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firm of A. & Co., to the plaintiffs as a security for advances made to A. by the plaintiffs, it seems not to have been questioned, that the plaintiffs might call B. to prove the indorsement to the plaintiffs, although B. had been a partner in the firm of A. & Co., and had given A. authority to indorse these notes for the purpose of winding up the concerns of the partnership (a).
Where a partner is a defendant on the record, that fact alone, in the opinion of many Judges, has been an objection to his being called as witness for the plaintiff (6). In Mant v. Mainwaring, Burrough, J., is reported to have said, “ The general rule is, that no party to an action can be examined but by consent; and all the parties to the record must consent; and without such consent none can be called. In this case, the co-defendants objected to the examination of a defendant in behalf of the plaintiff, and therefore the witness is properly rejected.”. But it is be observed, that such consent has not always been thought necessary (c); and, in the leading cases on this subject, as much stress seems to have been laid on the circumstance of the witness being interested, as on that of his being a party to the record. Thus in Brown v. Brown (d), which was an action on a joint contract against two defendants, one having suffered judgment by default, it was held that he was not a competent witness for the plaintiff to prove that the other defendant was a party to the contract; for if the plaintiff should succeed he would be entitled to contribution from the co-defendant, and if the plaintiff should fail he himself would be liable to the whole demand. And the same observation is applicable to the case of Mantv. Mainwaring (e), where it was held, that a release from the plaintiff to the defendant under these circumstances would not render him a competent witness for the plaintiff.
The foregoing observations were written before the author had seen the case of Worrall v. Jones (f), which seems to settle the question. That was an action of debt on a bond condi
(a) Smith v. Winter, 4 Mees. & Welsb. 454.
(6) Dallas, J., and Burrough, J., 8 Taunt. 141 ; Abbott, C. J., 5 Barn. & Cres. 387.
(c) Norden v. Williamson, 1
Taunt. 378; Doe v. Green, 4 Esp.
(d) 4 Taunt. 752.
(f) 7 Bing. 395; 5 Moore & Pay. 241,
tioned for the payment of rent to the plaintiff, brought against
V. In an action ex contractu against one or more partners, a copartner cannot be admitted as a witness for the defendants. For he has a direct interest in defeating the action, inasmuch as in the event of its succeeding he is liable to contribution both for the money recovered and the costs (6). And he cannot be rendered competent by the provisions of the stat. 3 & 4 Will. 4, c. 42, s. 26 (c), for the reasons which will be stated hereafter (d).
And though one partner or joint contractor may have paid his share of the principal sum due, yet, if any part of the interest remains unpaid, he is directly interested as to that (e); and such direct advantage is not counterbalanced by the contin
(a) See Gilbert's Law of Evidence, 130, 4th edit.
(6) Phil. Ev.71 ; Bac. Abr. Evidence (B.); Co. Litt. 6; Young v. Bairner, 1 Esp. 103.
(c) See ante, p. 483.
(e) Slegg v. Phillips, 4 Ad. & Ell.
gency of an action being brought against him in the event of the failure of the existing action. And even if the party proposed to be examined has retired from the partnership, it is not enough to shew that the debt due to the plaintiffs whilst the defendant was a partner, has prima facie been discharged by the operation of the rule in Clayton's case; because the payments which give occasion to the application of the rule are not conclusive evidence of discharge, but evidence of appropriation only, and liable to be rebutted by other evidence (a).
The general rule is to be adhered to, although in many cases the evidence of a partner so called might in some degree tend to onerate himself. Thus, in an action of assumpsit for goods sold and delivered, the plaintiff having proved the sale of the goods to the defendant and to one J. S., who were partners in trade, Lord Kenyon held, that J. S. could not be a witness for the defendant, to prove that the goods were sold to himself, and that the defendant was not concerned in the purchase except as his servant; for, said Lord Kenyon, by discharging the defendant, he benefits himself; as otherwise he will be liable to pay a share of the costs to be recovered by the plaintiff (6). So, in an action against a part-owner for work and labour, &c., in painting a ship, to which the defendant pleaded in abatement that there were other part-owners not joined; and the plaintiff replied that the defendant had undertaken solely to pay, it was held, that the defendant could not call the master, who was also a part-owner, to prove that he ordered the work to be done (c); and generally, on the plea of abatement of the non-joinder of other joint contractors, one of the parties named in the plea is not a competent witness for the defendant (d). Again, in an action against B. to recover the price of goods sold and delivered to him, it was held clearly that A. was not a competent witness to prove that he was in partnership with B., and that the goods were delivered on the partnership
(a) Wilson v. Hirst, 4 B. & competent to prove a set-off in an Ad. 760.
