
    Steptoe v. Read, for, &c.
    October Term, 1868. Richmond.
    i. Pleading—Joint Plea—Non=Assumpsit.—Two defendants in assumpsit file a joint plea of nonassumpsit. on which issue is taken. Afterwards, one of them asks leave to withdraw the plea as to himself, and to file a separate plea, that the defendants did not assume, &c. This being refused, he asks leave to file such plea in addition, which is also refused: as the issue on both pleas would be the same, both rulings were correct.
    3. Commission to Take Deposition-Failure of Clerk to Sign.—A commission to take a deposition being in all other respects correct, the omission, from inadvertence, of the clerk issuing it. to sign his name to it at the bottom, will not vitiate it.
    3. Certificate of Commissioner — Parties Not Named.— Though the commissioner taking a deposition does not give the names of the parties in his certificate, or state it was taken in pursuance of a commission, yet as the names are given in the caption to the certificate, and the commission is returned with the deposition and attached to it. the certificate is .sufficient.
    4. Same—Failure to State Notice—Objection in Appel= late Court,—The certificate of a commissioner who takes a deposition does not state that it was taken pursuant to notice; but though the deposition is . excepted to on the ground that there was no commission, and that the certificate does not state the parties to the suit in which it is taken, no objection is taken to it in the court below for want of notice. Although there is no notice, or evidence of notice, in the record, the objection for want of notice cannot be taken in the appellate court.
    5. Joint Action against Several Defendants—One Final Judgment.—At common law in a joint action against several parties, there can be but one final judgment, and it must be for or against all the defendants: and the rule is the same, whether the contract sued on is joint or joint and several, or whether the action is founded on several and distinct contracts, as the makers and endorsers of a negotiable note.
    6. Same—Same—Exceptions.—This general rule does not apply where the plea of one of the defendants admits the contract and sets up a discharge by matter subsequent, as bankruptcy; or where he sets up a personal disability at the time of the contract sued on, as infancy. And these exceptions apply equally, whether the contract is joint, or joint and several.
    7. Statute—To What It Applies.—The act Code, edi. 1860, ch. 177, § 19, applies only to cases in which some of the defendants are discharged upon the grounds of defence merely personal; and where the ground of defence goes to the foundation of the entire contract, the case remains as at common law.§
    
