Craig v. Kittredge

It sometimes happens that the various persons who are necessarily made defendants in suits in equity, have not a common interest in each and every contested point that arises in the cause, and that, therefore, one may, on leave had, be examined in behalf of the other. Gresley Eq. Ev. 242, 243.

But here the question is whether the deceased, under whom the two defendants claim as mere volunteers, did through mistake omit to convey the land which he was equitably bound to convey, to the wife of Craig. If so, for aught that appears, the defendants are bound by the same equity. The charge is indivisible, and attaches to the land, and the interest of the defendants is joint. It is *170therefore clear that the wife of either of them is an incompetent witness, upon a well founded principle of evidence common to equity and law. Gresley Eq. Ev. 40, 245. Had the commissioner, therefore, proceeded to take the examination of the witness, the testimony could not have been used. And this disposes of the only question understood to have been submitted. The evidence was properly rejected.