majority">

The opinion of the court was delivered by

Redfield, J.

It is claimed by the defendants, Solomon Downer and Worcester Downer, in this ease, that there is a fatal variance between the note produced in evidence and the declaration. It does not seem to us, that there is any such variance. The declaration describes the note as signed “ Downer & Dana” by mistake for S. & W. Downer & Co., to whom the credit was given, and upon whose behalf the contract was executed, and to whose use the consideration went. The note, when produced, is signed “ Downer &■ Dana.” Whether this was intended to have been S. & W. Downer & Co., or not, is matter of evidence for the jury, and in regard to which there was no controversy, if the evidence were competent to go to the jury. There could therefore be no variance.

Whether this count in the declaration is defective, and so, there being a general verdict, judgment should be arrested, is a question arising upon the motion in arrest of judgment, and may properly be; considered here. It seems to us, that, in a case like the one alleged, there must be some mode of recovering upon the note against the defendants really intended to be bound by it. Where a silent partner is discovered, it is every day’s practice to sustain actions againsi him and the ostensible partner, upon bills and notes drawn in the name of the one who transacted the business, alleging such to be the name, in which the partners transacted the business of the co-partnership. Why it is different, in principle, when the- name if varied from the true name, by mistake, or caprice, we cannot we1' comprehend. The present rule of law is, we apprehend, that, if on( execute a bill, note, or other writing, by an assumed name, or ai alias dictus, he may nevertheless be made liable upon the note, o> the note may be wholly disregarded, if it be fatally defective, whici *467we think this is not, and so a recovery be had upon a count for the consideration, as in the present case. So that we think there is no defect in the declaration.

In regard to the competency of Dana to testify, under the circumstances, there is perhaps more ground of hesitation, because the question is novel, in the form in which it arises. But we perceive no objection to admitting the discharge in bankruptcy, even upon the general issue, when offered by the plaintiff. The rule of pleading, requiring such matters to be specially pleaded, is intended merely to prevent surprise, upon the part of the plaintiff, by having such defences unexpectedly presented. But if such a defence were offered, even by the defendant himself, upon the general issue, and not objected to by the plaintiff, it would be expected the court would receive it, and it would be their duty to do so, notwithstanding any objection on the part of a joint defendant.

In regard to the objection to the testimony of the witness, it is undoubtedly true, that he was, at the time he gave his testimony, a party to the suit. But we do not think this, of itself, any valid objection to the competency of a witness, if he be himself willing to testify. Nor do we think he can be excluded, upon the ground of objection being made by other joint defendants. f No question would ever arise, in any such case, unless objection were made by some one. Such a case would never be brought to the consideration of the court, or reported, unless some one were objecting to the testimony. And all the cases reported in the English books, and they are numerous, where the parties to a suit have, under circumstances, been permitted to testify, must have arisen upon objections from some quarter. But these cases all suppose that the witness is himself consenting to give evidence. The party offering the testimony, whether consisting of one or more persons, is, in contemplation of law, a unit, an abstraction, and cannot, at the same instant, do a thing and object to it. The objection must of course come from some one having an interest, antagonist to that of the party calling the witness ; and this will most commonly be some co-party. This subject is, perhaps, sufficiently explained, in Sargeont v. Sargeant et al., 18 Vt. 371-378, 379. v We think the fact, that the witness was, at the time of testifying, a party to the suit, and objected to by his co-defendants, was no sufficient objection to his testimony. ^

*468The only ground of serious doubt, in regard to this part of the case, seems to be in regard to the interest of the witness. It seems to us very doubtful, whether, upon the whole testimony, aside from the discharge in bankruptcy, the witness could be fairly said to have any preponderance of interest in favor of the plaintiff. He bought the goods for the partnership, and upon their credit, and they went into the concern, but, on the settlement of the concern, he assumed the debt. He would therefore be bound to indemnify the partnership against the debt and the cost, in case of a recovery against them, — they standing merely in the light of sureties. But if this suit be defeated, the witness only remains liable for the debt, and wholly escapes the cost of this suit, which falls upon the plaintiff.

It seems, therefore, to us, that Dana, upon the whole testimony, is interested, so far as this suit is concerned, in favor of the defendants.

This being the case, the discharge in bankruptcy could only remove all interest, or leave it where it is; or else, according to the decision of this court in Wells v. Mace et al., 17 Vt. 503, it will exonerate the bankrupt from his original obligation to pay the debt himself, but leave him liable to indemnify his sureties, in case of payment by them. In either view, it does not seem to us, that the discharge in bankruptcy will tend in any sense to increase the interest of the witness in favor of the plaintiff’s side of the case.

There does not seem to us to be any testimony in the case, tending to show, that Dana did not fully assent to the course pursued by the plaintiff, in putting in the discharge in bankruptcy, as well upon the merits of the case, as upon the question of the competency of the witness.

The judgment of the county court is therefore affirmed.

Citation profile

Relationships

How this case has been treated — in progress