Turner v. Lazarus , 6 Ala. 875 ( 1844 )

COLLIER, C. J.

Placing all other considerations out of view, and the incompctency of Morris asa witness, may be.rested upon the ground that he was sued jointly with those for whom he was called on to testify, as the makers of a promissory note.—

True, the act of 1818, declares, that every promissory note, &c. shall be construed to have the same effect iu law as a joint and several note, &c. and makes it lawful to sue out process, and proceed to judgment against any one or more of the makers. And where a writ shall issue against any two or more joint makers of such note, it is competent for the plaintiff’ after its return, to discontinue his action against any one or more of the defendants, on. whom the writ shall not have been served, and proceed to judgment against those on whom it shall have been executed. [Clay’s Dig. 323, § 61,62.] This statute has never been held to authorise a judgment against one joint maker of a note where all of them have been brought before the court by the service of process. It permits a less number to be sued, and allows a discontinuance as to those on whom the writ has not been executed; beyond this it does not modify the common law as it relates to the case before us.

Even suppose a judgment by default had been obtained against Morris, before he was offered as a witness for his co-defendants, and upon the trial of the issue they were successful, the effect of the verdict would be to vacate that judgment and operate a discontinuance of the action. Morris then was called to produce a result by his evidence, which would have led to his discharge from the suit. He was consequently an interested witness, and rightly excluded. Such was the decision even where the co-defendant, who was offered as a witness, had been defaulted, in Pilsbury v. Cammett, et al., [2 N. Hamp. Rep. 283. See also, Bradlee, et al. v. Neal, et al. 16 Pick. Rep. 501; Scott v. Jones, 5 Ala. Rep. 694.]

It is enacted by a statute of this State, that the writing on which any suit shall be brought in the courts of this State, shall be received as evidence of the debt or duty for which it was given; and the defendant shall not deny the execution of the same, unless it be by plea supported by affidavit. [Clay’s Dig. 340, § 152.] The third plea of the defendants, Turner and Stanton, does not deny that they subscribed the note in question as makers, it impliedly admits such to be the fact; but it alleges that they did make and deliver it with L. J. Morris, or L. J. Morris & Co_ This is clearly not such a plea as the statute requires should be verified by affidavit. It sets up an immaterial fact as a bar to the action; immaterial we say, because it does not amount to a denial of the execution of the writing, and whether true or false, cannot have any influence upon the liability of the defendants who pleaded it. Whether L. J. Morris & Co. simultaneously subscribed the note with Turner and Stanton form no criterion by which to adjust the legal liability of the respective makers. If their names were placed to the paper after it had become operative, its binding efficacy as to the previous parties to it, would not be in any manner impaired; and it would not be less valid as a note. This being the case, that part of the act which makes the writing on which a súit is commenced, evidence of the debt or duty, would apply and dispense with other proof, until countervailed by testimony adduced by the defendant.

This view renders it unnecessary to consider what would be the effect of Stone v. Gover, [1 Ala. Rep. N. S. 287,] upon the last plea, or what evidence it requires on the part of the plaintiffs. It results from what has been said, that the county court laid down the law correctly, — its judgment is consequently affirmed.