#### SALLY WILDER AND OTHERS *against*BENJAMIN D. MANN, Administrator, AND OTHERS.

A party defendant, in a suit, has a right to have an order for taking the deposition of a oo-defendant, *not concerned in interest,*in favor of the applicant.

Tuts was an appeal from an interlocutory order made by Dios, J., at the last Spring Term of the Court of Equity of Hash County.

At this term, the following affidavit was filed in behalf of the Trustees of the University, who are co-defendants with Benjamin D. Mann, Barbara Goodwin, Sarah Pope, Unity Paiier and others, viz :

*“*Edward Cantwell, solicitor for the University, maketh oath, that Sarah Pope and Barbara Goodwin, are material witnesses for their co-defendant, the University aforesaid, and are not interested on the part of the University in this case.” And a motion was made for an order to take the depositions *67•of the said Sarah Fo.pe and Barbara Goodwin, which was opposed by the plaintiffs, on the ground, that they were parties and had an interest identical with theirs, but the objection ■was overruled by the Court, and an order was made in these words:

“ It appearing to the Court, upon the affidavit of Edward Cantwell, that Sarah Pope and Barbara Goodwin, defendants •in this case, are material witnesses for the Trustees of the University, defendant, and are not interested on the side of the applicant:”

“ Ordered that the Trustees aforesaid, have leave to examine •the said Barbara and Sarah — first giving the plaintiffs notice of the time and place, as required by law, subject to all just ■exceptions.”

From which order the plaintiffs prayed an appeal to this 'Court, which was allowed.

*Dorteh*and Moore, for the plaintiffs.

*Cantwell,*Lewis and *J. H. Bryan,*for the defendants.

PeaRsoh, C. J.

We think the affidavit was sufficient to •authorise the order, allowing the trustees of the University to take the deposition of Sarah Pope and Barbara Goodwin, who ■are co-defendants, subject to all just exception.

It is settled that one cannot object to being examined as a witness, on the ground, that his evidence will expose him to a debt or civil action, or to a civil liability, other than a forfeiture or penalty; *Jones*v. *Lanier,*2 Dev. Rep. 481; *Harper*v. *Burrow,*6 Ire. 30. Doubts were, at one time, entertained upon this question in courts of law, but it has always been the practice in Equity to compel a discovery, notwithstanding the matter disclosed would prejudice the interest of the party, and he could demur to the discovery only when it would subject him to a penalty, forfeiture, or criminal prosecution. It is admitted, that a plaintiff can compel such discovery from a defendant, and the defendant can, by a cross bill, compel a like discovery from the .plaintiff er'aco-defend-*68ant. In our case, the trustees of the University may compel a discovery from their co-defendants, Sarah Pope and Barbara Goodwin, by a cross bill, but the discovery could only be used against them, and would not be evidence against the plaintiffs, because they would have no opportunity to cross-examine, and the purpose of taking their depositions, is to make it evidence against the plaintiffs. If, as we have seen, Sarah Pope and Barbara Goodwin cannot refuse to give testimony, because it would prejudice their interests, we are at a loss to see any ground on which the plaintiffs can base an objection to it, as they will have an opportunity to cross-examine, and may thereby eviscerate the facts more fully, than can be done by a discovery in an answer, and the fact, that their answer, to a cross bill, would not be evidence against the plaintiff, shows the propriety of taking their depositions ; for otherwise, the facts within their knowledge, which it is alleged are material, cannot be made evidence so as to affect the plaintiffs.

Our attention was called to the form of the usual affidavits in such cases, where it is set out that the party, whom it is proposed to examine, is “ not concerned in interest.” The words are explained in *Maitland*v. *Williams,*1 Ire. Eq. at page 106 : *“*It will be a good exception, (at the hearing) that the witness has an interest in the mat'ters examined to, and if this appears, his deposition cannot be read. *Moyo, the interest which forms the subject of exception to a*witness, *always means an interest adverse to the exceptamt. It would be a singular objection to the reception of testienomj, that he who testifies has am,*interest, *which may bias him in favor of the*objector.” In our case, it is a singular objection for the plaintiffs to make, that Sarah Pope and Barbara Goodwin are concerned in interest with them ; and may be under a bias against the trustees of the University, at whose instance they are to be examined against their own interest!! In England, a defendant may now be examined on the side of his interest. 6 and 7 Victoria, ch. 85, sec. 1, provides, “ that in' courts of equity, any defendant maj’’ be examined as a witness, saving just exceptions, and that any interest he may have shall not *69be deemed a just exception to his testimony, hut shall only be considered as affecting,-or *tending*to *affect,*his credit.” Showing that the words, “ not concerned in interest,” are used in the sense of interest on the side of the party, who seeks to have his deposition taken. Adams’ Equity, 365.

Per Curiam, Decretal order affirmed.