Barker v. Ayers

Eccleston, J., delivered the opinion of this court. The question arising on the first bill of exceptions is, whether John Barker, one of the defendants, could be examined as a witness at the instance of the other defendant, for the purpose of proving there was no partnership between them, so far as related to the claim in controversy, and that he, John Barker, alone was responsible? When this offer was first made to examine the party as a witness, no judgment had been confessed by him, but the issue then being tried before the jury was upon the joint plea — 206 — of non assumpsit, the nar having charged the defendants as partners, and jointly liable for the claim of the plaintiffs. The bill of exceptions states the offer as intended, “to prove by the defendant, John Barker, who was willing to be examined in that behalf, that the said William was not a partner with him in the Curtis Creek business; that the goods now sued for were furnished to the witness on his individual credit and for his individual business, and that the witness did not resist the right of the plaintiffs to recover against him.” The record did not set out the plea, but this defect has been cured by an agreement stating it to have been a joint plea of non assumpsit. Under such a declaration and plea, the plaintiffs could not recover without establishing the joint liability of the defendants. The most conclusive proof, or unqualified admission, of the liability of one defendant, could not entitle the plaintiffs to a verdict and judgment against him alone. 1 Chitty on Pl., 44. Tuttle vs. Cooper, 10 Pick., 281. As the testimony, if believed by the jury, must have released the witness from responsibility, his interest rendered him incompetent. In the further progress of the cause, the record shows that John Barker withdrew his plea, and then a judgment by confession was entered against him for “$1200, damages in nar- and costs, to be released on payment of $552 71, with interest from 11th day of June 1852, and costs.” The sum mentioned in the release being the full amount of the plaintiffs’ claim. Subsequent to the entry of this judgment, John was again' called by William to testify in his behalf, but being objected to on the ground of incompetency, the court again sustained the objection, and this decision constitutes the basis of the second bill of exceptions. Whether the plaintiffs could or could not have successfully objected to the entry of this judgment, and insisted upon a' judgment against both defendants, or else that the case should' — 207 — have proceeded against both until the verdict, is not now a question before us. A release upon a judgment by confession, necessarily coming from the plaintiff, manifests clearly his consent to the judgment. In the subsequent proceedings John Barker could have no interest whatever, inducing him to prove that William was not answerable for the claim. The interest was in the opposite direction. The judgment fixed John’s responsibility for the full amount. He would not be bound even for any further accumulation of costs, in the controversy between the plaintiffs and William. If then a verdict against William could not increase the amount of John’s liability, what possible interest, in legal contemplation, could he have in so testifying as to produce a different verdict? It will readily appear how his interest might disqualify him from being a witness for the plaintiffs to prove the partnership, because in the event of a judgment against the other party, if the plaintiffs should compel that party to pay one half of the claim, the witness would be relieved to that extent. But it has been said, so inflexible is the rule which requires there should be either a joint verdict and judgment, or no judgment, under such a nar as the present, charging the defendants as partners, that notwithstanding the judgment by confession, if a verdict had been rendered in favor of the other defendant, John Barker might have reversed the judgment against him, upon appeal. And if so, he was interested in establishing the fact that there was no partnership. This; however is not our view of the subject. In Morgan vs. Briscoe and Clarke, 4 Md. Rep., 271, the court decided, that where-a judgment lias been confessed, and, of course, where there is no motion in arrest of judgment, since the act of 1825, ch. 117, there can be no reversal, although there may be no declaration. That statute was certainly designed to prevent any mere technical errors in the proceedings from being taken advantage of in the appellate tribunal, which may not appear to have been relied.upon below. And the supposed state of -facts,, which it is-said would authorize a reversal, do not pre — 208 — sent very strong equitable grounds for inducing the court so to construe the act as to permit a reversal under such circumstances. The circumstances being; a nar against two defendants charging a joint liability, a joint plea filed, but subsequently withdrawn by one, who then confesses judgment for the claim, is examined, with his consent, by the other, and proves himself solely responsible, -which testimony induces the jury to find a verdict in favor of the other defendant; and then, upon appeal, the defendant in the confessed judgment asks to have it reversed, because the joint claim was not established by a joint judgment. From the remarks of Mr. Greenleaf,, in sec. 356 in the 1st Vol. of his work on Evidence, and from the language of the court, in Talmage vs. Burlingame, 9 Barr., 21, and in Albers vs. Wilkinson, 6 G. & J., 358, it has been supposed that a judgment by default'against one defendant, will not authorize his