
    Charles Scott vs. Josiah Watkins.
    In a suit against the acceptor of a bill of exchange, the drawer was offered as a witness for the defendant, and on his voir dire, stated that he was a partner with the defendant in the bill sued on; and hereupon the defendant executed to him a release of interest; Held, that the drawer was not thereby rendered a competent witness.
    A partner is not a competent witness for his copartner, unless they mutually execute general releases to and from each other.
    In error from the Kemper county circuit court.
    . The plaintiff in error sued the defendant in error as acceptor of a bill of exchange. On the trial the defendant offered as a witness, John B. Watkins, the drawer of the bill of exchange sued upon, to testify on his behalf. Upon being examined on his voir dire, he stated that the bill was drawn by him individually, and accepted by the defendant individually, yet that it was a joint and partnership affair between him and the defendant, and that they were equally and jointly liable as between themselves to pay the bill; whereupon the defendant ■'executed and delivered to the witness a release in the follpwing words, to wit; “Know all men by these presents, that I Josiah Watkins, in consideration of one dollar in hand received, do hereby release unto John B. Watkins, all right to contribution on account of a bill of exchange for four hundred and forty-four dollars, drawn by said John B. Watkins, in favor of Thomas Cherry, and by me accepted, dated May 4, 1840, and due twenty-five days after date, hereby fully discharging the said • John B. W atkins from all liability in said bill to me of whatsoever nature the same may be in law or equity. In testimony whereof I have hereunto set my hand and seal, this 27th day of October 1842.
    
      “ Josiah Watkins.” (Seal.)
    The witness accepted the release, and was again offered for examination, and was again objected to; but the court overruled the objection, and permitted him to testify. This was made the subject of exception, and is now assigned for error.
    The proof was not set out in the bill of exceptions.
    Howard, for plaintiff in error.
    The partner could not be made a witness by the release of the defendant. Such release did not prevent the verdict from increasing the partnership fund. A verdict in favor of the defendant increased the partnership fund to that extent, and the witness was jointly interested in the amount of that increase, notwithstanding the execution of the release. In fact, the release only had a partial effect, (1 McCord, 304,) inasmuch as its effect can only be to release the witness from contribution in cas.e of a verdict against'the defendant. But this did not prevent the witness from maintaining his action against the defendant for a share of the increase of the partnership fund produced by escaping the payment of this partnership debt, and that, too, in all probability, by the testimony of this very witness. It is obvious, the interest of the witness was not discharged because he did not also execute or release to the defendant, exonerating him from all contribution to the witness, out of the increase of the partnership fund, produced by the result of a verdict in favor of the partnership. In such cases, mutual releases are clearly necessary. 24 Eng. Com. L. Rep. 156. 2 Penn. Rep. 138. 2 Watts, 347, 361.
    2. It is a familiar rule of evidence, that, where the effect of a witness’ testimony will be to create, increase, or avoid, the diminution of a fund in which he has an interest, he is incompetent. 3 Phil. Ev. 1539, note 108. 2 lb. 114, Carter v. Graves, decided at a former term of this court.
    
