
    Knight v. Lauve et al.
    In an action against part of the owners of a steamer, who, as commercial partners, were bound in solido, on a note, given for materials furnished for her equipment, which recites that “ the steamer and owners promise to pay, &c.,” and was signed by two of the partners who acted as agents for the rest, the latter will not be incompetent as witnesses for the plaintiff on the ground of interest in the event of the suit.
    from the Fourth District Court of New Orleans, Strawbridge, J*
    
      T. R. Wolfe, for the plaintiff.
    
      Sigur and Bonfond, for the appellants.
   The judgment of the court was pronounced by

Slidell, J.

This suit is upon a note signed by Dimitry and Plaisent, by which “ the steamer Belle Creole and owners promise to pay;" and also upon an account for materials furnished for the equipment of the steamer, in consideration of which the note was given. The articles of partnership, and the other matters established by the evidence in the case of McAlpin v. Lauve, recently decided, 2 Ann. R. p. 1015, are also presented in the present case; and the point of difference between that case and this is that, in McAlpin’s case, the furnishing of the materials for the steamer, through the partners and agents, Dimitry and Plaisent was established by witnesses as to whose competency there was no objection ; whereas, in the present case, Dimitry is the ivitness upon that fact, and a bill of exceptions was taken by the defendants to his competency, upon the ground that he had a direct interest in the event of this suit.

The case of McIlvane v. Franklin, 2 Ann. Rep. p. 622, was a case approaching this: we there held Routh, the partner in a plantation, to be an incompetent witness. In that case it is to be observed, that the sate of the goods Was made to Routh, in Rouih’s name, and he Was offered as a witness, to prove the partnership. In the pre'sent case, tirei partnership is established by evidence entirely independent of Dimitry’s testimony; and on the face of the note, Dimitry and Plaiseiit do riot profess to bind thetaselies alone, but all the owners of the steamer.

Before expressing our opinion as to the competency of Dimitry, it is proper to notice tWo cases upon which the defendánts rely, rihd to point out the difference which exists between them and the cases before us. In Shiras v. Morris, 8 Cowen, 60, it was held, that án agent Who had borrowed money, and drawn tt draft on his principal to repay the lender, cannot, Upon a refusal by the drawee to accept, and a suit against him for money advanced to his use, be called to prove his liability to reimburse the plaintiff. In that case there Was nothing on' the face of the bill to show that he was acting in a representative capacity; nor Was there, independently of his own testimony, anything to show that the plaintiff advanced the money on the credit tif the defendant, and not Upon the individual credit of the witness. It seems to have been considered by the court, a Casd in which the witness’ own responsibility was involved in the result of the cause, so that he would be responsible if the plaintiff failed.

In Sage v. Sherman, 25 Wendell, 430, the witness called by the plaintiff was the agent of the defendants to purchase lands. The suit was brought on drafts drawn by the witness in his own name, and a note signed by him as agent, but not giving the names of his principals. The relation of the witness to the defendants, Was that of agent merely. There was no partnership. It Was considered that the witness, being himself prima facie liable for the debt, was called to fix this debt upon the defendants, and thus to create a new liability, by means of which he would become discharged. For it was said by the court that if the plaintiff adopted his acts as agent, and recovered against the defendants, he could not afterwards resort to him. It was upon this reasoning we find the court acted in Hickling v. Fitch, 1 Miles’ Rep. 209. In that case, one Booth, a broker, bought stock in his own name, his principal, Fitch, being undisclosed and unknown to the seller at the time of the transaction. The seller sued Fitch, and offered the broker as a witness, but he was held incompetent, the court saying that, having bought in his own name, he was primd facie liable to an action by the plaintiff; and that in such an action, a verdict against Filch could be given in evidence by Booth to show that the plaintiff had adopted Fitch as the real party, and would preclude a recovery against Booth.

We have looked into a great many adjudged cases bearing upon the present question, and find them conflieting — either side may be defended by authorities of great respectability; and the subject, by reason of this conflict and its own inherent difficulty, is perplexing. In view of this uncertainty, we believe the safer course is, to sustain the competency of the witness in the present case. In all cases of doubtful competency the attainment of truth is, we believe, more likely to be accomplished by the admission, than the exclusion, of evidence, taking care of course to make due allowance in estimating the credibility of the witnesses. In adopting this course on the present occasion, there is one consideration suggested by a perusal of the authorities, which has impressed us very forcibly, and deserves particular notice. It is, that a judgment against these defendants is no bar to a future action by the plaintiff’ agaiust Dimitry for llie whole debt. Tt is trim that, if tlm plaintiff can obtain satisfaetion after j udgment from the defendants, Dimitry will be'disoharged'sofaras-the plaintiff is concerned. But' the propability that, in consequence'of the judgment, the plaintiff would seek and obtain satisfaction from the defendants rather than the witness, may be considered as not amounting to that legal certainty which may reasonably be required to justify disqualification. It is also tobe observed that, if these defendants are compelled to pay, Dimitry, on his'own evidence, is answerable to them- for his- contributivo share ; and further,-that the evidence he has given-in this'cause,-is sufficient-to:enable the plaintiff to get a judgment against him for the whole debt. We are therefore of opinion; that the court below did not err in admitting Dimitry as a witness ; and the only point which remains to be considered witli regard to his testimony, is its credibility. We find nothing in the case to cast a suspicion, upon it. On the contrary, the other evidence corroborates and harmonizes with it. The case consequently stands upon the same footing as that of McAlpin v. Lame; and the reasons for affirmance there given, are applicable to the present case.

Judgment affirmed.  