      8. Action on Joint or Joint and Several Contract—Competent Witnesses.—In an action upon a j oint or j oint' and several contract against two defendants, one of them is not a competent witness for the other’ to prove that the witness was the only party to the contract, and is alone hound by it.
    9. Witness—Competent for One Purpose Competent for All.—A witness is not competent to give evidence for one purpose only. If he is competent at all, he may he examined upon any matter upon the record.
    10. Contract Action against Two Defendants—Judgement Confessed by One.—In an action on a contract against two defendants, though one of them confesses a judgment, if the other proves a defence that goes to the foundation of the entire contract sued on, there must he final judgment in favor of both defendants.
    This was an action of assumpsit in the Circuit court of Bedford county, brought in January 1857, by Wm. *J Read, suing foi the benefit of H. D. Rlood, against Jesse L- Quarles and John R. Steptoe, as partners doing business under the name and style of Quarles & Steptoe, to recover the sum of five hundred and two dollars and five cents. The declaration contained only the common counts. At the April term of the court the defendants pleaded jointly nonassumpsit; on which plea issue was joined. The cause came on to be tried at the April term of the court for 1859, when there was a verdict and judgment for the plaintiff against both defendants, for the sum of five hundred dollars, with interest from the 23d of December 1854, till paid, and costs.
    Upon the trial of the cause the defendant Steptoe took three exceptions to decisions of the court. In the first it is stated—When this cause was called for trial the defendant Steptoe moved the court for leave to withdraw the joint plea of both defendants (Quarles making no objection thereto), and to file his separate plea; that the said defendants did not assume upon themselves in manner and form, &c., the counsel for Steptoe stating that the defence relied on was that the demand in controversy was the individual liability of Quarles, and not of the firm of Quarles & Steptoe; and that he wished to 'introduce Quarles as a witness to prove this defence; and for that reason be wished to plead separately for Steptoe. But the court refused to permit the joint plea to be withdrawn, and the above plea to be filed. The defendant then asked leave to file said plea in addition to that heretofore filed, which the court refused. And thereupon the defendant excepted to both the rulings of the court.
    The second exception states :
    The jury having been empanelled, the plaintiff, to sustain his action, offered in evidence the deposition of N. H. Campbell; to the reading of which the defendant *Steptoe objected, because it was taken without any commission ; first, because the paper purporting to be a commission was not signed by the clerk; -and second, because the commissioner who took it did not certify it was taken in pursuance of any commission. It appeared that a paper in the handwriting of R. D. Buford, the clerk of the court, was attached to the deposition by a ribbon, and they were received in this condition by the clerk of the court. This paper was addressed to any commissioner appointed by the governor of this State, or any justice or notary public of the State of New York, and was sent by the clerk to the counsel of the plaintiff or the witness. It was in the usual form of a commission, and referred to the suit correctly in which the deposition was to be taken. The conclusion of it was—Witness, Rowland D. Buford, clerk of our said court, at the courthouse, the 19th day of April 1857, in the 82d year of the Commonwealth. But the clerk, wholly through inadvertence, failed to write his name again at the foot of the commission.
    The commissioner who certified the taking of the deposition commences it as follows:
    State of New York, City of New York, Commissioner’s Office, April 23d, 1858.
    William J. Read v' Jesse L. Quarles and John R. Steptoe.
    State of Virginia, Bedford county.
    I, Joseph C. Lawrence, a commissioner for the State of Virginia, do certify that on, &c. at, &c. N. H. Campbell, a witness produced on behalf of William J. Read in a suit depending in the Circuit court of Bedford county, State of Virginia, came before me, and the said N. H. Campbell having been first duly sworn to testify to the truth, &c. deposes, &c. The deposition on its face states that the witness was cross-examined by counsel for Step-toe.
    *Rrom the third exception, it appears that the defendant Steptoe offered to introduce the other defendant Quarles, as a witness to prove that the demand sued for was the individual debt of said Quarles, and that there was no liability of Steptoe therefor. But the plaintiff objected ; and thereupon Quarles offered to withdraw the plea, so far as related to himself, theretofore pleaded;' but the court refused to permit him to do so. Leave was then asked to permit him to acknowledge the plaintiff’s action, to enable him to testify for Steptoe ; hut the court refused. Steptoe again offered Quarles as a witness, the counsel for the defendants stating that Quarles was making no defence, and that the proof they offered applied wholly to Steptoe. But the court again refused to permit Quarles to testify. To all of which rulings the defendant Steptoe excepted : and he afterwards obtained a supersedeas to the judgment from» a judge of .this court.
    Grattan, for the appellant.
    McRae, for the appellee.
    
      
      As to "Depositions,” see monographic note appended to Field v. Brown. 24 Gratt. 74.
    
    
      
      Joint Action against Several Defendants—One Final Judgment.—See principal case cited and approved as to the proposition laid down in this headnote in Gibson v. Beveridge, 90 Va. 697, 19 S. E. Rep. 785. See also, Moffett v. Bickle, 21 Gratt. 280, and Muse v. Farmers’ Bank, 27 Gratt 252; Taylor v. Beck, 3 Rand. 316.
    
    
      
      Statute—To What It Applies—in both Choen v. Guthrie, 15 W. Va. 107, and Bush v. Campbell, 26 Gratt. 427. there is a discussion -of the decision of the principal case as to the construction of this statute. In each of these cases, the court said that if the word “barred” in the act is to be confined to personal defences by one of the defendants then this act is a mere affirmation of the common law and the'statute is of no avail. They suggest that “non assumpsit” and “non est factum” are both pleas in bar, and that, if the defendant makes good his defence under either of these, the plaintiff is “barred of his action” as to him. Therefore, under the statute, it would seem that the plaintiff may have judgment against one defendant, though the other defendant be discharged on a defence that “goes to the foundation of the contract,” and noton a mere personal defence as at common law. though Bush v. Campbell, supra, seem to class “non est factum as a personal defence. See note to Bush v. Campbell, 26 Gratt. 403, where the authorities are collected; also, see Muse v. Farmers’ Bank of Va., 27 Gratt. 252, for further construction of this statute. See also, 4 Min. Inst. (3d Ed.) 968.
      But in Hoffman v. Bircher, 23 W. Va. 552, the court citing the principal case, said: “It seems to us that by the enactment of § 19, ch. 131, of the Code of W. Va. [precisely same as ch. 177. 8 19 of Va. Code of I860!, the Legislature only intended to relax the rigid rule of the common law, which we have been considering so far, as to permit a plaintiff who brings his joint action against all the joint contractors, to recover against one or more of them, although the action may be barred as to others, where the plaintiff’s declaration shows that he could have recovered against any of them separately. if he had sued them only. and where he proves at the trial the contract as alleged in his declaration.”
      §Code, ch. 177, § 19: “In an action founded on contracts, against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any one or others of the defendants, against whom he would have been entitled to recover if he had sued them only.”
    
