
    Charles Scott vs. John B. Watkins, et al.
    where, by statute, the drawer and indorsers of a Jhill of exchange, are sued in a joint action, one indorser sued in the case, is not a competent witness for another indorser, sued in the same case : He is liable for the costs of the suit, and thereby disqualified.
    Where testimony is admitted in the circuit court, and excepted to, and all the testimony is not set out in the bill of exceptions, that this court may judge of the propriety of the judgment below, this court will consider of the point excepted to, and judge accordingly.
    In error, from the Kemper circuit court.
    'I'his was an action founded on a bill of exchange, drawn by-John B. Watkins, on J. Watkins, and by him accepted, payable ■on demand, in favor of Thomas Cherry, and dated May 4,1840. The bill was indorsed by Cherry to F. S. Scott, and hy him to the plaintiff, all of whom were jointly sued under the law of 1837. The defendants pleaded the general issue, and payment. At the trial in the court below, J. B. Watkins, the drawer of .the bill sued upon, and one of the defendants in the suit which was then pending, was offered as a witness, (without any release of interest) for one of the other defendants, Thomas Cherry, to prove payment of the bill sued on. “ The plaintiff objected to the introduction of Watkins to prove anything in defence of Cherry, who was his co-defendant. The court overruled the objection, and permitted the witness to testify on the part of the defence; and his testimony tended to show payment of the bill before suit was brought.” A bill of exceptions, reciting these facts, was made part of the record, but no testimony was embodied in it.
    The verdict of the jury was for the defendants, and the plaintiffs below sued out this writ of error.
    
      Howard, for plaintiff in error.
    1. The general rule is, that no party to a record can be examined as a witness, except by consent; and all the parties must consent. 4 Eng. Com. L. R. 48. 7 Crancb, 206. 14 Serg. & R. 136. Phil, on Ev. (late ed.) 69, note 122. The rule, according to the weight of authority, is one of public policy, that a party shall not be a witness, whether he is interested or not.
    2. The witness in this case was incompetent from interest. He was a party defendant, and as such was liable for the costs of the suit. The law does not regard the amount of the interest. If the Avitness is liable for the costs of the suit, it will be sufficient to exclude him, although he may stand indifferent to all other questions. 1 Phil. Ev. 69, note 103. 3 Pick. 442.
    The pleas of the general issue and payment were filed by all the defendants jointly. The witness Avas, therefore, in truth, offered to sustain his own plea of payment. The action is joint under the statute. Under no vieAv of the case-could the drawer, being a defendant to the action, be introduced to prove payment by one of the other parties, unless they had severed in their defences. Wade, etal. v. Stanton, Buckner & Co:, 6 How. 631.
    
