This is an action brought by the plaintiffs, a corporation, against C. D. Thompson and the other owners or claimants of the Paul Thompson Quartz Lode, to recover damages for an alleged trespass in working a lode claimed by the plaintiffs, and for an injunction against future trespasses. The summons was issued and served on Thompson alone, who appeared and filed an answer. The case was tried and judgment rendered for the defendant; from which, and from an order overruling a motion for a new trial, the plaintiffs appeal.
On the trial the defendant offered one Trainovitch as a witness, who testified that at the commencement of the suit he was a member of the company that sunk the shaft complained of, but had sold out three or four months before; that he had agreed to pay his proportion of the expenses of the suit, according to the quantity of ground he held; that the company had deeded to him the portion of ground they had agreed to, twenty-five feet, of which he had sold to one Castro, and had taken Castro’s note for a part of the purchase money, and had agreed that if he did not give him a good title he would give him up his note. Thereupon the defendant, Thompson, executed to witness a release from all actions and all liability which might accrue to him by reason of any judgment which might be obtained against him in the action. The plaintiff objected that the witness was incompetent on the ground of interest; the objection was overruled and the witness allowed to testify, and this is now assigned as error. The witness was not a party to the action. The statement that the action was brought against “ C. D. Thompson and the other owners or claimants of the Paul Thompson Quartz Lode,” only made Thompson defendant, unless other persons were brought in and made parties by proper proceedings under the direction of the Court, which was not done in this case. It is urged, *545however, that the witness agreed with the other owners to pay his proportion of the expenses; that he was therefore liable to his coowners, and the release by Thompson did not release him from that liability, and therefore he still continued interested to that extent in the result of the suit. It is evident that the agreement was not between the witness and the other owners, but between the defendant, Thompson, who was the person legally liable for the costs and expenses, being the sole defendant to the action, and the other owners, including the witness, and therefore Thompson’s release effectually discharged the witness from his liability under that agreement.
It is also urged that he was interested under his agreement with Castro; that the purchase money due him from Castro was dependent on this action, and that he would therefore either “ gain or lose by the direct legal operation and effect of the judgment.” The agreement with Castro was not that he would give up the note if Thompson lost the suit, but if he did not give him a good title to the twenty-five feet of a quartz lode which he had sold him. It nowhere appears that the judgment in this action will in any way affect or determine the title to this twenty-five feet sold by the witness to Castro. If such is the fact, the plaintiff should have shown it clearly, as the foundation of his objection; not having done so, his objection cannot be sustained. We have no right to presume that the witness was interested; the fact of interest should be clearly disclosed by the record. It follows, that there was no error in admitting the witness to testify.
After the defendant had closed his testimony, the plaintiffs called one Smith as a rebutting witness, and asked him these questions: “ First—What was the appearance of the ground immediately after the stripping had been done last year ? Second—Was there developed by that stripping any indication of a quartz lead ?” It appears that the plaintiff had examined several witnesses in the opening of the case in relation to the stripping of the lead, and the result of it. Some evidence was introduced by the defendant in relation to other leads crossing the lead thus stripped by the plaintiffs, and the latter contend that they had a right to put these questions to rebut this evidence of the defendant. The Court, however, sustained defendant’s objection to these questions, and this is also assigned as *546error. The record shows that although these two questions were ruled out, yet the plaintiffs were permitted subsequently to put other questions to the witness, in answering which the witness testified to the same matter to which these questions pointed, and they therefore suffered no injury by this ruling of the Court.
The judgment is affirmed.