
    LEE and others vs. MURRAY.
    1. A joint owner of a steamboat is a competent witness against tlie other owners, to prove the joint ownership and tortious ac's committed by them.
    APPEAL FROM &T. LOUIS COURT OF COMMON PLEAS.
    STATEMENT OP THE CASE.
    This is an action on the case brought in the St. Louis court of common pleas to the September term, 1846, in which the appellee plaintiff below obtained a verdict against the appellants defendants below for §541 92.
    The appellants moved to set aside tho verdict, assigning for reasons the admission of incompetent evidence, and the other ordinary reasons for a new trial. But the court below overruled this motion and rendered judgment for the appellee, and the appellants, defendants below, appealed,to this court.
    The first count in the plaintiffs declaration states in substance that the appellants being the Owners with one John P. Moore, of the steamboat Brunswick, authorized said Moore to sell the bar of the boat to appellee, for the sum of $500 in cash, and §300 to be paid upon request. That appellee thereupon took possession, and furnished and used tho said bar. And that on the 20th of May, 1846, the appellants with intent to injure appellee, wrongfuily removed him from and took tho possession of said bar themselves.
    The second count states that the appellee being lawfully possessed of the bar of said steamboat and entitled to keep therein, and to sell such articles as arc usually kept and sold by barkeepers on steamboats, and from the sale of which lie derived large profits, tho appellants, on the 20th of May, 1846, did wrongfully enter into said bar and removed the property of appellee ^therefrom, and hindered him from having possession and enjoyment thereof.
    The third count is in substance the same as the second.
    The fourth count sets out that tho appellants together with one John P. Moore, on the 1st day of August, 1844, being owners of tho steamboat Brunswick, were desirous to sell the bar of said boat, and that appellants on 1st August, 1844, offered the same to the appellee and deceitfully represented to him that said steamer would be employed as a packet boat between the city of St. Louis and the town of Brunswick, on the Missouri river, and the appellee confiding in said representation, that said steamer would bo so employed, did purchase the bar thereof at and for the price of $800. But that said appellants contriving to injure appellee, immediately after and ever since, employed said boat in running between St. Louis and New Orleans, in La.
    It is also averred that the profits accruing to the barkeepers of such boats as are employed in running between St. Louis and Brunswick are much greater than df those plying between St. Louis and New Orleans, and that in consequence the appellee suffered damage.
    The issue was upon the plea of not guilty. Ou the trial the appellee, Without having given a release to the witness, offered the deposition of John Pi Moore in evidence, to prove the sale of the bar of the steamer Brunswick to himself, it appearing upon the face of the deposition that before and at the time of such ¡sale, said Moore Was a joint bwner With appellants of said steamboat, but that he had sold out his interest before the putting the appellee and his goods off th® boat.
    To the admission of this deposition appellants objected, but the court below overruled the objection and allowed the deposition to be read in evidence, and the appellants excepted;
    Afterwards appellee nroduced one J. W. Allen as a witness, who stated on his voire dire that he had no Interest in the result of this cause, and then he was swdrn to testify as a witness on the part of the appellee. Alter he had proceeded awhile in his testimony, he stated that on the 9th of May, 1848, he became a jdint owner with the appellants and John P. Moore, of the steamer Brunswick, and that he continued to be such joint owner, until the month of November, 1846, when he sold his interest to Jas. W. Finney.
    At this point the counsel of appellants objected to said witness’ being allowed to testify further in the cause, and also moved the court to instruct the jury that the testimony of said witness already given was illegal and ought to bo disregarded by them, which objection and motion the court below overruled, and the appellants excepted and appealed.
    Plaintiff below offered evidence tending to prove the disturbance of Murray in the enjoyment of the bar by defendants below.
    Polk for appellants,
    1st. The main question in this case arises upou the allowing by the court below of tilo deposition of JohnP. Moore to be read in evidence to the jury—the question upon the admissibility of the witness Allen, being exactly the same.
    The fourth count of the declaration, though in form a count in case, is in truth based upon a contract between the parties for the sale of the bar of the steamer Brunswick. Just as an action on the ease may be, and often is, brought against a common carrier, when an action of assumpsit might also have been sustained, or an action on the case for deceit in case of false warianty, when an action might have been brought upon the contract.
    My first proposition is, that when a party may upon a given state of facts maintain an action of either case or assumpsit, the rules of evidence are the same in either form of action.
    He cannot change the rules of evidence by changing the form of the action. Upon the same state of facts between the same parties , the rules of evidence remain always the same, whatever may be the form of the action. The ¿cope and amount of evidence may be varied by changing the form of the action, but not the rules governing the introduction of the evidence and its admissibility.
    So too, a change of the form df the action may change the name of the defence. (1 Chit. PI. forms of action,) but never the rules of evidente.
    2d. Now if this action had been assumpsit for the breach of the contract made When the bar was sold, that the boat should run between St. Louis anl Brunswick, it can hardly be denied that the deposition of Moore would have been incompetent and illegal,
    The plaintiff below to make out his case, would have been compelled to prove the contract and its breach, and also that it was made with the defendants. Tho witness he introduced for the purpose of proving lhatthe defendants wore owners of the Brunswick, and as such, had entered into the contract for the sale of the bar, was himself an owner of the boat jointly with the defendauts. Now the witness Moore, being a joint owner of the boat, could not be competent to prove that the defendants were joint owners, in order thereby to subject them to a recovery. Hood vs. Dixon 7 Mo. R. 414. Purviance vs. Dryden 3 Serg. &R- 89.
    The above two cases are where the witness decided to be incompetent, was a co-partner with the defendant.
    Tho rule is the same where the witness is a joint owner with the defendant. And in the case of Marguand vs. Webb. 36 John R. 89, the witness and defendant were joint owners of a ship; in the case at bar the witness aud the defendants were joint owners of a steamboat.
    3d. If the deposition of Moore was incompetent as to the 4th count, it ought to have been excluded altogether. It could not goto the jury under any count. If competent as to the other counts, the plaintiff might have availed himself of it by the withdrawing the 4th count, but this was tho only mode in which it could have been done. For if it was incompetent for any purpose, or to any extent or upon any part of the declaration, it ought not to have been read to the jury. J ust as when incompetent evidence has been admitted to go to the jury, there has been error, for which the judgment will be reversed, even though there may have been other and competent evidence to the same point sufficient to have justified the verdict. Seethe above case of Marguand vs. Webb 16 John R. 89.
    Gantt for appellee insists.
    1st. That the injury complained of in the three first counts was to the possession of Murray, and is complained of as a tortious act, and therefore it has no connexion with the title detived from defendants and Moore, at the original sale of the bar.
    2d. That there can be no contribution as between wrong doers, and therefore even if King & Fisher alone had been sued though charged to have committed tho tort jointly with Lee, the plaintiff below might have used Lee as a witness. 3 Carr and Payne 172; 4 Carr and Payne 7; 1 Term Rep. 301; 14 Johns 318; 4 T. R. 17; 3 T. R. 27, 36; 1 Phil. Ev. 47 to 55 inclusive. Much more then was Moore a competent witness.
    3d. Moore is not charged by the declaration to have had any participation in the tort complained of by Murray. He was not even a jaint owner of the boat at the time of the commission of the tort charged in the three first counts. He was therefore in no way liable for them or their consequences.
    4th. No breach of the original contiact is complained of. It is the foundation of plaintiffs action, that a valid contract of sale was executed to him. The breach assigned is the unlawful disturbance of his rights by defendants, not by defendants and Moore jointly.
    5th. The bill of exceptions does not profess to set out the whole of the testimony, and in fact does not do so. Even if the doctrine of contribution had application, it would only have the effect of making those liable to contribution incompetent to prove the joint liability of third persons. 7 Mo. R. Dixon,
    Now it is perfectly consistent with the record that this was proved aliunde or admitted by the parties. The joint ownership of tho boat by Moore and defendants may have been either established by other testimony, or admitted by the parties.
    6th. The fourth count does not charge that Moore had any thing to do with the fraudulent representation complained of by Murray, and which he charges against Lee, King & Fisher, neither docs it allege any participation by him with the breach of the promise and assurance charged to have been deceitfully made by Lee, King & Fisher. Here also the inj ury complained of is a tort, in respect cf which oven tho joint wrong doors are not liable among each other to contribution. At the period of the making of the fraudulent representation, Allen was not an owner, and could wot have been a party to the deception. It is therefore submitted that neither Alien nor Moore had any interest in the result of the suit, and were therefore competent witnesses.
   Napton, judge,