    
      
      Action on Joint or Joint and Several Contract—Competency of Witnesses.—See Moffett v. Bickle, 21 Gratt. 287; Warwick v. Warwick, 31 Gratt. 77.
    
    
      
      Witness Competent for One Purpose Competent for All.—In Garter v. Hale, 32 Gratt. 119, the court said; “Whether at common law a witness is competent to give evidence in a cause for one purpose only, and if he is competent at all, whether he may not he examined upon any matter in .the record, see Steptoe v. Read, 19 Gratt. 1.” See also, Brock v. Brock, 92 Va. 175, 23 S. E. Rep. 224.
    
    
      
      Confessed Judgment.—In Harner v. Price, 17 W. Va. 554, the court said: “The case of Steptoe v. Read, 19 Gratt. 1, is cited to show, as I suppose, that the confessed judgment is anullity. The principal subject discussed in this case has been considered by this court in the case of Snyder v. Snyder, 9 W. Va. 415, and I do not think that either the former or latter case sustains the position that the j udgment is a nullity, and that it can be so considered in this case.”
    
   JOYísiES, J.

This is an action of assumpsit against Steptoe & Quarles as partners. At April term 1857, the defendants pleaded jointly that they did not assume upon themselves in manner and form, &c. Issue was joined upon this plea, and the case was tried upon that issue at April term 1859. When the case was called for trial at that term, Steptoe asked leave of the court to withdraw the plea previously entered (Quarles making no objection), and to file in lieu of it, a plea in his own behalf only ; assigning as the reason for the application, that the defence relied upon was that the debt which the action was brought to recover, was the individual debt of Quarles, and not the debt of the partnership ; and that Steptoe wished to introduce ^Quarles as a witness to establish this defence. But Quarles did not confess a judgment, or, as far as appears, offer to do so.

The plea then offered by Steptoe alleged that the “defendants did not assume upon themselves in manner andform, &c.”—which was precisely the same as the plea on which issue was already joined. The issue upon the plea tendered would have been the same as that upon the other ; namely, whether the defendants did or did not assume upon themselves in the manner and form, &c. The only difference between the pleas was, that in one the averment was made by both of the defendants, and in the other it was made by Steptoe only.

The court refused to allow the plea tendered by Steptoe to be substituted for the other, and afterwards refused to allow it to be pleaded as an additional plea. Inasmuch, however, as the issue tendered by the plea offered by Steptoe was precisely the same as that already joined upon the first plea, no injury was done to Steptoe by refusing his application. To have allowed it would only have incumbered the record with two issues in the same words. Fant v. Miller & al., 17 Gratt. 47.

The next error assigned is, that the court overruled the objection of Steptoe to the reading of Campbell’s deposition ; the ground of which was, that it was taken without the commission required by law. The commissioner who took the deposition did not certify that it was taken in pursuance of any commission. It appeared that a paper not subscribed by the clerk, but otherwise in the usual form of a commission, and wholly in the handwriting of the clerk, was attached to the deposition, being tied to it by a ribbon. This paper, though not subscribed, concluded thus : “Witness, Rowland D. Buford, clerk of our said court, at the courthouse, on the 19th day of April 1858, in the *82d year of the Commonwealth.” It was proved by the deputy clerk, that he, on the 27th April 1858, received the deposition with the notice and commission attached to it, as at present. It was proved by the clerk that this commission was issued and sent by him in pursuance of an affidavit in the cause, and that his failure to subscribe his name to it was from inadvertence.

In the usual recital at the commencement of the deposition, it is stated by the commissioner to be taken “on behalf of Wm. J. Read in a suit depending in the Circuit court of Bedford county, State of Virginia;” but the style of the suit is not there given. But the style of the suit is given in a caption which precedes this recital, in which caption are given the names in full of the plaintiff and defendants. It is obvious that this caption was intended to indicate the style of the suit in which the deposition was taken. The questions and answers likewise identify the suit in which the deposition was taken as one in which Read was plaintiff, and Quarles and S teptoe were defenda n ts.

The paper purporting to be a commission was sufficiently authenticated by this evidence, and it sufficiently appeared that the deposition was taken in pursuance of it. The statute does not require that a commission shall be subscribed by the clerk. Though a subscription by the clerk is usual and proper as a mode of authenticating the paper, its omission, through inadvertence, as in this case, when the paper bears on its face the usual attestation clause denoting its official character and finality, and is in the handwriting of the clerk, cannot be held to invalidate the commission. In Butts v. Blunt, 1 Rand. 255, and Unis & al. v. Charlton’s adm’r, 12 Gratt. 484, cited by the counsel for the plaintiff in error, there was, no proof that any commission existed.

