13 Gratt. 644 | Va. | 1857
The question in these cases is whether in an action under our statute against the representative of one who was jointly bound in an obligation with another who survives, and upon an issue to the merits going to the validity of the obligation and the right of the plaintiff to recover upon it, the surviving obligor is a competent witness for the defendant.
Isbell was the principal debtor and Brown, and Dunn whose testimony was offered, were jointly bound with him as sureties. In the case first named, then, that of Johnson v. Brown's adm'r, the witness Dunn has a direct and immediate interest to defeat the recovery against Brown's estate, because by so doing he prevents any demand against himself on the part of Brown's estate
But it is said the interest of the witness is greater against the cosurety than in his favor because by procuring a verdict and judgment for him, he makes himself liable for the whole amount of the joint obligation, whilst the effect of a verdict and judgment against him would be to subject him to contribution for a moiety, only. This might be so, if the liability in the former case were as immediate and direct as that in the latter. But it is not so. The liability in the former case arises out of the party’s executing the joint obligation and the relation in which he stands to the obligee, whereas in the latter case the liability to contribution grows out of the judgment or decree against the cosurety itself by the terms of the statute. And to counterbalance or outweigh an interest in the witness in one way by an equal or greater in the opposite, the latter must be also direct and immediate. For where the one is direct and the other contingent, the former must prevail. Gooda-cre v.
Under the English practice for want of a statute making the representative of one who was jointly bound with another liable to an action at law, the precise question in these cases could not occur, as the remedy at law lies only against the survivor. But a very similar question has occurred in cases where the parties were bound jointly and severally, and also in cases of partners where one has been sued without the other being joined; and it has been held in such cases that a party thus bound jointly or jointly and severally, with the defendant, was not a competent witness in his behalf. Thus in Russell v. Blake, 2 Mann. & Grang. 374, (40 Eng. C. L. R. 418,) which was an action against one of the makers of a joint and several promissory note, another of the makers was offered as a witness for the defendant; and it was admitted both by the counsel and the court that he would be incompetent except for the act 3 & 4 W. 4, ch. 42, which however it was held did remove the objection to his competency. In a previous case against one of the makers of such note the same question had been made and had been decided against the competency of the witness who was another of the makers, without re
In these, cases the witness was rejected because of the interest which he was supposed to have by reason of his liability over, and such liability for costs only was deemed sufficient to exclude him. And in Slegg v. Phillips, the same argument was pressed that was made here, that the witness had a greater interest to procure a verdict and judgment against the defendant than one in his favor; but that interest was held to be uncertain and contingent and not to counterbalance the direct interest to avoid contribution.
In this view, therefore, according to the authorities, I think Dmn was not a competent witness for the defendant in the case of Johnson, v. Brown's adm'r: and as to the case of Johnson v. Isbell's ex'or, I think it was a sufficient reason for rejecting his deposition that it was not taken in that case but in the other; and that Johnson had the opportunity to cross-examine the witness when it was taken does not remove the objection. For it could not have been used by Johnson against Isbell's ex'or, and therefore for want of mutuality could not be used by the latter against the former: as a man who cannot be prejudiced by a deposition,
That this would be so where all the parties jointly bound are in life will not perhaps be questioned, and I think our statute making the representative of a deceased party liable to an action at law will not change the rule. The act it is true provides that such representative may be charged in the same manner as if those jointly bound had been bound severally as well as jointly. This was however for the purpose of the remedy merely because the action against the representative must be a several action as the judgment is de bonis &c.; but it does not convert the obligation into a joint and several one for other purposes. If three or more be jointly bound and one die, the action against the survivors must be against-all. If one only be sued he may plead the nonjoinder of the other
As to the supposed release which is relied on, I think it only necessary to say, that if it was a good release, it would not meet the objection of the witness’s liability to contribution: but in point of fact, it is no release nor could it be pleaded as such by Dunn himself in bar of an action against him. To be available as such, the release must be express and not merely a constructive release. 7 Bac. Abr. (Bouv. ed.) “ Obligations” D, p. 254. This was a mere covenant on the part of Johnson, that at a future period after j udgment should have been recovered against all the parties, he would relieve Dunn from the payment of the same, thus expressly negativing the idea of any bar to an action even against Dunn.
On the whole I think the court did not err in excluding the evidence in- either case and am of opinion to affirm the judgments.
The other judges concurred in the opinion of Lee, J.
Judgments affirmed.