
    No. 11.
    A. B. Ragan and A. Key, plaintiffs in error, vs. Josephus Echols, defendant. The same vs. the same.
    No. 12.
    [1.] A co-defendant to a Bill in Equity who is made so for mere form’s sake, and against whom no decree is prayed, may b e examined as a witness, on the trial of the cause, if necesssry.
    [2.] Tf a complainant in a bill choose to examine a co-defendant as a witness, he cannot have a decree against him; and if, from the nature of the case, that defendant would be primarily liable to the complainant, and the other defendant liable only in a secondary degree, the complainant cannot obtain a decree against either.
    In Equity. Motion for a new trial, in Muscogee Superior Court. Before Judge Alexander.
    Both of the above causes, being parts of the same litigation, were, by consent, consolidated and considered together. The facts are as follows :
    At the April term of the Superior Court of Muscogee county, Abraham Key brought his action at Law, against Echols as the maker, and Ragan as the indorser of a promissory note for $516 12, dated March 25th, 1839, due 30th April, 1839, and payable to Ragan’s order. At the April term, 1841, the cause was tried,' and Key had a verdict. The defendants then appealed to a special jury.
    Before the trial on the appeal, Echols, the present defendant in error, filed his bill, charging that the n.pte had been obtained from him through the fraud of Ragan, and that Key purchased the note after it was due. The bill prayed an injunction, and a discovery and relief. The defendants answered the bill, replications were filed, the cause tried, and the defendants had a decree in their favor. Echols then appealed to another jury, and at the second trial, which was had at May term, 1848 there having been a settlement between Ragan and Echols, Echols moved the Court, after orally waiving a decree vs. Kagan, that he be permitted to examine Ragan as a witness in the came in his behalf. This motion was granted — Ragan was examined, and Echols had a verdict. Thereupon, Key filed his bill of exceptions, and brings his cause to this Court. The facts in the second case are these: The verdict above referred to, was obtained, on the 23d May, 1848. On the 30th, the plaintiff in error, Key, moved a rule»*'-* si, for anew trial, as follows :
    “ And now comes the said Abraham Key, and asks the Court for a rehearing and new trial in the said cause, on the ground that the verdict and decree are contrary to law, and the rules and principles of Equity. And after hearing said application, it is ordered that the complainant show cause, as soon as counsel can be heard, why the same should not be granted.” Appended to the rule, was the brief of the evidence and proceedings in the cause, as above set forth.
    During the term the motion for a new trial was argued in the Court below, and the motion denied; whereupon Key excepted, and brought his case by writ of error to this Court.
    W. Dougherty, for plaintiff in error,
    Insisted that Ragan was a necessary party to said bill, being the only defendant against whom any fraud or improper conduct was charged, and interested in the suit and the issue, and to be affected by the decree in the case, and ought not to have been examined as a witness. Dan’l Ch. Prac. vol. 2, top page, 267, 268, 269, 271, 272. Nightingale vs. Dodd, Amb. 338. Hill vs. Adams, 2 Ath. 39. Murray vs. Shadwell, 2 V. & B. 401. 1 Danl. Ch. Pr. top page, 200. Gresley Eq. Ev. 243. As to Ragan being a necessary party, see Field and others vs. Holland and others, 5 Cranch, 8. Condensed Rep. Supreme Court U. S. vol. 2, 290. Story Eq. Pleading, 149 4 vol. Hening & Munford, Ross vs. Carter, 488.
    That the complainant could not examine said Ragan as a witness, without withdrawing the replication to his answer, and striking his name from said bill, nor as long as he remained a party to said bill, and there was a possibility of a decree against him. Danl. Ch. Prac. 2 vol. 267, 268, 269. Carter vs. Hawley, Blunt’s Amb. 584. Weymouth vs. Bower, 1 Ves. Jun. 417. Hill vs. Adams, 2 Atkins, 39. Meadbury vs. Eisdole, Blunt's Amb. appendix, 817, n. 1, and 9 Mod. 438. Nighingale vs. Dodd, Amb. 584. Winter vs. Kent, 2 Dick. 595. Ward vs. Ward, 4 Beav. 223, also 155. Baker vs. Thunall, 6 Beav. 333.
    That on complainants declining to take any decree against Ragan, said hill should have been dismissed against Key, against whom there were no charges, &c. and secondarily liable. Danl. Ch. Prac. 2 vol. 268, 269. Thompson vs. Harrison, 1 Cox, 346. Bernett vs. Ld. Donegst, 3 Dow. P.C. 133. Nightingale vs. Dodd, Amb. 583. Gould vs. O’Keefe, 1 Beattie, 356, 353. 1 Young, 602. Field and others, vs. Holland and others, 6 Cranch, 8. Vol. 2, Condensed Rep. Supreme Court, U. S. 290. Gresly Eq. Ev. 244. Lewis vs. Owen, 1 Iredell Eq. Rp. 290. Brodly vs. Root, 5 Paige, 633. Trippe & Slade, et al. vs. Lowe’s adm’r, 2 Kelly, 304.
    M. J. Wellborn, and Johnson & Williams for defendant.
    There is no -error in the verdict, and the decree follows the verdict.
    A new trial will not be awarded under the circumstances. 9 U. S. Digest, 416, 1 Peters Dig. 333. 1 Kelly, 580, 618. 2 do. 15, 183. 3 do. 322.
    