      George S. Yerger, for defendants in error.
    This is an action of assumpsit, brought upon a bill of exchange, dated 4th day of May, 1840, and payable seventy-five days after date, for the sum of four hundred and,forty-four dollars.
    The action is against the drawer and the indorser jointly. A verdict was rendered for the defendants upon a joint plea filed by them.
    Upon a trial, (Avithout any severance), the defendant., Cherry, the' indorser, offered the defendant, Watkins, the draAver, as a Avitness for him to prove payment. He Avas objected to as incompetent, but the court admitted him, to Avliich exception Avas taken. The evidence upon the trial is not set out in the record.
    1. At common law, the drawer and indorser had to be sued separately, and in such cases the verdict and judgment not being evidence for or against the Avitness, they were competent witnesses for each other to prove payment, and indeed to prove anything, according to the best opinions. The case of Walton 
      v. Shelly, which decided that a party to a negotiable instrument would not be allowed to impeach it, by his testimony, was overruled in Jordan v. Leshbrook. But even in those states where the rule in Walton v. Shelly has been adopted, it never has been extended to any but negotiable instruments, and tljen only where they were sought to be shown to be illegal. When the party was called to prove payment, or anything which did not impeach the note, but only went to show it was discharged, the parties to it were admissible. Woodhull v. Holmes, 10 Johns. Rep. 231; White v. Kibbing, 11 Johns. Rep. 128 ; Skelding v. Warren, 15 Johns. Rep. 270; Utica Bank y. Hilliard, 5 Cowen, 153 ; Barker v. Prentiss, 6 Mass. Rep. 430; Storer v. Logan, 9 Mass. Rep. 55; Fitch v. Hill, 11 Mass. Rep. 286; 2 Cowen & Hill’s Ed. of Phillips’s Ev. note 78, page 71, all the cases are collected.
    In the above cases, the indorser, the maker, the drawer, &c. were admitted to prove payment. They are uniformly holden to be competent. Spring v. Lorat, 11 Pickering, 417, and see all cases collected, 2 Cowen & Hill’s Edition of Phillips, page 71, and 1545.
    2. If this then had been a separate action, there is no doubt the .drawer was competent to prove payment in an action against the^ indorser. Does the statute of 1S37, which compels a joint suit, alter the common law, as to the rules of evidence 1 Was it intended to deprive either party to a negotiable instrument of the right to prove the defence by one of the parties ? Unquestionably not. There is no doubt, if a joint suit is brought, the parties, by applying to the court in a reasonable time, for a severance, the court would order separate trials. But under our statute of 1837, this is unnecessary, and in such case they could be examined ; (see 1 Dev. Rep. 98), fo.r although many of the cases say a party to the record, from policy, shall not be examined as a witness except by consent, yet the true rule is now laid down in England, that whether he is a party or not, is not the question, but whether he has an interest. Jones v. Worrall, 20 Common Law Reports, 177. Bradley v. Neill, 16 Pickering, 501. 2 Hill’s N. Y. Reports, 131. l 'Dev. Rep. 98. If he is liable for costs,'he is interested ; bat if his liability is fixed, as when he confesses his own liability or judgment by default is against him, he is competent; so where the maker is released by the indorser, or where the indorser exempts his co-defendant, but not himself.
    In Starkweather v. Matthews, the maker and indorser were jointly sued, the latter called the maker, who was sued with him, to prove the note usurious. He.released him from all cost and liability. It was held by the court, that he was a competent witness. 2 Hill N. Y. Rep. 131. The case does not show whether there was a severance or not, but from the report of the case, I would judge the case was being tried against both. In the case in North Carolina, 1 Dev. 98, the court ordered separate trials ; both courts, however, decide that, being competent at common law, the fact of joining them will not render the \yitness incompetent. So in Massachusetts, 16 Pick. 501.
    Why should not the practice be as decided in the New York case, where both are tried ? The jury by law may find against such as are liable, and find in favor of such as are not liable. See sec. 35, act of 1837, H. & H. 596.
    The true construction of the act of 1837, requires the practice to be as I have stated it. By that law, (see section 41, H. & H. page 596,) the defendants cannot sever in their pleas, they are compelled to plead jointly. By the 35th section, the plea of non assumpsit, and no other, shall be received, in suits brought under the act; and by the same section, the jury are required to render a verdict against part of the defendants, and in favor of the others, if the evidence before them require such a verdict, and the court shall enter up the proper judgment, &c. &c.
    Now as they were competent witnesses at common law, for each other upon separate trials, the statute, by compelling a joint action, did not intend to do away the rules of evidence. That, the case in North Carolina, and in New York both decide. If this be so, and they are both sued, and both compelled by our statute to plead jointly, upon what principle shall the evidence of one be not received for the other, if he has no interest 1
    His being a party to the record does not exclude him. All the modern cases in England prove this. See cases cited 20 Com. Law Rep. 177, and the case in 2 Hill and 16 Pickering, before cited. The case above cited from 2 Hill, being the latest New York case, proves this also, notwithstanding some previous decisions in that state. The case from North Carolina also proves the same thing. The modern rule is not whether he is a party, but whether he is interested. If he is a party, and his testimony will exempt him from costs, he is of course interested. If he is a party and his evidence will not exempt him, but throw the. whole costs upon himself, he is competent.
    In England, when two are sued on a joint cause of action, one cannot be a witness for the other; because, by preventing a recovery against one, he prevents it against himself, as there must be a joint recovery against all sued, on a joint cause of action, or there can be judgment against neither. He is, therefore, directly interested.
    But here he has no such interest; for the statute authorizes a judgment against him, although the other parties may be discharged. Therefore, if the drawer gives evidence to discharge the indorser, who is sued with him, his evidence is against himself, as it will only benefit his co-defendant; and, if he is discharged, the drawer is liable for the whole costs of the action, unless he can prove, by other testimony than his own, that he is not liable at all.
    If he is called to fix the liability of his co-defendant, then, possibly, he may be interested; but here he is called to prove the indorser jointly sued with him is not liable. How is he interested % The verdict and judgment in favor of the indorser are no evidence, for or against him. A verdict in favor of the indorser will not discharge him. His own evidence, to prove the demand paid, although evidence for his co-defendant, and will authorize a verdict for his co-defendant, is not evidence for him, and will not authorize a verdict for him; and if the jury so find, the court, as to him, would grant a new trial, and let the judgment stand, as to the other.
    He does not, by his evidence, exempt himself from costs ; because he is liable for the whole costs, if the other is discharged, unless he obtains a verdict by other evidence than his own, and then neither the witness nor the co-defendant would be liable for any. In no point of view has he any interest.
    When his testimony is given, if there is no proof of payment but his own, the jury must, under the instructions of the court, find for his co-defendant, but against him, unless there is other evidence which shows he is discharged.
    In this case, the jury found a verdict for both defendants ; but the record does not set out the testimony on the trial. The court must therefore'presume, there was other testimony to sustain the verdict. Fifty other witnesses may have been examined, and the jury found their verdict on the whole evidence.
    If the verdict for both was founded on the evidence alone of the drawer, the court below would have set it aside, as to the drawer; and if it refused to do so, by taking a bill of exceptions, and setting out all the testimony, this court would do so. But the record is silent; the testimony on the trial is not set out; an exception is merely taken, during the trial, to the competency of one witness. If he was competent for the. purpose introduced, the judgment cannot be reversed. The record expressly shows he was only introduced as a witness for the in-dorser. He was only admitted a witness for the indorser, by the court; for that ptrrpose it was proper, and the court cannot presume that there was no other testimony in the cause, or that the court permitted him to testify for himself, when the record expressly shows he was only permitted to testify for his co-defendant.
    The case of Wade v. Staunton & Buckner, 5 Plow. Rep. 631, is an authority against my position. But that case was not well considered; the point was not argued; and the court decided it, and the counsel argued it, on the common law rule, which applied to joint defendants, without citing or adverting to the statute, which altered the common law.
    It was admitted in that case, if the witness was not interested, he was competent; but it was erroneously supposed his evidence necessarily operated in his own favor, whereas, under the act of 1837, it was directly against him.
    The mistake of the court (see page 634) was, in supposing the testimony of the witness would discharge himself. The facts he proved would undoubtedly discharge him, if they were evidence for him; but if they were not evidence for him, he was not discharged. Now it is not pretended, in any of the cases, that the evidence of the maker that the note was paid, was evidence for him; they were evidence for another party.
    Besides, if the facts deposed to by a maker, are no evidence whatever for him, upon what principle is he discharged by such evidence 1
    When this point was decided in 1841, I was then decidedly of opinion it Was wrong; but not being engaged in it, of course I had nothing to say about it.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was writ of error to Kemper county.

