Bean v. Walker

38 N.H. 359 | N.H. | 1859

Fowler, J.

Taking for granted, what a portion of the court were strongly inclined to doubt, but what seems to be conceded in the argument of the plaintiff’s counsel, that the provisions of the Revised Statutes in relation to proceedings in actions ex contractu, against several, are but a substantial reenactment, in somewhat different language, of the statute of July 4, 1834, it may be regarded as well settled in this State, that one of several defendants in such actions, who had been defaulted, was a competent witness for his co-defendant, prior to the recent legislation making parties to actions competent witnesses, provided he had no interest in the controversy between the plaintiff and such co-defendant. If the defence were one personal to that co-defendant, he had no interest, so far as the debt claimed to be recovered was concerned, since under the statute, the plaintiff might take judgment against him whether his co-defendant were found liable or not. If released from any liability to his co-defendant for costs, he was, therefore, a competent witness, although, as in the case before us, his co-defendant might have been his surety in the contract, since it must have been a matter of indifference, and wholly immaterial, whether he should pay the debt to the plaintiff, or to his surety co-defendant. Blake v. Ladd, 10 N. H. 190; Essex Bank v. Rix, 10 N. H. 101; Bowman v. Noyes, 12 N. H. 302; Manchester Bank v. Moore, 19 N. H. 564; Chase v. Lovering, 27 N. H. (7 Fost.) 295.

But the plaintiff’s counsel contends that, although Chase, the principal debtor in the present case, after his default and his release by his surety and co-defendant from liability for costs, had no interest in the debt or the costs of litigation up to the time of his default, which would render him incompetent, still he was so interested in the costs of the subsequent litigation between the plaintiff and his co-defendant as to be disqualified; since he had an interest to testify in such a manner as to discharge his co-defendant, and, consequently, himself from those costs.

This argument proceeds on the assumption that, in assumpsit against several upon a joint contract, a defaulted defendant is legally liable for the costs of subsequent litigation between the plaintiff and his co-defendant, as to a matter of defence personal to such co-defendant, in case such co-defendant shall be unsuccessful therein, notwithstanding the provisions of our statute ; a proposition by no means clear, and which would seem to be exceedingly unreasonable, but the correctness or incorrectness of which it is not now necessary to determine. It rests on the doctrine that, in suits of this character, there can be only one judgment for the plaintiff', which must be for the debt and entire costs against all the defendants who are ultimately found liable; so that, if the co-defendant fails in his personal defence, the defaulted defendant will be liable for all the costs of the litigation between such co-defendant and the plaintiff.

But, if this theory of the plaintiff’s counsel be correct, it seems to us that a defaulted defendant, against whom, under our statute, as it has been construed, the plaintiff may take judgment for the debt or damages, whatever the result of the litigation between himself and another defendant, must be liable for the costs of the subsequent litigation, whether that other defendant is ultimately charged for the debt or damages, or not. If the discharge of his co-defendant from liability for any portion of the debt or damages does not operate to discharge a defaulted defendant therefrom, neither can the discharge of that co-defendant from liability for any portion of the costs operate to discharge him from those costs. A defaulted defendant must be legally liable for the costs of subsequent litigation between the plaintiff and his co-defendant, or not liable for them. If liable at all, it must be because he is liable for the debt, and the plaintiff’ recovers costs only as incident to the recovery of the debt, and can have but a single judgment; consequently his liability for costs must be coextensive with his liability for the debt. If a plaintiff be entitled to judgment against two defendants for his debt, he is at the same time entitled to judgment for his taxable costs against the same defendants; if he be entitled, as the result of his suit, to judgment for his debt against only one of those defendants, he cannot be obliged to relinquish any portion of the costs necessarily and properly incurred in obtaining that judgment because another defendant was found not liable, and he is compelled to pay him costs. The penalty he incurs as the consequence of his want of success against the other defendant, consists in Ms being subjected to a judgment in favor of tbat other defendant for bis costs, and not in bis being obliged to lose any portion of tbe costs properly incident to tbe recovery of tbe judgment for bis debt. Under our statute, tbe court might and perhaps would, on motion, interfere to limit tbe costs to be recovered against a defaulted defendant in such case, but on tbe theory assumed by tbe counsel for tbe plaintiff, tbe legal liability and result must be as we have stated them.

It seems to us quite plain, therefore, tbat so far as tbe costs of subsequent litigation were concerned, tbe principal debtor, having been defaulted, was entirely indifferent, without any release, as to tbe result of tbe controversy between tbe plaintiff and bis surety co-defendant, because, on tbe theory of tbe plaintiff’s counsel, be must have been legally liable for those costs equally, whether bis co-defendant were discharged or not; and, after being released, if be bad any interest, it was against tbe party calling him, inasmuch as, in the event of a judgment against both himself and bis surety, and tbe enforcing of tbat judgment against tbe surety, the release would protect him against any claim by tbe surety for any portion of tbe entire costs of tbe suit.

With these views, tbe objections taken to tbe ruling of tbe court admitting Chase as a witness must be overruled, and there must be judgment for tbe defendant, Walker, on tbe verdict in bis favor.

Judgment on the verdict.