    It was competent to examine Ragan under the order made. Daniel’s Chancery Practice, 265, et seq. Greenleaf’s Ev. 428. Prince D. 447, 570.
   By the Court.

Warner, J.

delivering the opinion.

This hill was filed in the Court below, against Ragan and Key, by the-complainant, to-enjoin the defendants from collecting a promissory note, given by the complainant to Ragan, and by him, indorsed to Key. The complainant charges in his hill, that the note was fraudulently procured from him by Ragan, and that Key purchased it after due. The record discloses, that Key had no participation in the fraud whatever, in procuring the note fronijthe -complainant, nor any actual knowledge of it when he purchased the paper, and is only chargeable with constructive ncftice, in consequence of having acquired his title to the paper from Ragan, subsequent to its maturity.

The whole equity of the complainant’s bill, is founded on the alleged fraud of Ragan, in procuring the note from the complainant.

On the trial, the complainant proposed to examine Ragan as a witness, (having first obtained an order for that purpose,) against Key. The counsel for Key objected to his being examined as a witness against him, as Ragan was the principal defendant in the cause. The Court overruled the objection, andThe witness was examined, whereupon the counsel for the defendant Key excepted, and now assigns the same for error here. The record shows that the complainant orally waived any decree against Ragan, but did not move to strike his name out of the record, for the rea.son, as we suppose, if he had done so, his whole case would have went out. According to the case, as made by the complainant’s bill, when he orally waived any decree against Ragan, he virtually waived his case out of Court — for Key can only be affected, by first establishing the alleged fraud on the part of Ragan. When Ragan’s fraud shall be established, then Key’s title to the note is affected, because he derived it from Ragan, after it became due. Without the allegation offraud, on thepart of Ragan, the Court would have had no jurisdiction of the cause, and to our minds it would present rather a novel spectacle, in a Court of Equity, for the complainant to orally waive a decree against the only party to his bill, whose fraudulent conduct alone, gave to the Court jurisdiction of his cause. If the complainant had moved the Court to strike out of the bill, the name of Ragan, and the charges made against him, which alone entitles him to a decree, the whole case would had been out of Court; but to avoid this consequence, the complainant is permitted to make an oral waiver of a decree, against the principal defendant, who perpetrated the fraud, and whose fraudulent conduct alone, entitled him to a decree against the other party, who derived title to the paper, through him. Where defendants have been made parties to a bill, for mere form’s sake, and against whom no decree is prayed in the hill, they may be examined as witnesses, if necessary. Gresley’s Eq. Evidence, 243—4. 2 Madd. Ch. Practice, 415.

The true rule, as applicable to this case, is stated by Mr. Maddock. “ If a plaintiff chooses to examine a defendant as a witness, he cannot have a decree against him, and if from the nature of the case, that defendant would be primarily liable to the plaintiff, and another defendant only in a secondary degree, the plaintiff loses his remedy altogether.” 2 Mad. Ch. Practice, 417. Thompson vs. Harrison, 1 Cox’s cases, 344. In Lewis vs. Owen, 1 Iredell’s Eq. Rep. 290, the same rule is recognized. In that case it washeld, if the defendant examined as a witness be the cmo primarily liable to the plaintiff and the other defendant only secondarily liable, the plaintiff, necessarily gives up his claim against both, by the examination of the former. The same rule is supported by Ch. Walworth, in Bradley vs. Root, 5 Paige’s Rep. 636. Ragan; as we have seen, is the party primarily liable for the fraud, the actual perpetrator of it. Key, the other defendant, had no actual participation in the frand of Ragan, in procuring the note, and as the record shows, had no actual knowledge of it, at the time he received it from Ragan; consequently, his liability to be perpetually enjoined from collecting it is secondary, depending on the establishment of the fraud of Ragan, through whom he derived his title to the note, after its maturity. By examining Ragan as a witness, who was the actual perpetrator of the fraud, and primarily liable therefor, the complainant precluded himself from having a decree against him ; and it follows, as a necessary consequence, under the rule laid down, that he could not have a decree against Key, the other defendant, who is only affected by constructive notice of the fraud, by purchasing the note after it was due.

Let the judgment of the Court below be reversed, and a new trial granted.  