
    A. J. McGown v. W. H. Randolph.
    The defendants executed to the plaintiff their written instrument, as fol lows : “ We this day release W. H. Randolph from the Advocate and Presbyterian office in toto, without any charges ever after this to be brought against him. The office is now indebted to him two hundred and eighty dollars and forty-two cents, to be paid in arrangements that he can make or collect.” The court below instructed the jury that, besides releasing the plaintiff from liability, this instrument was an acknowledgment of indebtedness by the defendants to the plaintiff of the sum specified, and an agreement that the plaintiff should be paid out of the assets of the office; and that it implied an obligation on the defendants to put the assets in the plaintiff’s hands so that he might arrange or collect them; and that on default in doing so upon the plaintiff’s demand, the defendants became liable for the amount specified. Held, that the instruction was correct.
    It is competent under the satute (O. & W. Dig., art., 475, 479,) for the plaintiff to propound interrogatories to one only of several defendants. The answers of one of several defendants, so obtained, are admissible in evidence against all the defendants; and are entitled to the same w eight, when unimpeached, as the testimony of any other witness.
    Where the answers of one of the defendants are required by the plaintiff, the other defendants have the right to propound cross-interrogatories.
    Error from Walker. Tried below before the Hon. P. W. Gray.
    Randolph, the appellee, instituted this suit against A. J. McGown and D. D. Davies upon their written instrument as follows:
    “We this day release W. H. Randolph from the Advocate and Presbyterian office in toto, without any charges ever after this to be brought against him. The office is now indebted to him two hundred and eighty dollars 42-100, to be paid in arrangements that he can make or collect.
    D. D. Davies.
    June 3, 1856. A. J. McGown.”
    The plaintiff set forth in his petition that he and defendant, McGown, had been partners in the publication of a newspaper styled the “ Union Advocate ” in the “ Presbyterian ” office, then belonging to McGown; that plaintiff sold all his right, title and interest in the Advocate to the defendants as co-partners, Who oñ settlement were indebted to him in the sum of $>280 42, for which they executed their written instrument, above set out; and that the defendants, though often requested, had refused to allow the plaintiff any claims, or to make any arrangements whereby he could collect his said debt, and have refused to pay the samé oi* any part thereof. Wherefore, píáys for judgment for the said sum and interest.
    Both defendants were served with process, but Davies made nó appearance or defence.
    The defendant, MoGoWn, answered with a general denial, and, also, answered specially, under oath, denying that he ever was á partner of the plaintiff, alleging that he had simply allowed the plaintiff the use of his printing office, types, &c., for the publication of the Advocate at the plaintiff's own expense; that if plaintiff made any profits in the publication of the Advocate, he was to pay half of them to this defendant; that if plaintiff made no profits, defendant was to receive no pay. Denies that he ever purchased any interest in the Advocate from the plaintiff, or that hé and his co-defendant, Davies, were partners, either in the purchase of the Advocate from the plaintiff, oí in its publication. Alleges that on the settlement referred to by the plaintiff, the lattei claimed to be loser of about two hundred and eighty dollars in the publication of the Advocate, and, in consequence, this defendant released him, as he had agreed to do, from all charges for the use of the office, type, ko.; ahd averred that the written instrument sued on was only intended by plaintiff and this defendant as evidence that defendant did hot and would not charge the' plaintiff anything for the use of the office, &d., and was intended for no other purpose, so far as this defendant Was concerned. Further alleges that said instrument was not intended to evidence any indebtedness to plaintiff from this defendant, but was intended td operate and apply only between plaintiff and Davies, on an arrangement or contract between them in relation to the said Union Advocate paper. That if said written instrument be construed to affect this defendant further than as a release, the samé, except as a release, is wholly without consideration, and void as to this defendant.
    The plaintiff amended his petition by striking out the allegation that the defendants were partners.
