Sparks

delivered the opinion of the court. Murray, Chief Justice, concurred.

As has been frequently determined in cases heretofore, we cannot revise the finding of the jury upon the facts.

The only question for consideration, is whether the District Court erred, in refusing to allow the two defendants to give evidence for each other.

Section 423 of the Practice Act, declares, “ A party may be examined on the part of his co-plaintiff, or co-defendant; but the examination thus taken shall not be used on behalf of the party examined, except as against the examining party.”

The defendants answered separately. The issue raised by the answer of Kohler is, that the note given by him had been altered in a material part, and was therefore a forgery. This defence, if sustained by proof, would be fatal to any recovery whatever on the paper, and neither of the defendants could properly be permitted to give evidence on this point for one another, because the defence must equally avail the party giving evidence. According to the case as made, this was the only question upon which Broderick could be called to give evidence for Kohler, and it was therefore properly decided that he was…