action by the holder against the (6) Goodacre v. Breame, 1 Peake, drawer. Mainwaring v. Mytton, 1 175;. Hall v. Rex, 6 Bing. 181. Stark. 83. Upon the principles upon which (c) Young v. Bairner, 1 Esp. this class of cases has been decided, 103. it has been held, that the joint ac- (d) Hare v. Munn, 1 Mood. & ceptor of a bill of exchange is not Malk. 241.
account, in liquidation of a debt prerüasis due to the Erm from the seller. Probably there was no other witness, or the partnership ought to have been pleaded in atatement. The ground of the decision was, that if the seller had recovered a verdict against B., which he might have done but for the testimony of A., the latter would be liable to contribution a. In an action on a joint contract against two defendants, where one let judgment go by default, Lord Kenyon refused to admit him as a witness for the other defendant to negative the contract; for, if negatived as to one, it fails as to the other, and the plaintiff could not make use of the judgment by default against him (6). So, in an action against one of two joint-contractors, Lord Denman refused to admit the other joint-contractor to prove that the consideration for the contract was illegal; for if the contract was proved illegal as against one, it might similarly, in a subsequent action, be proved illegal as against the other, and so both might get rid of the liability altogether: and this ruling was confirmed by the Court of King's Bench c).
But where one of several defendants is deprived of all interest in the event of the action, he may be examined as a witness for the co-defendants. Thus, if upon the retirement of a partner mutual releases of all demands are executed between him and remaining partners, the retiring partner may, though the accounts between him and his late partners are still unsettled, be examined on their behalf in an action brought against them to recover a balance in which the retiring partner ested (d). So, where several persons have agreed to bear equally the expenses of a joint undertaking, not a partnership in trade-in an action brought against one of them, another of the contractors is a competent witness for the defendant if released by him, though the rest do not join in the release (e).
Again, if one of several partners, defendants, plead his bankruptcy, and the plaintiff enter a nolle prosequi as to him, he may give evidence for the other defendants (). Therefore, in
(a) Evans v. Yeatherd, 9 Moore, 272 ; 2 Bing. 133.
(6) Brown v. Fox, 1 Phil. Ev. 78.
(c) Slegg v. Phillips, 4 Ad. & Ell. 852.
(d) Wilson v. Iirst, 4 B. & Ad.
760, overruling upon this point Cheyne v. Koops, 4 Esp. 112. See Young v. Bairner, 1 Esp. 103.
(e) Duke v. Pounall, 1 Mood. & Malk. 430.
(f) 16 East, 171; Dans. & Lloyd, 215.
an action against A. and B., on a bill drawn and indorsed in the name of the firm, B. having pleaded his bankruptcy, and a nolle prosequi having been entered as to him, he was allowed, in defence of A., to give evidence that he had indorsed the bill to the plaintiff without A.'s privity, in discharge of his separate debt (a). So, where A. and B. were partners, and C. accepted an accommodation bill drawn in their name, and to an action against A. and B. the latter pleaded his bankruptcy, and a nolle prosequi was entered as to him, it was held, that as A. was, under the circumstances, barred of all claim upon B. for contribution, in the event of the plaintiff's success, B. was therefore disinterested, and might be called to prove that the bill was accepted for his own accommodation only, and not that of A. (6). So, where A. and B. were sued on a bill of exchange accepted by them while in partnership, and B. pleaded his bankruptcy and certificate, and the plaintiff entered a nolle prosequi as to him, it was held that, as A. was not only entitled but under an obligation to prove, and as the certificate was therefore a bar to any action for contribution, it followed that B., who had released his interest in the surplus of his effects, was a competent witness for A. (c). But it seems that a bankrupt partner, even after a nolle prosequi, cannot be called for the purpose of upsetting the action on a point of form; as, for instance, by disproving his partnership with other defendants at the time of the contract, the latter being really liable on the merits (d).
In the same manner, where a nolle prosequi is not entered, but a verdict is given for that defendant who pleads his bankruptcy, he may be admitted as a witness for the co-defendants. It appears, indeed, that Lord Kenyon refused to permit a verdict to be entered for a defendant, in order to obtain his evidence under such circumstances, his Lordship observing, that in case
(a) Green v. Deakin, 2 Stark. 347.
(6) Moody v. King, 2 Barn. & Cres. 558 ; 4 Dowl. & Ryl. 30. In this case the bill was drawn a day or two after the partnership had ceased as between the partners themselves, and the Court seems to have laid some stress on this cir
cumstance; but it was immaterial, as the 49 Geo. 3, c. 121, s. 8, extended to partners as well as sureties.
(c) Aflalo v. Fourdrinier, 6 Bing. 306; 3 Moore & Payne, 743.
(d) Jones v. Hunter, Dans. & Lloyd, 215.