Thornton v. Blaisdell , 37 Me. 190 ( 1853 )

Howard, J.

— The plaintiff declared upon a joint promise of the defendants, and must maintain the promise and liability alleged, or fail in his suit. In an action ex contractu, against several, a judgment cannot be rendered against one, without including the others, unless they have been discharged by operation of law, or exempted by some personal matter, from the obligation of the contract. 1 Chitty’s Pl. 32; Chandler v. Parkes & al. 3 Esp. R. 76; Noke & al. v. Ingham, in error, 1 Wilson, 89; Tuttle v. Cooper & al., 10 Pick. 281, where the general rule, and the .exceptions to it, are largely discussed, by Shaw, C. J., as recognized in English and American cases. But such discharge, or exemption is not assumed in defence of this case.

One of several defendants, in an action ex contractu, who has been defaulted, cannot be a witness for another who defends, because he is interested to defeat the suit against the latter, and thereby to prevent a judgment' against himself. 1 Greenl. Ev. § 356; Bull v. Strong, 8 Metc. 8; Noon v. Eldred, 3 Hill, 104, n. a; Mills v. Lee & al. 4 Hill, 549. The cases of Bradlee v. Neale, 16 Pick. 501, and Chaffee v. Jones, 19 Pick. 260, were decided upon the provisions of a statute of Massachusetts, 1834, c. 189, since repealed, and do not conflict in principle, with previous and subsequent decisions by the same Court, upon the general rule of law in such cases.

After a default, therefore, Blaisdell was not a competent witness for Gilpatrick, the other ' defendant, at the trial, as he was direetly interested to sustain the defence.

It was competent for Gilpatrick to prove usury by competent testimony of others, or to support the defence of usury by his own oath. R. S., c. 69, § § 2,3. But Blaisdell, who had suffered a default to be entered against him, could not defend on any ground. For, by the default he admitted the cause of action, and that the amount claimed upon the contract was due, and yielded all his right to a defence; and final judgment might have been rendered, without further evidence as to his liability. As a party to the suit, and a debtor by default and admission, he could not, under the provisions of the statute, “ come into Court, where the cause is pending,” and swear to the usury assumed by another party who made defence. If- both had been defaulted, the question of usury could not have been raised by either. The privilege of a party, of swearing to usury in his contract, is personal to him who alleges it, and defends, and cannot be invoked by another. As a party, then, Blaisdell had waived that privilege, by suffering a default, and as a witness for the other defendant, he was incompetent by reason of interest in the event of the cause.

The motion to take off the default was addressed to the discretion of the presiding Judge, and his ruling upon it cannot be reexamined upon exceptions.

Exceptions overruled. Judgment on the verdict.

Shepley, C. J., and Tenney, Wells and Appleton, J. J., concurred.