The question to be decided is, whether Winslow Ames was a competent witness in this case ? As the defendant had released the witness from all claim to contribution, Ames had no interest in the event of the suit, unless he can use the judgment in this case as a bar to any suit, that may be brought against him upon the note.
It is a well settled principle of law, that in an action upon a contract against two, if one be defaulted, yet if the other shows a good defence, the plaintiff can have judgment against neither. 2 N. H. Rep. 283, Pillsbury vs. Commett.—1 Levintz 63, Porter vs. Harris.—10 John. 524, Clason vs. Morris.
But it seems never to have been supposed, that a judgment in favor of one maker of a note could avail another maker of the same note, in a suit brought against him. 14 Mass. Rep. 303.—16 Mass. Rep. 118, Fox vs. Whitney.—Peake's N. P. cases 174, Goodacre vs. Bream.—1 Esp. N. P. cases 103. Young vs. Bairner.—1 Pick. 118, Gibbs vs. Bryant.
We are therefore of opinion, that there ought to be
Judgment on the verdick