Bull v. Strong , 49 Mass. 8 ( 1844 )

Dewet, J.

The question, whether one who is a party to the record is to be excluded as a witness for that cause, under all circumstances, where the only objection to his admissibility is that he is a party to the record, is one upon which there has not been an entire uniformity of decision. In this Commonwealth, the weight of authority is strongly in favor of excluding the witness in such case. Commonwealth v. Marsh, 10 Pick. 57. Fox v. Whitney, 16 Mass. 121. Columbian Manufacturing Co.v. Dutch, 13 Pick. 125.

In Chaffee v. Jones, 19 Pick. 260, however, this court held, that in an action against principal and surety upon a note of hand, the principal, after having been defaulted, was a competent witness, in behalf of the surety, to disprove his liability. Also, in Bradlee v. Neal, 16 Pick. 501, it was held, that in an action on contract, against two or more persons, a defendant who had been defaulted was, with his consent, a competent witness for his co-defendants. These cases would seem to conflict with the doctrine that a party to the record is an incompetent witness for that cause merely, and would also go to remove the further objection of interest in the witness, were it not that these cases occurred and were decided upon the provisions of our St. of 1834, c. 189, “ that if, in any action on debt or contract, it shall appear at any time before final judgment therein that any of the defendants was not a party to such contract, he shall be discharged therefrom,” &c. “ and the plaintiff shall thereupon be entitled to recover against any other defendant or defendants, in the same manner as if such action had been originally brought against” him only. Under these provisions, the suit may be said to be ended, as it respects all the defendants who are defaulted, and all interest is also removed, as it respects their own liability. For although the action be on contract, and that laid jointly, yet by force of the statute, without proof of such joint contract, a recovery was to be had against such of the defendants as were found, either by their default or by verdict of the jury, to have promised; and this without any change in the pleadings.

Without expressing any further opinion, or deeming it necessary to review the various other authorities bearing upon the point whether parties to the record are, for that cause alone, incompetent as witnesses, the court are clearly of opinion that the witness offered in this case was incompetent on the ground of direct interest in the question submitted to the jury. Independently of the statute provision just referred to, the rule of law is, that the party who declares upon a joint contract must recover against all the persons declared against, as joint promisors, or he cannot recover at all. Tuttle v. Cooper, 10 Pick. 281. Columbian Manufacturing Co. v. Dutch, 13 Pick. 125. Greenl. on Ev. $ 356. The St. of 1834, c. 189, is no longer in force; and the substituted provisions, found in the Rev. Sts. c. 100, are materially different in this respect. Sect. 6 provides, that in case of a default of one or more of the defendants, the plaintiff may amend his declaration, and take judgment against the defendants thus defaulted, discontinuing as to the other defendants ; such discontinuance and amendment not to be allowed without notice, to the defendants who have been defaulted, that they may appear and object, if they shall see fit. Sect. 7 provides for cases where no default has been entered, and allows a plaintiff to discontinue as against any of the defendants, at any time before the cause is argued to the jury; and if there is no such argument, at any time before the cause is committed to the jury ; and the plaintiff may thereupon amend his declaration, and the defendants against whom the cause has been discontinued may be thereupon examined as witnesses for either party, if in other respects competent.

These provisions, it is quite obvious, leave the case of an action, in which the declaration sets forth a joint promise, to be tried upon the same principles that governed similar cases before the St. of 1834, c. 189, which, as we have shown, was the right to recover against all the defendants or none. There was no amendment of the declaration in the present case, and the plaintiff asked for none. He put his case upon the joint promise of both the defendants, and he will recover against both or neither; and this notwithstanding the default of Strong, one of the defendants. Strong, the proposed witness, by whom Herrick, the other defendant, offers to show that this was not a joint contract, is directly interested in establishing that fact; for if this be found by the jury, a judgment must be entered against the plaintiff, as well in favor of Strong as of Herrick. It presents a case of direct interest, and the testimony is therefore incompetent.

New trial granted.