¶1It is said that no objection was taken to the admissibility of the witness, at the trial, on account of *204interest in the costs; but the question was, whether judgment could in fact be rendered against the other defendants under the statute of July 4,1834, in case the defendant, Rix, should obtain a verdict. The statute is not drawn in very technical language, but we have no doubt that the legislature intended to relieve plaintiffs, in actions on contracts, from the rule by which, unless a good cause of action was shown against all the defendants who were joined in the suit, judgment could not be rendered against any one. The construction of the statute was considered in Blake vs. Ladd, (ante, 190) at this term, upon a similar question. If it shall appear, in the course of the proceedings in the suit, that any defendant is not liable, such defendant may be discharged with costs, and the action proceed against the others ; and this whether it appear by plea, or evidence on trial, or by the admission of the plaintiff. A defendant who is not liable is to be regarded as improperly joined. The reason, therefore, for excluding the witness, which existed in Pillsbury vs. Cammett, 2 N. H. Rep. 283, has ceased.
¶2If the objection that Fay was liable to costs, and thus interested, had been made at the trial, it might have been obviated by a release; and the objection, therefore, should have been taken at that time, if it was relied on. As that was not the matter considered, the defendant, Rix, ought not now to be concluded by that objection; and the action, therefore, must be sent back for another trial.
¶3The defendant, Fay, if he has no interest, may testify. If the defendant, Rix, is a surety, and has been discharged by a contract for delay, betwéen the plaintiffs and the principals, judgment may be rendered against those who are defaulted, notwithstanding this appears, and he is discharged. His discharge upon that ground would not, since the statute of 1834, relieve Fay from a judgment on his default; and he would, therefore, have no interest in sustaining the defence, in such case, if released from all liability for costs. His interest, so far as the debt is concerned, is balanced, being *205liable to the plaintiff, or to the defendant, Rix, if he, as surety, should be compelled to pay. How far he might be interested on account of the costs, without a release, it is not necessary now to consider. Whether he can be charged with the costs of a litigation between the plaintiffs and Rix, after his default, whichever party may prevail, is a question we have not settled.
¶4It may be doubted also whether he can be admitted as a witness to sustain a defence of payment, or any other defence which would show, in fact, that no judgment ought in justice to be rendered against himself, notwithstanding his default.
¶5New trial granted.