      George S. Yerger, for defendant in error.
    The defendant below, Watkins, was sued as acceptor of a bill drawn by J. B. Watkins. Upon the trial J. B. Watkins was offered as a witness by the defendant, to prove payment. He was objected to. He stated that although he was the drawer of the bill, and the defendant the acceptor, it was for, and on account of a partnership debt, (they being partners, or having been partners). The defendant then released the witness from all liability to contribute towards payment of said bill, or any part of it, and from all liability whatever. The court, after the execution of the release, admitted the witness to testify, to which exception was taken.
    1. When one partner is sued on a partnership transaction or liability, another partner, on being released by the one sued, from all liability or contribution, is a competent witness. This point has been decided in the following cases. Leroy, Bayard & Co. v. Johnston, 2 Peters’s Rep. 186; Lafferty v. DeMott, 21 Wendell, 136, 2 Wendell’s Rep. 527; Carlton v. Whetcher, 3 New Hamp. 196; Wilson v. Smith, 5 Yerger, 379, 388; lb. 408; Jones v. Pritchard, 2 Meeson & Wei. 199.
    So one partner may prove he made the note for his individual benefit, without the knowledge of his copartner. 2 Har. & Gill, 97. Originally the law was supposed to be different, but the modern rule is not to exclude the witness, unless his interest is direct and positive, and the circumstance of his being a partner, joint drawer, indorser, &c., even a party, will not exclude him.
    There are some eases opposed to these I have cited. 2 Penn. Rep. 138 ; 2 Wajts Rep. 347, 357. In these cases it is supposed mutual releases are necessary, or, that, notwithstanding the release of contribution, by one, yet a judgment for him, would increase the partnership fund, or rather a judgment against him would decrease it. These decisions may be law in Pennsylvania, because by statute, the judgment against one partner, the other not being taken, has the same effect as a judgment against both. (See 2 Wharton’s Rep. 562.)
    It is a mistake to suppose, after the release, the partnership fund, will be increased or diminished by the result of the case. If judgment goes against the partner, at law, it is the same as judgment on an individual liability. Partnership property may be seized, but only his interest, not that of his copartner, can be sold. What would that interest be ? The surplus after payment of partnership debts. In order to seize and sell the interest of both partners, there must be a joint judgment. (Story on Partnership, sec. 260'.) The partnership liability by our law is joint and several. By suing one, without joining the rest, the creditor elects to make it his several debt, and a judgment against him is the same in effect under out law, as if it were originally his separate debt. As between the creditor and himself it is his separate debt; but if he pays it to the creditor, he may have contribution against his copartner.
    After the judgment, it is no longer a partnership debt — the creditor has severed it, and the interest of the judgment debtor in the partnership property can only be sold, subject to the prior rights and liens of the other parties, and the joint creditors therein. (Story on Partnership, sec. 263.) In taking the accounts of the partnership, the debt would not be considered as a partnership debt. Indeed it has been decided, that an action against one of several joint debtors or partners, if the creditor fails, is a discharge of those not sued; ’if he recovers against some, it is a discharge of those not sued. Robertson v. Smith, 18 Johns. Rep. 456. Gibbs v. Bryant, 1 Pickering, 118. Perry v. Martin, 4 Johns. Ch. Rep. 566. I am inclined, however, to think a recovery against one partner, in this state, will not discharge the other. But it is the separate debt of each, after such recovery. A satisfaction of one judgment would be a satisfaction of both judgments : See Sheely v. Mandeville, 6 Cranch, 253, as in cases of separate judgments against several parties for the same debt.
    In the case in 24 En. C. Law Rep. 156, there were mutual releases, but there was no decision that it was necessary.
   Mr. Justice Thacheii,

delivered the opinion of the court.

This suit was instituted in the circuit court of Kemper county, from the judgment of which court, it has been brought here by writ of error.

The action was brought against the acceptor of a bill of exchange, who sought to introduce as a witness, in his behalf, the drawer of the same bill. When put on voir dire, the drawer stated that he was in fact bound jointly with the acceptor, as a partner, to pay the bill of exchange sued upon. The defendant then executed and delivered to the drawer, a release of all claims upon him for contribution on account of said bill, and a discharge of liability to him, the acceptor, on its account. He was thereupon admitted by the court below to testify, and a verdict was found for the defendant. The record does not contain a statement of the full evidence introduced upon the trial, and the admission of the drawer as a witness, is the sole ground of error taken.

The question, under these circumstances is, whether the interest of a partner is entirely removed by the release of his copartner 1

We think the witness should have given his copartner, the' defendant, a release of all demands. It does not appear but that the firm owed other debts, besides the one sued upon, and if a verdict were obtained against the defendant, it might diminish, pro tanto, the assets of the partnership, which constitute the security which the witness had against the debts due from the firm. 4 Barn. & Adol. 156. In this way, there may be a decrease of the partnership fund, in which the witness has an interest paramount to the release.

The ends of justice demand that courts should guard strictly against the admission of interested witnesses, and we are inclined to the English rule, which required general releases front) the defendant to the witness, and from the witness to defendant, to restore competency.

Judgment must be reversed, and a new trial granted.  