Whipple v. Stevens

Woods, J. The defendant and the witness Eames were joint and several makers of the note which is the subject of the present action. The witness is protected by the statute of limitations from any action directly in favor of the plaintiff against him, but if the present action is sustained, will be liable to the defendant for a contribution to the extent of one half the debt recovered. Such is the doctrine of Boardman v. Paige, 11 N. H. Rep. 431, and of Peaslee v. Breed, 10 N. H. Rep. 489; where the precise point was determined that if the liability of one joint promiser be continued by partial payments within six years, but the remedy of the holder of the note is barred as against the other by the statute, the maker of the note, whose liability is thus continued, may, on being compelled to pay, recover a contribution from the other. The direct tendency of this action, if it be sustained, is to fix the liability of the witness to pay one half the amount of the note, while an opposite termination of the action discharges him from all liability growing out of the note. He is, therefore, clearly interested in the result of the suit, and an incompetent witness. In Jewett v. Davis, 6 N. H. Rep. 518, the witness was rejected upon the same ground ; while in Ames v. Withington, 3 N. H. Rep. 115, and Carleton v. Whitcher, 5 N. H. Rep. 196, his admission was justified upon the mere ground of his having been released by the defendant from all claim to contribution. The witness having been improperly admitted to testify, the verdict must be set aside and a New trial granted.