12 N.H. 302 | Superior Court of New Hampshire | 1841
The only question in this case is, whether John M. Noyes was rightly admitted as a witness. He is one of the defendants; but his being a party to the record does not necessarily exclude his evidence, if he consents to be examined, and has no interest. He made no defence to the action, and his default was entered of record before his examination. The other defendants, Moses Noyes and Sawyer, pleaded the general issue, and the statute of limitations. Upon the trial of these issues, Moses Noyes, under the general issue, relied upon two matters in defence, either of which, if sustained, would entitle him to a verdict. He contended that he was a surety, and that a binding contract for delay had been made between the payee of the note and John M. Noyes, one of the principals, which operated to discharge him. This was a defence personal to himself, and not affecting the justice of the plaintiff’s claim against John M. Noyes and Sawyer.
The contract for delay, if it was made, was before the in-dorsement of the note ; but it furnished a good defence against the plaintiff, who must, in such case, have taken it after it was due. 6 N. H. Rep. 504, Wheat vs. Kendall.
The other ground of defence, by Moses Noyes, was payment, by J. M. Noyes and Sawyer, or from the avails of property belonging to them, which went into the hands of the payee. If this point of the defence was true, the plaintiff had in fact no cause of action against any one. It might be shown to be true in part, and thus reduce the amount apparently due upon the note. These matters, and the issue on the plea of the statute of limitations, being on trial, John M. Noyes was offered and admitted as a witness, and gave evidence tending to support both branches of the defence relied upon by Moses Noyes, under the general issue.
Since the statute of July 4, 1834, by which one defendant, in an action founded on contract, may be discharged on trial, and judgment rendered against the others, we have decided that one defendant in such action, being defaulted, and
Some of the authorities cited in this case, by the plaintiff’s counsel, show that according to the course of proceeding in England, and New York, where, in an action for a tort, one defendant is defaulted, and another pleads to issue, the jury who try the issue are also to inquire of, and assess the damages against, the one who is defaulted. 6 Cowen's R. 313; Ditto 600, and auth. cited; Rich. Pr. K. B. 225.
In actions on contracts, also, where one is defaulted, and others plead, as it is not known whether those who plead “ will be convicted of the premises ; and if they shall be convicted, it is convenient and necessary that there should be but one taxation of damages for the whole premises in one writ specified, and those damages ought to be settled by the jury of the country in that behalf,” the writ of inquiry of damages, against the one defaulted, is stayed, until the issue between the plaintiff and the others is determined, and the jury summoned as well to try the issue, “as also to inquire what damages the plaintiff hath sustained by occasion of the premises aforesaid.” 2 Rich. Pr. C. P. 18.
Other authorities cited by the plaintiff’s counsel show, that if one defendant pleads matter whereby it appears that the plaintiff has no cause of action, and obtains a verdict, the plaintiff is not entitled to judgment agaihst a defendant who has been defaulted. 2 Ld. Raym. 1372, Biggs vs. Benger; 1 Strange 610, S. C.; Cro. Jac. 134, Marler vs. Ayliffe. The whole record shows that the plaintiff had no cause of action.
Of course, in these two classes of cases, a defendant who
The practice in this state, when a default has been entered, is for the court to assess the damages, instead of awarding a venire, unless for special reasons the court should order an inquiry into the damages by the jury. And where, in actions on contracts, one defendant is defaulted, and another defends, there has not been, in point of form, any inquiry of damages against the one defaulted ; but in practice, the jury have, in effect, assessed them, if they found against the other defendant. If they found for the one who pleaded, prior to the statute of 1834, no judgment was rendered against the one defaulted. 2 N. H. Rep. 283; 3 N. H. Rep. 115. If they found against him, the assessment of the damages has been general, and judgment rendered against all for the amount of the verdict. It has been the same, in effect, therefore, as if a venire tarn qaam had been awarded, and the damages formally assessed against all by the verdict. The mode of assessing damages in actions for tort has been similar. If one is defaulted, and another pleads, and there is a verdict against him. judgment is rendered against both for the amount of damages assessed by the jury, which seems to be sufficiently warranted by a case cited, 5 Co. 6. If the one who defends obtains a verdict, then damages are assessed on the default, as if there had been originally but a single defendant.
Such being the practice, it is apparent that a defendant who is defaulted cannot be a witness for another defendant who pleads to issue, where the defence is not personal to the latter, or where it may affect the damages against the one defaulted. He has in such case a direct interest.
