Rosenbaum v. Hernberg , 17 Cal. 602 ( 1861 )

Field, C. J. delivered the opinion of the Court

Cope; J. concurring.

The only question presented for determination by the record in this case, is whether Hernberg, one of the defendants, was a competent witness for the plaintiffs. The complaint alleges a conspiracy between the defendants to defraud the plaintiffs of certain goods, and that it was successfully carried out by their obtaining and disposing of the property, and asks damages against them all. Hernberg made a voluntary appearance, but interposed no defense. The other defendants answered and joined issue.

We have no doubt of the competency of Hernberg. He was clearly competent under our statute; and we are inclined to the the opinion that he was so at common law, especially as he made no objection to testifying. Under the statute the plaintiff may call any one of the adverse parties to the action where there are several, and they are sued as joint tort-feasors. He is not bound to call all if he call one. (See secs. 392 and 393 of the Civil Prac. Act, as amended in 1854; and secs. 417 and 418; Haddrick v. Heslop, 12 Adol. & Ellis, N. S. 268; Brown v. Marsh, 8 Vt. 310; and Paine v. Tilden, 20 Vt. 554.)

Judgment affirmed.