
    Curtis and another vs. Monteith and others.
    Where an action, though in form ex delicto, is, in fact, founded on a joint contract of the defendants and a person offered by them as a witness, (e. g. case, against common carriers,) the rule that joint tort-feasors are not liable to contribute, does not apply, and the witness is incompetent.
    The rule, that a release by one of several joint creditors, discharges the debtor as to all, does not apply to releases by partners, inter se.
    
    Four of several partners were sued, and, on the trial, a member of the firm not sued, was offered as a witness for the defendants ; held, that a release by two of the latter, did not render the witness competent, as it still left him liable to contribution in respect to the other members of the firm.
    Trespass on the case, against the defendants, Monteith, Joy, and two others, as common carriers, tried at the Oneida circuit, October 9th, 1840, before Gridley, C. Judge. The defendants were members of a transportation company consisting of more than twelve persons, and including B. C. Brainard, .whom two ■ of them, viz. Monteith and Joy, (who defended separately,) offered as a witness on the trial. He was objected to by the plaintiffs, as interested; and the judge decided he was incompetent. Monteith and Joy then executed a release to him, “ of all liability or responsibility on his (Brainard’s) part, to them or either of them, by. reason of any damages or costs to be recovered against them or either of them, in this suit, or by reason of any costs or expenses incurred by them in prosecuting, &c., or of any claim which they, or either, &c. had, or might hereafter have against said Brainard by reason of the commencement, &c. of this suit.” Brainard was again offered by them, and objected to as interested. The judge decided that he was still incompetent, and he was excluded ; whereupon a verdict was rendered against all the defendants. The defendants, Monteith and Joy, now move for a new trial on a case.
    
      M. T. Reynolds, for defendants.
    
      J. A. Spencer, for plaintiffs.
   By the Court, Cowen, J.

The action, though in form ex delicto, was, in fact, founded on the joint contract of the defendants, and the witness stood liable to contribute, both in respect to damages and costs. The rule that one of several joint tort-feasors is not compellable to contribute does not apply.

The release by Monteith and Joy, was not effectual to discharge Brainard from his liability to contribute, in respect to the other members of the firm. To render him competent, all the partners should have released. The rule that a release by one of several joint creditors discharges the debtor as' to all, does not apply to releases by partners inter se. (Bill v. Porter, 9 Conn. Rep. 23.)

New trial denied.

DECISIONS OF CASES ARGUED AT THE SPECIALTERMS, MAY AND JUNE, 1841. 
      
      
        .) See the cases cited in Cowen & Hill’s. Notes to 1 Phill. Ev. pp. 111, 266, 1537, et seq.
      
     