The opinion
The judgment of the court was pronounced by
King,- J.
The defendants have appealed from a judgment rendered against them on an open account. They contend that the district judge erred in rendering a judgment in solido against them, their liability being only joint; and in refusing to issue an attachment to enforce the appearance of Stockton, one of the defendants, who was summoned as a Witness-in the cause.
The defendants were associated together as ship carpenters; this was an ordinary partnership,- and their liability was joint. A judgment in sólido is prayed for in the petition-. The decree' does not, in express terms, condemn the defendants in solido, but, construed with reference to th'e pleadings,- may he considered and enforced as a joint and several judgment. Heath et al. v. Howell & Johnson, 15 La. 139 . In this respect the judgment must be amended.
The judge did not, in our opinion, err'in refusing the attachment to enforce the appearance of Stockton, one of the defendants, as a-witness.- He was clearly incompetent to testify. Assuming the facts- stated in the bill of exceptions to be true, that the partnership between the defendants- had been dissolved previous to the trial of the cause, and that Hughes had assumed all- the obligations *624 of the partnership, and granted a full discharge and release to Stockton, -still this contract, to which the plaintiff was no party, did not impair his recourse against Stockton. Stockton continued to be a joint debtor of the plaintiff, and a real party defendant in the cause ; as such- he could not be called as a witness by liis co-defendant. We think that the sum awarded to the plaintiff by the court below is fully supported by the testimony.
The judgment of the district judge is therefore so amended, as to render the defendants liable jointly and notm solido, for the payment of the same; the appellee paying the easts of this appeal.