¶1In an action of trover, after one defendant was defaulted, the other pleaded; and on a trial of the issue, Bonney, who pleaded, called Cummings, who was defaulted as a witness, first generally, next as a witness upon the question of joint hiring, and not on the question of damages *392but he was rejected. The court are of opinion, that he was not a competent witness, on the ground of interest, and was rightly rejected.
¶2In an action of trover, there can be but one assessment of damages. Though one defendant is defaulted and the other found guilty, yet there must be a joint judgment. The verdict, which is to fix the amount of damages, fixes it as well for the party defaulted, as for the party who pleaded. The defaulted defendant, therefore, has a direct interest in favor of his co-defendant, the party who called him, to reduce the damages. Thorpe v. Barber, 5 M. G. & S. 675.
¶3In a subsequent case, Haddrick v. Heslop, 12 Ad. & El. N. S. 267, in trespass, a defaulted defendant was admitted as a competent witness ; but he was called by the plaintiff, and of course to testify against his interest. But the authority of Thorpe v. Barber was recognized and affirmed.
¶4We think a similar rule was adopted on similar grounds, by this court, in the case of Vinal v. Burrill, 18 Pick. 29, which is distinguishable, we think, from the case of Bradlee v. Neal, 16 Pick. 501; because that was upon contract, where there would be contribution amongst defendants, in case of a joint judgment; where the rights of the defendants themselves would not be determined by the judgment, in the case on trial; and where, therefore, the witness, had no direct interest in the event of the suit.
¶5It appears to us very clear, that the competency of the witness could not depend upon the consideration, that he was specially called to testify to a fact, in which he was not interested, and not to the question of damages. If admissible at all, we think he would be liable to be examined upon all matters pertinent to the issue. His competency depends upon his interest in the event of the suit, and not in the particular question to which the party calling him chooses to examine him. A different notion has sometimes been suggested, but we think there is no ground for it.
¶6Judgment on the verdict for the plaintiff.