
    *Brown’s Adm’r v. Johnson. Isbell’s Ex’or v. Johnson.
    January Term, 1857,
    Richmond.
    1. Joint Bond —Surviving Obligor — Competency as Witness. — in an action on a joint bond against the personal representative of a deceased obligor, a surviving obligor is an incompetent witness for the defendant.
    2. Same-Same--Interest oi — Competency as Witness. —Where a witness is offered as competent on the ground that though interested in favor of the party offering him, his interest is equal or greater the other way, this last interest must be as direct and immediate as the former.
    3. Same — Same -Same — Same.—In an action against one of two obligors In a bond, the interest of the other arising from his liability to the defendant for contribution is more direct and immediate than bis liability as obligor in the bonds to the obligee; and he is therefore an incompetent witness for the defendant.
    4. Same — Obligors—Competency as a Witness. — If the liability of one obligor in a bond is defeated on a ground not personal to himself, (as infancy, bankruptcy or death,) the liability of all the obligors is at an end; and therefore one obligor is an incompetent witness for his co-obligor in an action on . the bond.
    5. Same — Same—Action against Personal Representative of One — Statute.—The statute, 1 Rev. Code, ch. 98, § 3, p. 359, Code, ch. 144, § 13, p. 582, in relation to joint obligations, though it gives an action against the personal representative of a. deceased joint obligor, does not affect the principle that the defeat of the remedí' against one joint obligor upon a ground not personal to himself, defeats it as to all the obligors.
    
    6. Same — Same—Two Actions Pending — Deposition.— There are two actions pending by the same plaintiff against obligors in the same bond; a deposition taken by the defendant in one of the cases, can under no circumstances, be competent evideuce for the defendant in the other.
    *7. Same — Release of Obligor — Case at Bar. — A covenant by the obligee in a bond with one of three joint obligors, thatif after judgment against all the parties the money is not paid by the other two, he will relieve him from the payment of it, is not a release, and will not bar an action on the bond against all the obligors.
    These were two actions of debt in the Circuit court of Appomattox county, the first brought in August 1853 by John Johnson, assignee of John H. Johnson, against the administrator of James Brown deceased; and the second by the same plaintiff against the executor of William Isbell deceased. Both actions were founded on the same bond, which was executed to John H. Johnson by William Is-bell as principal, and James Brown and William J. Dunn as his sureties. This bond bore date the 10th day of April 1844, and bound the obligors jointly, to pay to John H. Johnson the sum of eight hundred and eighty-seven dollars and fifty cents, with interest, on or before the 1st of April 1847. The defendants each pleaded usury; and a release by John H. Johnson, before the assignment, to their co-obligor William J. Dunn; whereby they insisted they were released.
    Upon the trial of the first named case, after the plaintiff had introduced the bond declared on, the defendant offered to introduce in evidence the deposition of Dunn, who was proved to be dead. The plaintiff objected to the evidence on the ground that Dunn was interested; and to obviate that objection the defendant offered in evidence a writing under the hands and seals of Dunn and Johnson, whereby, upon a consideration therein stated, Johnson covenants with Dunn that in the event that the bond declared on shall not be paid by the said Isbell and Brown after judgment obtained against all parties, he, the said John H. Johnson, will relieve him from the payment of the same and every cent thereof. It was admitted that this paper was genuine and in full force; and that Isbell *at the time of taking the deposition was dead leaving an estate ample to pay all his debts and liabilities, including this.
    But the court sustained the objection and excluded the deposition, on the ground that the said Dunn by reason of his interest was incompetent to testify: And ^the defendant excepted.
    On the trial of the second case the same deposition was offered in evidence under the same circumstances; the only difference in the case being that the deposition was regularly taken in the first case, when the plaintiff was present and cross-examined the witness; and it was offered as evidence in the second case though only taken in the first. It was again excluded by the court; and the defendant excepted.
    There was a verdict and judgment in both cases for the plaintiff; and the defendants each applied to this court for a supersedeas, which was allowed. They came on here to be heard together.
    The Attorney General, for the appellants.
    Garland, for the appellees.
    
      
      Bonds — Joint Obligors — Discharge of One — Effect.— Por the proposition that, if the liability of one obligor in a.bond is defeated on a ground not personal to himself (as infancy, bankruptcy or death), the liability of all the obligors is at an end, the principal case is cited and followed in Steptoe v. Read, 19 Gratt. 10, ana foot-note, where there is a collection of cases and the above proposition is discussed at length.
      See generally, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
      Code, ch. 144, § 13, p. 582. "The representative of one bound with another, either jointly or as a partner, by judgment, bond, note or otherwise, for the payment of a debt, or the performance or forbearance of an act, or for any other thing, and dying in the lifetime of the latter, may be charged in the same manner as such representative might have been charged, if those bound jointly»or -as partners had been bound severally as well as jointly, otherwise than as partners."
    
   BEE, J.

