Bailey v. Doak

Merrick, C. J. The present suit is brought against the defendants as the partners of one Williamson Smith, for advances made by the plaintiff to him (Williamson Smith) on the drafts of the latter, for the alleged benefit of the firm. On the trial of the case Doah offered the deposition of his co-defendant Alexander Smith to prove that he, Doah, was not a partner. The testimony was excluded and Doah has reserved his bill of exceptions. His counsel contends in this court that the testimony was admissible, because the witness was offered to testify against his interest: lor if Doah was not a partner, then Alexander Smith would be bound to the plaintiff for the whole debt instead of having a claim against his co-defendant. It is true that parties bound ex contractu in solido, do not stand in the same relation to each other that trespassers do, and it may be, in the present case, the witness has testified against his interest, yet we think his testimony was properly rejected. If Smith could testify for Doah, why could not Doak testify for Smith, and thus defeat plaintiff’s demand altogether? If the partnership assets exceed the debt, and Smith, after he shall have made payment, holds this claim over against them, it is not so clear that the witness will testify against his interest should he swear to the fact for the proof .of which he is offered. We think it the safer rule to exclude the testimony of one of several defendants against whom a prima facie case has been made out by proof and who is offered to contradict the evidence of plaintiff’s witnesses against his co-defendant. 1 Greenleaf, sec. 354; Scott v. Lloyd, 12 Peters, 149; Baudoin v. Nicholas, 12 Rob. 594; 16 L. R, 300; C. C. 2260; 12 M. 289; 2 N. S. 455. If the testimony of Alexander Smith be rejected, the evidence of plaintiff’s witnesses is uncontradicted. Three witnesses swear that Doah was a partner and his letter of September 28,1852, corroborates the testimony of the witnesses. Judgment affirmed.