4. In all actions, whether of contract or
tort, whenever a plaintiff calls one of
several defendants, and by examining
him gives evidence tending to esta
blish a cause of action against all joint-
ly, and by establishing which all may 9.
be charged with the same amount for
which either, on the same facts, would
be liable if sued alone, the other defen-
dants may be examined, as witnesses
in their own behalf, to the same cause
of action. Kilmer v. O'Hara. 601
5. It will make no difference, that the
Court may be competent in such ac-
tion and on such facts, in the exercise
of its equitable jurisdiction, to charge
the defendants so offering themselves
in their own behalf to pay a part only
of the whole sum claimed, or if charged
with the whole, to direct that they be
so charged only in the event that all
cannot be collected of their co-defen-
8. Semble. If the examination is to be
as of a witness examined conditionally,
a summons must be issued to compel
the attendance of the party whose ex-
amination is sought. An order is only
necessary to show the existence of
facts giving a right to so examine, and
to authenticate the proceedings. The
witness does not attend in obedience
to the order, but in obedience to the
summons. If the examination is had
before, instead of taking it at the trial,
no order is necessary. A notice to the
party, and that alone, is necessary to
give the right to examine, and a sum-
mons is necessary to compel attendance
and lay the foundation for ulterior pro-
ceedings, in case of non-attendance in
obedience to it.
10. Whether, when in an action against
husband and wife, the complaint states
as a cause of action, facts which, if
proved, will entitle the plaintiff to a
judgment against the husband perso-
nally, and he has not been served with