The question in these cases is whether in an action under our statute against the representative of one who was jointly bound in an obligation with another who survives, and upon an issue to the merits going to the validity of the obligation and the right of the plaintiff to recover upon it, the surviving obligor is a competent witness for the defendant.

Isbell was the principal debtor and Brown, and Dunn whose testimony was offered, were jointly bound with him as sureties. In the case first named, then, that of Johnson v. Brown’s adm’r, the witness Dunn has a direct and immediate interest to defeat the recovery against Brown’s estate, because by so doing he prevents any demand against himself on the part of Brown’s estate *for contribution of his share of the amount recovered: and if this interest be not released or in some way overcome, ke would upon general principles be clearly incompetent. Moreover, if he were in any way relieved from the debt and interest, still he would be liable to contribution for the costs, because the statute gives contribution for the party’s share of the whole amount for which the judgment or decree is rendered, which of course includes the costs. Code of Va. ch. 146, § 8, p. 588. And such a liability would render the witness incompetent. Hall v. Cecil, 6 Bing. R. 181; Jones v. Raine, 4 Rand. 386. That the statute gives the remedy only in case the principal be insolvent will not vary the case. By procuring a verdict and judgment for the cosurety, the witness puts an end to all question upon this subject, and that verdict and judgment will be evidence for or against him in any proceeding of the cosurety for contribution.

But it is said the interest of the witness is greater against the cosurety than in his favor because by procuring- a verdict and judgment for him, he makes himself liable for the whole amount of the joint obligation, whilst the effect of a verdict and judgment against him would be to subject him to contribution for a moiety, only. This might be so, if the liability in the former case were as immediate and direct as that in the latter. But it is not so. The liability in the former case arises out of -the party’s executing the joint obligation and the relation in which he stands to the obligee, whereas in the latter case the liability to contribution grows out of the judgment or decree against the cosurety itself by the terms of the statute. And to counterbalance or outweigh an interest in the witness in one way by an equal or greater in the opposite, the latter must be also direct and immediate. Eor where the one is direct and the other contingent, the former must prevail. Goodacre v. *Breame, Peake’s N. P. Cases 232; Hall v. Cecil, 6 Bing. 181, (19 Eng. C. L. R. 47). Now the interest depending upon the liability of the witness to be sued for the whole, if the action failed as to his cosurety is an uncertain and contingent interest and not immediate and direct. As said by the judges in Slegg v. Phillips, 4 Adolph. & El. 852, (31 Eng. C. L. R. 203,) the recovery might depend on many contingencies ; and the witness ‘ comes to prove the note a nullity, a defense which might be equally available for himself; and thus as said by Bord Denman, C. J., “it is not in the defendant’s mouth to say” that the witness would be benefited by the recovery against the defendant.

Under the English practice for want of a statute making the representative of one who was jointly bound with another liable to an action at law, the precise question in these cases could not occur, as the remedy at law lies only against the survivor. But a very similar question has occurred in cases where the parties were bound jointly and severally, and also in cases of partners where one has been sued without the other being joined; and it has been held in such cases that a party thus bound jointly or jointly and severally, with the defendant, was not a competent witness in his’behalf. Thus in Russell v. Blake, 2 Mann. & Grang. 374, (40 Eng. C. L. R. 418,) which was an action against one of the makers of a joint and several promissory note, another of the makers was offered as a witness for the defendant; and it was admitted both by the counsel and the court that he would be incompetent except for the act 3 & 4 W. 4, ch. 42, which however it was held did remove the objection to his competency. In a previous case against one of the makers of such note the same question had been made and had been decided against the competency of the witness who was another of the makers, without reference *to the statute of W. 4, although it had passed in the year previous to the trial: but it seems not to have been adverted to either at the bar or by the court. Slegg v. Phillips, 4 Adolph. & Ellis 852, (31 Eng. C. L. R. 203). So in cases of partners, one who is proved or admitted to be a partner of the defendant but who has not been sued, cannot be examined as a witness on the part of the defendant. Goodacre v. Breame, Peake’s N. P. Cases 232; Young v. Bairner, 1 Esp. R. 103; Cheyne v. Koops, 4 Esp. R. 110; Hall v. Cecil, 6 Bing. R. 181, (19 Eng. C. L. R. 47). So in an action against the acceptor of a bill drawn for the accommodation of the drawer, held the drawer was not a competent witness for the defendant. Jones v. Brooke, 4 Taunt. R. 464.

In these cases the witness was rejected because of the interest which he was supposed to have by reason of his liability over, and such liability for costs only was deemed sufficient to exclude him. And in Slegg v. Phillips, the same argument was pressed that was made here, that the witness had a greater interest to procure a verdict and judgment against the defendant than one in his favor; but that interest was held to be uncertain and contingent and not to counterbalance the direct interest to avoid contribution.