The action was instituted under the law of 1837, compelling a plaintiff to sue the drawers and indorsers of bills of exchange and promissory notes, living and resident in the state, in the same action.

There was a plea of payment joined in by all the defendants. The indorser tendered his co-defendant, the drawer, as a witness, to prove his payment of the bill to the plaintiff before suit brought. His competency to testify was objected to by the plaintiff below on the trial, but he was admitted by the court, and a verdict was rendered for all the defendants. The plaintiff embodied his objection in a bill of exceptions. The record gives us no further light upon the trial as to whether the defendants, or either of them, adduced any more or other evidence. If the plea of payment had not been proved, nor other cpnclu--sive evidence for defendants introduced, there must have been a verdict for the plaintiff, which would have involved the drawer, as well as his co-defendants, in a judgment for the amount of the bill, and also for the costs of suit. The rule is, that when all the evidence in the case is not included in the record, in the absence of which, this court cannot otherwise determine upon the propriety of the judgment, it will consider the bare point excepted to below, and adjudge accordingly.

The proffered witness was interested to the extent of the costs, under any view, as the record shows, and the authorities combine in approving the exclusion of any witness who is so interested, however small the amount of that interest. We think the witness was erroneously permitted to testify.

Judgment must be reversed, and a new trial granted by the circuit court of Kemper county.  