’xTt was further objected in the argument here, that the judgment ought to be reversed, because it does not appear in the record that notice of the time and place of taking the deposition had been given ; and Collins v. Lowry & Co., 2 Wash. 75, was cited to sustain the objection. In that case, as pointed out by counsel in the argument of Jeter v. Taliaferro & al., 4 Munf. 80, the objection taken to the reading of the deposition was a general one, specifying no particular grounds, and the opinion of the court was, that it was incumbent on the party who offered the deposition to show that he was entitled to read it, by showing that it was regularly taken in all respects. See Tompkins & Co. v. Wiley, 6 Rand. 242 ; Barker v. Barker’s adm’r, 2 Gratt. 344. But in the present case, the reading of the deposition was objected to on the special ground, and no other, that it was taken without a commission. It would be a surprise upon the plaintiff to allow the objection of want of notice to be made for the first time in this court. Hill & als. v. Bowyer & ux., 18 Gratt. 364.

The remaining error assigned, and the most important, is the refusal of the court to allow Quarles to testify as a witness for Steptoe. The facts are these: After the jury had been sworn, Steptoe offered to introduce Quarles as a witness to prove that the demand sued for was the individual debt of Quarles, for which Steptoe was not liable. The plaintiff objected. Quarles thereupon offered to withdraw the plea, sc far as it related to himself, which the court refused to permit. Heave was then asked for Quarles to acknowledge the plaintiff’s action, to enable him to testify on behalf of Steptoe; which was likewise refused. Then Steptoe again offered Quarles as a witness; the’ counsel for the defendant stating that Quarles was making no defence, and that the evidence offered applied to Steptoe alone. The court again refused to allow Quarles to testify.

*The first question is, whether Quarles was a competent witness for Steptoe as the cause then stood; that is to say, upon the trial of a joint plea of nonassumpsit by both defendants.

It is a general rule of the common law, that in a joint action upon contract, there can be but one final judgment, which must be either for or against all the defendants. And the rule is the same whether the contract on which the action is founded is joint or joint and several, or whether the action is founded on several and distinct contracts, as in a joint action under the statute against the maker and endorser of a note. Taylor v. Beck, 3 Rand. 316. This general rule does not apply where the plea of one of the defendants admits the contract alleged, and sets up his discharge by matter subsequent; as bankruptcy. Nor does it apply where one of the defendants alleges that he is not bound to perform his contract by reason of personal disability at the time it was entered into ; as infancy. And these exceptions to the general rule apply equally, whether the contract sued upon is joint or joint and several. Cole v. Pennel & al., 2 Rand. 174; Woodward v. Newhall, 1 Pick. R. 500; Minor v. Mech. Bank of Alexandria, 1 Peters’ U. S. R. 46.

But an exception to the general rule is not allowed where the defence, though personal to one of the defendants, involves a denial of the making of the contract on which the action is founded. 3 Rand. 334, per Green, J. So that in an action against several defendants upon a joint or joint and several contract, if it appear from the proof that one of the defendants was not a party to the contract, though all the other defendants were parties to it, judgment will be rendered in favor of all the defendants. Rohr v. Davis & al., 9 Leigh 30 ; Baber v. Cook & al., 11 Leigh 606; Munford v. Overseers, &c., 2 Rand. 313.

Upon the principles of the common law, therefore, ^Quarles could not have been a witness for Steptoe, to prove that he was no party to the contract; for there could have been at common law but one final judgment in the action, and Quarles could have said nothing in favor of Steptoe, that would not have enured equally to his own benefit. If Steptoe defeated the action, on the ground that Quarles alone made the contract, judgment would go for Quarles, as well as for him.

But it is provided by the Code, ch. 177, § 19, that “in an action founded on contract' against two or more defendants, although the plaintiff may be barred as to one or more of them, yet he may have judgment against any other or others of the defendants against whom he would have been entitled to recover if he had sued them only.” It is contended that under this provision, Quarles was not incompetent as a witness for his co-defendant, as he would have been at common law.