In this view, therefore, according to the authorities, I think Dunn was not a competent witness for the defendant in the case of Johnson v. Brown’s adm’r: andas to the case of Johnson v. Isbell’s ex’or, I think it was a sufficient reason for rejecting his deposition that it was not taken in that case but in the other; and that Johnson had the opportunity to cross-examine the witness when it was taken does not remove the objection. Eor it could not have been used by Johnson against Isbell’s ex’or, and therefore for want of mutuality could not be used by the latter against the former: as a man who cannot be prejudiced by a deposition, *or proceeding in a suit shall never receive any advantage from it. Gilb. Ev. 55; 1 Stark. (Phil. ed. 1830,) p. 264;Hard. 472; Paynes v. Coles, 1 Munf. 373, 394; Chapmans v. Chapman, Id. 393, 403. But there is another and broader ground, common to both cases, upon which the objection to the testimony may be rested: and this is that the witness Dunn by procuring a verdict and judgment for the defendant was in effect protecting himself against a suit for the same cause of action. Dor the -obligation of these parties having been in its inception, joint, to enable the plaintiff to recover there must be a continuing subsisting liability on the part of the joint obligors and the representatives of those who were dead. Dor wherever several are bound jointly, if the right of action be gone or suspended as to any one for a cause not personal to him (as in case of his infancy, or bankruptcy or death,) the joint liability being at an end, the others may avail themselves of this suspension or discharge whether produced by the act of the party or by operation of law at the instance and by the act of the creditor. Thus in a case in which judgment had been recovered against two persons as partners, and suit was subsequently brought on the same cause against them and two'others as after discovered partners, held that the joint contract of all was merged in the judgment. Robertson v. Smith, 18 John. R. 459. So a judgment on a promissory note against one, was held to bar a subsequent action against him and another alleged to be a dormant partner. Ward v. Johnson, 13 Mass. R. 148. And the same doctrine is asserted in the cases of Smith v. Black, 9 Serg. & Rawle 142, and Willings v. Consequa, 1 Pet. C. C. R. 301. The case of Sheehy v. Mandeville, 6 Cranch’s R. 253, which would seem to countenance a contrary doctrine has yet not been deemed an authority controlling these . cases. See the remarks, of Judge Stanard in Ward v. Motter, 2 *Rob. R. 536, 566. So a judgment against one joint trespasser is a bar to an action against the others. Wiles v. Jackson, 2 Ken. & Munf. 355. So where the creditor takes the specialty of one partner for the debt, held that the action against an after discovered dormant partner was extinguished by the specialty. Ward v. Motter, 2 Rob. R. 536. To a similar effect is Pudsey’s Case, cited 2 Leon. 110, and Tom v. Goodrich, 2 John. R. 213. And if a verdict and judgment for the plaintiff against one of- several who are jointly bound may be admitted in evidence in an action against another as a bar, it would seem to be a necessary corollary (if the deduction be not a fortiori) that a verdict and judgment against the plaintiff in the former action upon an issue going to, the merits and ascertaining that the plaintiff never had any cause of action against that defendant, would be admissible as a bar to a subsequent action against another so jointly bound. Dor the joint obligation would clearly be at an end ás to the former, and therefore as we have seen, as to all the others. See opinion of Washington, J., in Willings v. Consequa, 1 Pet. C. C. R. 301.

That this would be so where all the parties jointly bound are in life will not perhaps be questioned, and I think our statute making the representative of a deceased party liable to an action at law will not. change the rule. The act it is true provides, that such representative may be charged in the same manner as if those jointly bound had been bound severally as well as jointly. This was however for the purpose of the remedy merely because the action against the representative must be a several action as the jugdment is de bonis, &c. ; but it does, not convert the obligation into a joint and several one for other purposes. If three or more be jointlj7 bound and one die, the action against the survivors must be against all. If one only be sued he may plead the nonjoinder of the other *survivors or take advantage of the variance; and the principle which holds all who were bound by joint obligation discharged when the joint contract is put an end to as to any one by some matter not personal to him still has its effect. The object of the statute is to save the necessity of a resort to a suit in equity, but not to take away from any party any legal defense which he might otherwise make to the action excepting from, the representative of the deceased party the legal discharge upon his death leaving others jointly bound still surviving.

As to the supposed release which is relied on,uI think it only necessary to say, that if it was a good release, it would not meet the objection of the witness’s liability to contribution : but in point of fact, it is no-release nor could it be pleaded as such by Dunn himself in bar of an action against him. To be available as such, the release-must be express and not merely a constructive release. 7 Bac. Abr. (Bouv. ed.) “Obligations” D, p. 254. This was a mere covenant on the part of Johnson, that at a future period after judgment should have been recovered against all the parties, he would relieve Dunn from the payment of the same, thus expressly negativing the .idea of any bar to an action even against Dunn.

On the whole I think the court did not err in excluding the evidence in either case and am of opinion to affirm the judgments.

The other judges concurred in the opinion of Bee, J.

Judgments affirmed.  