The first question to be determined, is whether the referee properly excluded the evidence offered by the witness Grannis, one of the defendants. And it seems to me that the evidence was properly excluded, within the principle of the case of Dean v. Thornton and Dutton, (3 Kern. 266.) That was an action brought for entering the plaintiff’s close and cutting down and carrying away timber. The cutting and carrying away the timber, by the defendant, was proved. Dutton was sworn as a witness for Thornton, who offered to prove by him the sale of the timber in question to him, Thornton. The plaintiff’s counsel objected to his competency to prove this fact, and the referee before *126whom the cause was tried, sustained the objection. The defendant Thornton offered Dutton to prove the same fact, and the same objection and ruling were had. The referee found in favor of the plaintiff, against both defendants, upon which judgment was rendered, which was affirmed by the supreme court. On appeal to the court of appeals, the judgment of the supreme court was affirmed. I am unable to distinguish that case, in respect to the present question, from this one. In the matter offered to be proved in both cases, the defendants were jointly interested, because the proof which would exonerate one, would necessarily discharge the other, provided it were received on behalf of both.
The next question is, whether the facts proved on the trial, and found by the referee, established that the notes upon which the actions were brought, were obtained by Bedfield, by duress, so as to avoid the notes in his hands. My opinion is that they were so obtained.
The referee reports that Bedfield had no reason to believe that Grannis was about to depart with the intent stated in the affidavit. He might have added, with entire propriety, that Bedfield did not so believe; as upon the evidence there was no pretense for such an allegation, and he could not have entertained such belief without stultifying himself, which the law will not permit him to do.
Although the arrest was according to the forms of the law of the country where it was made, and for a debt justly due from Grannis and Swan to Bedfield, these circumstances did not justify Bedfield in procuring the arrest. The arrest was made regular and lawful in form by the perjury of Bed-field, and he-should not be permitted to derive any benefit from it. The rule is, that where there is an arrest for improper purposes, without a just cause; or, where there is an arrest for a just cause, but without lawful authority; or, where there is an arrest for a just cause and under lawful authority, for unlawful purposes, it may be construed a duress. *127(Richardson v. Duncan, 3 New Hamp. R. 508. Watkins v. Baird, 6 Mass. R. 506.)
[Monroe General Term, December 7, 1857.The defendant Brown, being surety on the note, may avail himself of the duress of his principal. (Thompson v. Lockwood, 15 John. 256.) The judgments should therefore be reversed and new trials ordered, with costs to abide the event.
Ordered accordingly.
Johnson, T. R. Strong and Welles, Justices.']