This case as presented to the Court, involves important points, none of which it is deemed necessary now to settle, except to determine whether Collier’s mortgage is sufficiently established by those rules which govern in a Court of equity, so as to bring it fairly before the Court. The bill alleges that Collier’s mortgage has been so defaced and obliterated by accident, that it could not be‘exhibited. Chapman, in his answer, says he did execute the mortgage to Collier, he thinks for four negroes, being a part of those in M‘Kinley’s possession, the names of which he does not recollect. Birney answers, that he was a witness, or was at least present, when the mortgage was made by Chapman to Collier. If the answers of Chapman and Birney could be admitted as evidence against M‘Kinley, then the existence of the mortgage alleged in the bill, is established.

The general rule is, that the answer of a defendant cannot be read in evidence against his co-defendant. To this rule, it seems there are some exceptions. The inquiry therefore is, whether the case under consideration, comes within any of the exceptions.

In the case of Clark’s Exr’s. v. Van Riemsdyke, b Judge Marshall lays down the proposition, that the answers of three copartners and joint-owners of a ship, though insolvent and discharged under the insolvent laws of a State, cannot be read in evidence, to charge the other *167joint-owner on a bill drawn by authority of the owners. In that case three of the defendants, who had taken the benefit of the insolvent laws, and who were copartners in merchandise, and joint-owners of the vessel with the other defendant, admitted in their answers that the supercargo of the vessel had authority to draw the bill in question. The Court excluded the answers as inadmissible to prove that the supercargo, as a partner, had authority to draw the bill. The Court also excluded their depositions, on the ground of their being interested witnesses, notwithstanding their discharge under the insolvent law. In the case of Starling v. Blair, a Wilkinson being indebted to MTlvain, for the purpose of securing payment, gave a mortgage on certain lots in the town of Frankfort. The money not being paid at the time agreed on, MTlvain filed his bill against Wilkinson, and obtained a decree of foreclosure and order for sale, under which Starling purchased one of the lots. Blair then filed his bill against Wilkinson, MTlvain and Starling, alleging that prior to MTlvain’s mortgage, he had purchased the lot of Wilkinson. The bill was taken pro confesso as to Wilkinson. The other defendants in their answer, did not admit, but required proof of Blair’s purchase. The question then was, whether Wilkinson’s admissions, implied in the order pro confesso, could be received as evidence to prove his previous sale to Blair. Chief Justice Boyle, in giving the •opinion of the Court, says, “that if Wilkinson h.ad answered and expressly admitted the contract, or sale to Blair, it could have no effect against the other defendants; 1st, because the answer of one defendant cannot be received as evidence asgainst another; and 2nd, because the confession of a vendor, after he has parted with his title, is not admissible in derogation of the title in the hands of the vendee.”

If then this be sound law, the case of Chapman forms no exception to the general rule, and his answer cannot be read for the purpose of establishing Collier’s mortgage; because this would be in derogation of his deed of trust and subsequent sale to M‘Kinley.

It next becomes important to inquire whether Birney’s answer, can be read in evidence against MtKinley.

If he had no interest in the subject of litigation, or in the event of the suit, it was not necessary to make him a party, and his deposition might have been taken and used at the hearing of the cause, as that of an indifferent witness. b

*168In ist M‘Cord’s Chancery Reports, it is said, that after k™sthas been executed, and the property delivered to those who under the deed are authorised to receive it, or jn other words to the cestui que trust, the trustee need not be made a party. If this be good law, it may have some application to the present case: for the bill shews that the trust has been executed, .and that M‘Kinley has possessien of the negroes as a purchaser, and in payment of his debt.

In 2nd Johnson’s Chancery Reports, it is laid down, that if a party be made defendant joro forma, but has no interest in the cause, and in the 6th of the same author, that a party charged as combining with others in a fraud against which relief is sought, may be a witness for his co-defendant, and seems to deny the position that he can be a witness against him. In the case before us, the bill expressly charges “that the said conveyance, meaning the deed of trust, was contrived by said defendants to defraud the complainant, and to secure Birney, who was security for the payment of M'Kinley’s debt ” In the case of Wilson v. Wilson,a it was also decided, that the evidence of a trustee was inadmissible to destroy the deed of trust, to support which, was the sole purpose for which he was created.

The result of my researches and reflections, and on this subject they have been laborious, is, that Birney is so charged in the bill as to preclude his answer from being read in evidence against M‘Kinley, and that without his answer, or the answer of. Chapman, there is no sufficient testimony to establish the complainant’s mortgage, set forth in the bill.

It appears from the record, that on the circuit, the case was heard on the bill, answers, and proofs; but what those proofs were, we are not informed by the record. If they were available to the complainant, he might have taken the 'necessary ste:ps to bring them before this Court. A majority of the Court are for affirming the decree.

Decree affirmed.