57 A. 336 | N.H. | 1904
The parties to the case are the executors of Weston, who have not elected to testify, Dowst, and Elliott. The court upon motion of Dowst made an order permitting the examination of Elliott in support of a special defence set up by Dowst. The only question transferred is that raised by the exception to this order.
The plaintiffs' contention is that the testimony of Elliott cannot be received under section 16, chapter 224, Public Statutes, which provides that when one party to a suit is an executor neither party shall testify, unless the executor elects to testify. This provision is merely an exception to the general provision making all persons competent as witnesses, whether interested as parties or otherwise, and does not impose any new restrictions upon the competency of witnesses. The law as to the excepted classes remains as it was before the legislation upon the subject. Stevens v. Moulton,
"Parties named upon the record were not as such and upon that account incompetent; their incompetency arose exclusively from their interest, and if they were willing to give evidence they might be called by the opposite parties." Stark. Ev. *127. Merely nominal parties to the record, who had no interest in the result, could testify (Piddock v. Brown, 3 P. Wms. 288, — 2 Eq. Cas. Abr. 397, var. 13; Jackson v. Barron,
The rule and the reason for it are stated by Parker, C.J., in the New Hampshire case cited (pp. 325, 326), adopting the language of Gresley's Equity Evidence 338, as follows: "As a suit in equity often contains many issues, and the general rule compels all who are interested in any way to be made parties, either plaintiffs or defendants, it often happens that a person who could furnish material evidence respecting one point in dispute is precluded from doing so by being made a party, in consequence of some interest in another point. Others, who might be witnesses, are often made parties for form's sake, as a mere trustee. Leave is therefore frequently given in equity for a party to be examined, on motion suggesting that he is not interested, and saving all just exceptions. The interest spoken of in the motion is interest in the matter to be examined into, not interest generally in the cause." If, however, after the taking of the evidence it appeared that the party was interested at the time of testifying, the use of the testimony was not permitted. Second Cong. Society v. Society, supra; Bell v. Woodward,
The ruling of the superior court followed this practice, making due allowance for the change in the method of presenting evidence. The substance of the ruling was that Elliott's testimony should be received if he had no interest in the matter to which it related, and should be excluded if it appeared that he was interested. The power of the court to make the order was, as has been seen, not taken away by the statutory change rendering witnesses *440
competent who had previously been incompetent because of interest. The exception must be overruled. For the same result under a similar statute, see White v. Ross,
Whether Elliott is interested in the subject-matter about which Dowst proposes to examine him, is a question which might properly be left until the evidence is presented. The most that can now be said is, that upon the facts now before the court Elliott has no interest in the issue whether Weston did or did not by a separate contract agree to indemnify or save Dowst harmless from loss in consequence of his signing Moore's bond as surety.
The liability of each of the parties and the full amount of their several liability has been settled by the judgment against them. The bill alleges that Moore, the principal, and Brookhouse, the ether surety, are insolvent, that Dowst and Elliott are solvent, and that Elliott has paid $10,703.29 and the plaintiffs $58,384.60 in satisfaction of the judgment, while Dowst has paid nothing. None of these facts appear to be disputed. In this situation, each of the three responsible sureties, as between themselves, was bound to pay one third of the judgment. Any one paying more than his share can recover, either in a bill in equity or by an action at law, contribution for the excess by him paid, of the one who has paid nothing or less than his share. Boardman v. Paige,
Elliott, on the facts now before the court, has no more interest in the subject-matter of Dowst's defence than he would have in a suit by Dowst against the plaintiffs or some third party on a similar contract of indemnity, brought after payment by him of his proportion of the judgment. "The disqualifying interest of the witness must be in the event of the cause itself, and not in the question to be decided. His liability to a like action, or his standing in the same predicament with the party, if the verdict cannot be given in evidence for or against him, is an interest in the question only, and does not exclude him." 1 Gr. Ev., s. 389; Fuller v. Rounceville,
Whether Dowst pays his share of the judgment by the recovery or recoupment of damages due him for the breach of a contract of indemnity with the plaintiffs' testator or some third person, or by suffering a levy upon his property, does not affect Elliott's liability to the plaintiffs. The plaintiffs do not claim to recover of Dowst more than his share. If they did, and the result of the failure of Dowst's defence would be that Dowst would be compelled to pay more than his share, Elliott's interest would still be balanced, for he would remain liable for his share to any surety who had paid in excess, and it would be immaterial to him whether he paid the plaintiffs or Dowst. Hill v. Sweetser,
No question as to Dowst's insolvency is now in issue. The plaintiffs proceed upon the ground that he is solvent, and the only issues are whether he and Elliott shall each be required to pay one third of the judgment. If the plaintiffs proceeded upon the ground that Dowst were insolvent, and claimed one half of the judgment should be paid by Elliott, it may be clear that Elliott could not testify. to the agreement with Dowst for the purpose of reducing his share to one third. But the plaintiffs cannot be permitted to bring their suit against Dowst upon the ground that he is solvent and liable for one third, thereby excluding him from testifying, and at the same time claim that he is insolvent and that Elliott is liable for one half, and exclude Elliott's testimony also.
It is further urged that the testimony of the parties is offered to establish that it would be unjust to exclude them from testifying, whereas the rule is, it is claimed, that the injustice which will *442
authorize the court, under section 17, chapter 224, Public Statutes, to permit a party to testify, must appear otherwise than from the testimony of the party. Sheehan v. Hennessey,
Exception overruled.
BINGHAM, J., did not sit: the others concurred.