The construction of this provision of the Code has not been settled by this court. It would seem, however, to be clear that it applies only to cases in which some of the defendants are discharged upon grounds of defence merely personal, and that where the ground of defence goes to the foundation of the entire contract, the case remains as at common law. The section, in terms, only applies to cases in which the plaintiff shows a cause of action against some of the defendants, upon which he would have been entitled to recover in case he had sued them only, and there could be no such recovery in any case where there is a defence going to the foundation of the entire contract. Such is the construction placed by the courts of other States upon statutes similar to ours. Blodget v. Morris, 14 N. York R. 482; Hubbell v. Woolf, 15 Indi. R. 204. And this construction is sustained by the decision of this court in Brown’s adm’r v. Johnson, 13 Gratt. 644, *where it was held that the statute which gives an action against the representative of a deceased joint obligor, in the same manner as if those bound jointly had been bound severally as well as jointly, does not affect the principle of the common law, that the defeat of the remedy against one joint obligor, upon a ground not personal to himself, defeats it as to all the obligors.

Under the plea of non-assumpsit it was competent to the defendants to defeat the action upon grounds going to the foundation of the entire contract. Thus, it might be shown that no such contract was made by any of the defendants ; that it was void for illegality or usury ; that there was a want or a failure of consideration ; or. that the contract had been discharged by payment or release. 5 Rob. Prac-t. 255. Quarles would have been incompetent to prove any such defence for Steptoe, because if the defence was sustained, ■the judgment would have been for both defendants. It is no answer to say that Quarles was not offered as a witness to prove any such defence, but only to prove that Steptoe was not a party to the contract, which was a defence personal to Steptoe. In Hawkesworth v. Showler and Boyce, 12 Mees. & Welsb. 45, the action was trespass for wrongfully taking the plaintiff’s goods under a distress for rent. The case having been clearly proved against the defendant Boyce, who was the broker employed to make the distress, the other defendant, Showier, for the purpose of showing that he had not authorized the taking of the goods by Boyce, offered the wife of Boyce as a witness. Eord Abinger, C. B., rejected the witness; and the Court of Exchequer sustained his judgment. Bord Abinger said : “I am clearly of opinion that this motion ought not to be granted. It is opposed to every principle of law. It is the first attempt which, after a very long experience, I ever remember to have heard *made, to endeavor to make a party to the record and a party to the issue, a witness in the cause. Nothing is clearer than this—that a person cannot be a witness who is a party to the record, and affected by the determination of the issue, and that the wife of such a person is equally incapable of being a witness. I take both propositions to be identical.” * i:’ * “But it is said she is only required to be examined as a witness on a particular point, which would not prejudice or affect her husband. But I deny the proposition that a witness is competent to give evidence for one purpose only. If a witness is competent at all, he may be examined upon every matter upon the record. I remember at one time it was thought that an objection could be made to a witness with reference to the particular kind of question to be put to him ; but that notion is long since exploded ; and now a witness is considered competent or incompetent upon the general ground of exclusion of his interest one way or other. When once a witness is sworn, he is not sworn to answer particular questions, but to give evidence on all the matters in dispute between the parties.” The other Barons expressed themselves to the same effect.

Gerrish v. Cummings, 4 Cush. R. 391, was an action of trover against two defendants for the conversion of a horse hired to them. One of the defendants suffered judgment by default, and upon the trial he was called by the other defendant as a witness for him. He was rejected, and the Supreme court held the rejection to be right, because the jury had to assess damages against the defaulted defendant. It was then proposed to examine the defaulted defendant as to the hiring only, to prove that he was himself the only party to the contract, without any reference to the question of damages. This was refused, and the Supreme court sustained the decision. That court said that the witness, if admissible at all, would be liable to be exam-ined *upon all questions pertinent to the issue; that his competency depended on his interest in the event of the cause, and not on the particular question to which the party calling him might choose to examine him. See also Chase v. Lovering, 7 Foster R. 295 ; Fulton Bank v. Stafford, 2 Wend. R. 483 ; Merrill v. Inhab. of Berkshire, 11 Pick. R. 269 ; Seip v. Storch, 52 Penn. R. 210.

If, therefore, Quarles had been put upon the stand as a witness, there was nothing to prevent his giving evidence to establish a defence going to the foundation of the entire contract, though called only for the special purpose of proving that Steptoe was no party to the contract. The offer of Quarles to withdraw his plea, and to acknowledge the plaintiff’s action, did not alter the case. For upon proof by Steptoe of any ground of defence going to the foundation of the entire contract, final judgment must have been given for both defendants, notwithstanding the confession of judgment by Quarles. Quarles would, therefore, have been equally incompetent if he had confessed a judgment. Taylor v. Beck, 3 Rand. 316.

The result is, that the court did not err in excluding Quarles as a witness, or in refusing to allow him to confess a judgment as proposed, and that the judgment should be affirmed.

The other judges concurred in the opinion of JOYNES, J.

Judgment affirmed.  