But when the damages for the breach of an alleged joint contract are uncertain, if one by his default admits a cause of action against himself, and another pleads, and denies that he is liable, there is not only an inquiry to be gone into whether the one who pleads is jointly liable with the other, but there is to be a farther introduction and consideration of evidence, in order to ascertain and render certain the amount of damages, if the contract is broken; and the amount assessed by the jury on the issue, if they find for the plaintiff, will be taken as the measure of damages against the defendant who is defaulted. What was before uncertain as to him will be rendered certain and established by the verdict. He has, in such case, an evident interest, at least to reduce the amount. So where one of two sued on a joint contract is defaulted, and the other sets up in defence that he has paid the demand — the evidence may extend to defeat the action against him entirely, or it may be sufficient to reduce the damages ; and if the one defaulted was admitted as a witness, he might at least effectually reduce the amount of the judgment against himself.
Is this result to be produced in no case where the matter does not specially appear on the record ? In the present case, one ground of defence was payment, and this defence Moses Noyes had the right to make under the general issue. He might have pleaded it specially, but was not bound to do so. 1 Chilly's Pl. 499. Had this been his sole defence, and had it been sustained by the verdict of the jury, finding the technical issue that he “never promised,” because the evidence clearly established the fact that the note had been paid and satisfied, ought a judgment to be rendered against John M. Noyes, on his default, for the amount of the debt thus shown by the verdict to have been once paid, because the fact of the payment did not appear of record, the precise nature of the defence not having been set forth by the plea ? It would be as fully within the knowledge of the court, that the jury had found, on competent evidence, that the note was paid, as if there had been a special plea. Must the court, when it came to dispose of the action, on the default, know nothing of the nature of the defence which had been tried, because it could not be seen upon the face of the record ? Must the evidence of its senses be disregarded, and the court be bound to render a judgment on the default, and issue an execution to enable the plaintiff to obtain what it was apparent would be second payment of his debt, because a defendant had perhaps been careless or inattentive ? It has been urged by the counsel for the plaintiff, that where, by the rules admitting general pleading, the plea is such that the matter of defence does not appear upon the record, the court having knowledge of the nature of the defence, and what was in fact found by
There are cases in which a court cannot assume to say upon what precise ground the jury have found a general verdict ; but there are others where they know, not only that a party has obtained a verdict, but upon what particular ground he entitled himself to it. It is little less than preposterous to say that they must shut their eyes upon this matter, because the pleading has not spread it upon the record — -because the law has allowed a general count, or a general plea. A court must judicially take notice of what is on trial before it, while the matter is in progress; and it would seem may as well after a verdict take notice of what has been done, if the matter is of a nature to admit of no actual doubt respecting the precise grounds upon which the case has proceeded, and the jury have found their verdict.
Where cases are tried under such general pleadings, there must sometimes be an inquiry, by evidence, in another court than that in which the proceedings were had, to ascertain what was the precise matter tried ; and when so ascertained, it may furnish ground to sustain another action. 3 Pick. 429, Parker, Adr., vs. Thompson. This shows that courts may receive evidence of what has been tried, and act upon the knowledge of it, where there is no special plea, and no record evidence of the matter.
It follows, that in such case the defendant who is defaulted cannot be a witness for the other, because he has an interest. A verdict for that other will operate to discharge him.
There are cases where there is an intermixing of defences, by one defendant, some of which are personal to himself, and others go to show that the plaintiff has no cause of action against any of the defendants. Such was this case. Moses Noyes might have been discharged under his plea of the statute of limitations, and judgment still have been well rendered against J. M. Noyes, on his default. So under the general issue, Moses Noyes might have entitled himself to a verdict, on the ground that he was a surety, and had been discharged by a contract for delay, made by J. M. Noyes with the creditor, and J. M. Noyes, if that had been all the matter of defence, would still have been liable on his default. The very defence set up by one in his own behalf, would tend to show that the other was legally liable, as was admitted by the
But this consideration cannot avail, to sustain the ruling by which he was admitted. Whether that was correct does not depend upon this result. Its correctness must be ascertained, not by the verdict, which may have resulted from his testimony, but upon the case as it stood at the time of his admission. If the verdict had been for the plaintiff, for a sum less than the amount apparently due on the note, the witness might have availed himself of that verdict, to reduce the damages against himself. He had an interest, therefore, at the time he was admitted.
New trial granted.