    At the Spring Term, 1857, there was a mistrial, in consequence of disagreement of the jury. Thereupon the plaintiff propounded interrogatories to the defendant, Davies, for the purpose of establishing by his answers the allegations of the' petition. Notice, with a copy of the interrogatories, was served on the attorney of defendant, McGoWn, and the plaintiff sued out a Commission to the Chief justice, district clerk, or any notary public of Leon cotinty, to take the answers of Davies. The commission wad executed and returned with the answers of Davies, certified in the usual form.
    The defendant, McGown, filed no cross-interrogatories to Davies, but on the trial at the ensuing term of the court, moved to strike Davies’ answers to the plaintiff’s interrogatories from the file, assigning for cause, 1st, that they were not taken in pursuance of law, because DaVies was not a competent witness against Ms co-defendant; 3d, because the testimony of one defendant is not admissible against another in this manner; and 4th, because his co-defendant’s testimony is not admissible against this defendant.
    The court overruled the motion, and permitted the answers to go to the jul*y as evidence for the plaintiff.
    • The court instructed the jury to the effect Set out in the syllabus. There was verdict and judgment in favor of the plaintiff for $292 82. McGown moved for a new trial and in arrest of judgment; both of which motions wérO overruled, and McGown appealed. ,
    
      Leigh éf Bdlcér, for plaintiff in erro?,
    in the rulings ©£ the eourt below, there is ePror; 1st, because the aHsWerS of Davies Were not taken in accordance with laW. And here the question arises, by What authority, or under what kw, cOuld the plaintiff Sue out a Commission authorizing the officer to Whom it was directed to Compel the defendant, Davies, to come before him and answer the interrogatories propounded ? We answer, that there is no law to authorize such a proceeding. The means by which either party to a civil suit may obtain the testimony of the other are clearly set forth in article 735 of Hartley’s Digest, and under that statute no party could be compelled to testify either for or against himself. And there is but one penalty affixed to the neglect or failure of, the' party to answer, atid that is that the facts about which he has béen interrogated shall be taken for confessed, But in this case the plaintiff was not content with this penalty. The defendant, Davies, Was forced upon the stand, and made to testify, and his testimotiy was held to be legal and Competent, both against hiniself and against MtíDown. But, again: Is it contemplated by this statute that the answers of one' should be' evidence against all the defendants ? We think not; for if such be the case, the neglect or failure of the one interrogated to answer,- would be construed into a Confession of the fact by all of the’ defendants.
    Di interpreting a staitite,.we are required to consider all of its-parts in order to enable us to come to a proper conclusion as to the intent of the language and the?-meaning of the law; and surely it will not be contended that the neglect of one' defendant to answer Would be‘ a confession of all the defendants. But such Would be the case,- if the answer erf One were binding evidence tipoit all. But the truth is-, the statute never contemplated the filing of interrogatories to one' of the plaintiffs or one of the* defendants. Such is not the meaning of intent, and to prove this5 let uS refer to the article 785 itself. What Says' it ? That either party to a civil suit, &c., (not one of either party',) may propounds Written interrogatories to the' other, (not to dhe' of the other party.-) Then it is clear, at least to our minds, that the' plaintiff in the Court beloW should have propounded his' interrogatories to both of the defendants, ánd that he1 had no right uiider the statute to pfopouñd to one. At any rate', the ahswdrS to interrogatories thus propounded ealffiot be evidence against the other defendant.
    2. The defetidant, Davies, is not a Competent wittiest against McGówh. This position We think tenable" upon the ground of interest, Already had Davies permitted one court to pass',- after M ■had been duly cited, before interrogatories were propounded t'b him. It is true, that he had not been condemned to pay the Amount of -the instrument sued, on; but he had failed to answer, Und was subject to judgment by default, and he might well haV6 argued, that whatever amount there may be, it would be well foi‘ him to tlix-ide the responsibility.
    
      A. P. Wiley and A. Middleton, for the defendant in errór.
   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.  