delivered the opinion of the court.

Under the first three counts, we are well satisfied that Moore was a competent witness. It is not charged in either of these counts that Moore was a partner when the tortious expulsions was committed, and whether he was a partner or not, he could not he held responsible for the tortious acts of his co-partners, in which he had no participation.

The fourth count presents more difficulty. In that a deceitful misrepresentation is charged upon the defendants, resulting in a pecuniary loss to the plaintiff. Moore, the witness, was a partner with the defendants when this misrepresentation was made. Moore proved the misrepresentation (if any were proved at all) and also proved the partnership. Now if the witness admitted the representation or deceit, and proved the partnership, he might be objectionable on the principle acted on by this court in Dixon vs. Hood, 7 Mo. R. Admitting himself to be liable, he would be testifying in such a way as to make others share his responsibility.

The distinction has not been sufficiently noted, in my humble opinion, in many of the casess on this subject, between the competency of a witness against whom a judgment by default has been rendered, and one who is not a party to the suit. In the former, the witness’ liability is fixed, and when his testimony is calculated to divide that responsibility, his interest in favor of the plaintiff is manifest. But where the witness is not a party, and he neither admits nor denies the liability of the defendants, but is simply called on to prove their partnership with himself, he is certainly testifying against his interest. He is facilitating a recovery for the plaintiff, in which event, he admits himself liable over for contribution. His interest is directly against the party calling him.

In this case we will observe that the deposition of the witness Moore, was objected to generally as incompetent. There are portions of his testimony applying solely to the three first counts, which were clearly admissible, and if other portions were objectionable under the fourth count, they should have been pointed out, and a separate exception taken.

It will strike any one who reads the deposition of Moore, which was a long one and contained nearly all the evidence in the cage, which was to the point disputed, that scarcely any plausible pase of deceitful misrepresentation, as charged in the fourth count, was made out. But both parties went to the jury without instructions, preferring, no doubt, to take their chances with that tribunal for a correct decision of the law and the facts. This they have a right to do : but the losing party in such cases has no cause of complaint in this court. We have no further cqntrol over the matter,

We think the witness, Moore, was competent, although there are portions of his testimony about which we have doubts ; but as the objection was a general one, and cannot be sustained as such, the judgment Will be affirmed,

Scott, judge,

The case of Dixon vs. Hood is not applicable. In crime and fraud there is nq partnership, and consequently there can he no contribution. The fourth count in tire declaration is for a fraud, and a recovery under it would lay no foundation for a claim to contribution among those who were parties to it.

When, in the trial of a cause, evidence is offered which is admissible for one purpose, but incompetent for another, it is the duty of the court to receive it, and the party against whom it is offered may move the court to direct the jury as to the purposes for which it is incompetent. Palmer vs. Hunter 8 Mo. Rep, 517,  