examination as a witness in favor of the other, because he is still to be considered incompetent on the ground of interest. And this has been urged as sustaining the refusal to admit the testimony in the present instance. But there is a material distinction between a judgment by default, and a judgment like the one before us. The former only decides or settles the liability of the party without ascertaining the extent of it, in a case like the present. And we think that, ■without deciding whether a judgment by default would have authorized the admission of the testimony, there is a difference between the two judgments, quite sufficient to justify us in holding the one by confession, as fully removing the objection to the competency of the witness, even if that by default might not have a similar effect. In Preble County Bank, vs. Russell, 1 McCook’s Ohio State Rep., 313, a judgment by confession was held so effectual in removing the disability of a co-defendant as a witness, that his testimony in behalf of the other defendant was admitted. There the judgment was before the jury had been sworn and-here it was after. But ,we do not perceive how this difference can render testimony inadmissible in this, which was — 209 — rrot so In that case. Many authorities on the subject are there referred to. And the court come to the conclusion, that according to the later English decisions, the ground of excluding a party as a witness arises alone from his interest in the •event. In 1 Greenlf. on Ev., sec. 355, it is said; “The general doctrine is, that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he is a competent witness for them, his own fate .being at all events certain.” And in Pipe vs. Steele, 2 Adol. 4 & Ellis, N. S., in 42 Eng. Com. Law Rep., 889, Lord Denmon, C. J., said; “The objection that he is a party to the record, which prevailed in Brown vs. Brown, and Mant vs. Mainwaring, has been deliberately overruled in Worrall vs. Jones, a case of great authority, in which the Lord Chief Justice Tindal gave the unanimous judgment of the Common Pleas, that a party to the record may be examined as a witness, provided he be disinterested.” The general rule of evidence, which excludes a party on the record from being a witness, has been much relied upon in argument; and it is insisted, that no decision in our State is to be found, which so far qualifies or restricts this rule, as to justify a reversal in this case on account of the refusal to admit the proof offered. There can be no doubt that the authorities establish it as a general proposition, that a party to the suit is not a competent witness; but it is equally true, they declare the reason of the rule to be, that he has an interest either in the object of the suit or in the costs. As, therefore, the law is said to be founded in reason, and what is not reason is not law, it would seem to follow, necessarily, that when the reason of a legal rule ceases to exist the rule does not apply. That the mere fact of being a party does not render him incompetent to testify, is most unequivocally announced in Lizardi, et al., vs. Cohen, et al., 3 Gill, 430, and the reason for excluding him is, as explicitly stated to be, his interest in the result, either in regard to the claim or the costs. On page 435, the opinion of Judge Washington, in Willings and Francis, vs. Consequa, Peters C. C. R., 307, is referred to, — 210 — in which he speaks of a party being excluded as a witness, and states- that the interest he has in the event of the suit, as to costs and the subject in dispute, “lies at the foundation of the rule, and when that interest is removed the objection ceases to exist.” The court also refer to the decision pronounced by Chief Justice Tindal, in Worrall vs. Jones, 7 Bing., 395, as maintaining the true and sound doctrine on-this subject. The opinions of several other distinguished jurists are noticed, and the court say: “When it appears that the party proposed to be examined is not responsible for the costs of the suit, and has no interest in the subject in dispute, and is willing to be sworn, he is not within the operation o£ the general rule.” When John Barker was called the second time as a witness he had no interest in the cause, which could be beneficially promoted by the testimony proposed to be given, and therefore we think he-was a competent witness. How far the circumstances disclosed might or might not affect his credibility before the jury we have nothing to say, because it is no part of our duty. Upon the confession of judgment by John the case was terminated in regard to him, and, in fact, he was no longer a party in the suit subsequently pending between the plaintiffs and William. If this be so, John was then clearly within the principle recognized by Greenleaf in section 355, and the other authorities on this subject. The record states the appeal to have been taken by both defendants, and the appeal bond is to the same effect,, but by agreement the record is so corrected as to- make William the only appellant. Viewing the case as- presented by this agreement, the appellees contend that the appeal must be dismissed, because there has been no summons- and severance. But there is no joint judgment so as to render, a severance necessary. On the contrary, there are two separate judgments, one by confession and the other upon verdict. They are dated on different days, and the interest does not commence oa — 211 — each at the same time, nor could there be a joint execution upon these judgments. The decision in the first bill of exceptions will be affirmed, but that in the second must be reversed. Judgment reversed and procedendo awarded.