The case of Beale v. Finch (1 Kern 128), presented only the question of the admissibility [*268 of one defendant to be a witness for another, and neither required nor permitted us to determine what matters a defendant, called by his co-defendant, might testify to. Our decision in that case, therefore, while it establishes the right of one defendant in an action for an injury to the person or to personal property, to call a co-defendant as a witness, left the question presented in this case undisposed of. In this case, *268 the matter to which each defendant was offered to be examined, was the existence of a right in the defendants to do the acts complained of by the plaintiff as a trespass. In this matter they were jointly interested, because the proof which would exonerate one, would necessarily discharge the other, provided it were receivable on behalf of both. Such a matter is not within the permission contained in § 397 of the Code.

The decision below was right and the judgment should be affirmed.

Marvin, J., also delivered an opinion in favor of affirmance.

Judgment accordingly.