counsel wishes the court to assume as proved. That this was a disputed question will appear from a reference to folios 53, 57, and from folio 60 to 64.

A new trial is denied.  