Jones v. Lowell

Appleton, J.

— In assumpsit, if a party, who ought to join as plaintiff, be omitted, the defendant may take advantage of such omission under the general issue. In trespass the exception is only available by plea in abatement. In this case, the general issue having been pleaded, the plaintiffs, though co-tenants with others in whole or in part of the property upon which the trespass was committed, are entitled to recover to the extent of the- injury by them sustained. Cabell v. Vaughan 1 Saund. 291, f.

The servant of the defendant, by whom the act complained of was done, was- called as a witness to establish the case on the part of the plaintiffs and exceptions have been alleged to the reception of his testimony on the ground of interest. When and in what cases a witness should be rejected for this cause is a question more involved in uncertainty than any other in the endless variety of topics submitted for judicial investigation. The presumption of law is in all cases in favor of admission. Every witness, who is offered, should be received to testify unless he is clearly and incontrovertibly brought within some of those legal principles which, whether wisely or not, have been deemed sufficient to justify exclusion.

In trespass, all who engage in the act, as well those who commit the trespass as those who, without being present, advise or direct its commission, are principals as between themselves and have ordinarily no contributory rights. Where there are many trespassers a suit may be brought against each severally, and a recovery of judgment against one is no bar to the prosecution of suits by the same plaintiff against each of the others for compensation for the same injury. Livingston v. Bishop, 1 Johns. 290. The plaintiff may have several actions against each trespasser and elect de melioribus damnis, but he can have but one satisfaction. Metc. Yelv. 68, a.

The recovery here being no bar to a suit against the witness for the trespass to which his testimony related, he has no interest in the judgment as a judgment. It could not be received in a suit against him to show the fact of the trespass or the amount of the injury. As against him the plaintiffs may recover more or less as the jury may determine. It is true the plaintiffs may collect the judgment they may recover against the defendant, but that contingency is one affecting the credibility rather than the competency of the witness. If the judgment should be paid, it is the payment, which will defeat the plaintiffs’ right to recover, but the payment of the damage sustained would equally have that effect, whether there was a judgment or not. It would be a consequence resulting from a satisfaction of the plaintiffs’ claim and wholly irrespective of the fact, that the same had been converted into a judgment. The judgment, as such, is of no more service to the witness, and can no more avail than would the fact, that the witness is a co-trespasser, serve the defendant as a bar to the plaintiffs’ suit. Snow v. Chandler, 10 N. H. 92. While the witness thus receives no protection by reason of the judgment against the defendant, his statements in this case may be received agáinst him and form the basis upon which the verdict is rendered. According to the entire weight of authority the testimony objected to was properly received. Marsh v. Berry, 7 Cow. 346; Collins v. Ellis, 21 Wend. 402; Dudley v. Bolles, 24 Wend. 465; 2 Smith’s Leading Cases, 72; Morris v. Daubigny, 5 J. B. Moore, 331; Blackel v. Weir, 5 B. & C. 385; 1 Phil. Ev. 68.

This reasoning may be technical. But as an estoppel against an estoppel setteth the matter at large, so resort may well he had to technicality when the effect is to free the administration of the land from the sinister effect of those rules by which such large masses of material evidence have been excluded. Exceptions overruled.

Judgment on the verdict.

Shepley, C. J., and Tenney and Rice, J. J., concurred.