Riddle v. Moss

¶1Present....Ml the Judges.

¶2The principal Obligor in a bond is not a witness for the -surety, in an Shond;°the principal beSesnret/for costs in case •*oiíddbeent isaiDst him.

¶3ERROR to the Circuit Court for the district of Columbia.

¶4' Thjs was an action of debt on a joint bond given by j0]m Welch as principal obligor and the Defendant Moss as his surety. The suit abated as to Welch by the return of the marshal, that he was no inhabitant of the district. The Defendant, Moss, pleaded specially certain facts in avoidance of the bond as to him alone; tip-on which issue was-joined $ and upon the, trial the Bcfendant, Moss, offered, as a -witness, the said John Welch the principal obligor who was permitted by the Court below to testify for- the Defendant, and upon his cross examination, confessed that he had made over to Moss all.his property as security to' indemnify him against the' event of this suit.

¶5The Plaintiff took a bill of exceptions, and the. verdict and judgment being against him, brought his writ of error to this Court.

¶6E. I. Lee and Jones, for the Plaintiff in error.

¶7. .Welch was clearly an interested witness. t By relieving Moss from .this suit, he would relieve his property from the lien which Moss held upon it. If the Plaintiff recovered against Moss, the latter could immediately, recover judgment against' Welch for the whole debt, together with the costs of this suit. Laws of Virg. Rev. Code. 292.-5. T. R. 578, Buckland v. Tankard.—Bull. N. P. 283—5. Bur. 2727— 3. Atk. 402.—Day. 81.

¶8*207Welch is also interested tó the1 amount of his legal fees for. attendance as a witness. It appears upon the record that he was regularly summoned and is by law entitled to demand of Moss one dollar and a quarter ■ per diem. If the Plaintiff should be defeated he will retain this to his own use, but if the Plaintiff should recover judgment he will have to refund it to Moss.

¶9C. Lee, contra.

¶10The Defence set up by Moss did not affect Welch’s liability- upon the bond. He was bound at all events. He was not a party to. this suit. Neither the verdict nor judgment could affect him. He would be obliged to pay either Riddle or Moss and it was immaterial to him which of themshould recover against him. If the Plain tiff should, be defeated by Moss, he would sue Welch arid recover judgment with costs — so that it was immaterial to him whether he paid costs to one or the other. He therefore stood indifferent as to interest. . In chancery one Defendant is a good witness for another, and it would’ be Us good a rule at law.

¶11.Courts of law have, of late, inclined to refer all cases of doubtful interest, to the credibility, rather thian to the.competency of the witness. The interest should be immediate, and direct, in order to exclude the witness. 3. Esp. Rep. 60.

¶12The statute of Virginia which gives to a surety, a rerpedy against his principal does not alter the case. Hé had an equal, remedy before.

¶13In the case of Pawling v. The United States, 4 Cranch, 219, the point was made by a bill of exceptions to the refusal of the district court of Kentucky to admit a coobligor as a witness, but was not decided; the judgment having héen reserved upon, other grounds.

¶14All the Judges being present.