Jennings v. Fisher , 61 Mass. 239 ( 1851 )

Fletcher, J.

Of the great number of questions which have been raised in this case, and elaborately investigated and discussed by the respective counsel, it is necessary to consider only one, which is very simple, and entirely decisive of the case.

The ruling of the court of common pleas was in accordance with the practice and rulings of courts heretofore in this commonwealth; and, were it not for the revised statutes, the witness' would have stood perfectly indifferent, disinterested and competent, and the ruling would have been correct. But for these statutes, the witness being released by the defendants from his liability to contribute, it would have been a matter of entire indifference to him, whether the defendants or the plaintiff prevailed; as no suit could be maintained against the witness on the note in either event. If the plaintiff prevailed, and obtained a judgment against the defendants, the witness, not being a party to the judgment, would not be liable on that, and could not be sued on the note without joining his co-promisors; and they could not be joined, as a judgment on the note would have already been obtained against them. If the defendants prevailed, and obtained a judgment in their favor, they would thereby be released from liability on the note; and they being released, the witness would also necessarily be released, as a suit could not be maintained against him as a sole promisor. Such would be the situation of the witness independent of the statute.

But the situation of the witness is most materially altered as to interest by the Eev. Sts. c. 92, § 13, by which it is provided that, in a case like the present, if the plaintiff obtains a judgment against the two defendants, the witness may nevertheless be sued and held liable in a separate action against him on the note. This section was not in the commissioners’ report of the statutes, but was one of the amendments added by the legislature. While the statute has thus made a change in the liability of the witness, in case the plaintiff recovers against the defendants, it has not altered the law, as to the witness,. in case the defendants prevail ; so that, in the latter case, the witness is released from liability on the note, as before the statute. As the law stood, therefore, at-the time of fhis trial, if the plaintiff prevailed against the defendants, the witness would be held liable to a separate action on the note; whereas, if the defendants prevailed, the witness would be released from liability on the note. It is manifest, therefore, that the witness had a direct interest to defeat the plaintiff’s suit; and being called by the defendants to testify for them, the witness was interested and incompetent, and should not have been admitted.

The witness being thus incompetent as a witness for the defendants, and the verdict being for the defendants, it must be set aside, and a new trial had in the court of common pleas.