delivered the opinion of the Court. The question contested at the trial was, whether the transactions given in evidence, amounted to a discharge of the joint responsibility of the two defendants as partners, and a new consignment to Dutch alone. And we think it was rightly left to the jury as a question of fact and of the intent of the parties, upon the evidence ; and the directions of the Court in point of law, and upon the application and effect of the evidence, appear to us to have been strictly correct.
The most material question calling for the decision of the Court is, whether Dutch, the defendant, who had been defaulted, was rightly rejected when offered as a witness by the plaintiffs.
Without at present discussing the question, whether in any case, or if in any, under what circumstances, a person whose name appears on the record, can be a witness, we are of opinion that this witness was incompetent and was properly rejected, on the ground of having an interest in testifying in favor of the party calling him. Looking merely to the present action, perhaps his apparent interest is the other way, because if he testifies that Matchett is liable with himself, having admitted his own liability by his default, he would enable the plaintiffs to have a joint judgment against the two; whereas, if he testifies that Matchett is not liable, then this *128action must fail, even against himself, and he would recover costs ; it being a rule, that if two are sued, and not proved to be jointly liable, the plaintiff can have no judgment against the one defaulted, or against whom a verdict is returned.* Tuttle v. Cooper, 10 Pick. 281. Therefore, by. testifying against the plaintiffs in favor of the defendant, he would defeat the action against himself and so would seem to have an interest against the plaintiffs. But it must be considered, that by defeating this action he lays the foundation for an other action against himself, in which he must be solelj charged with the whole debt; whereas, if he testifies against the defendant and in favor of the plaintiffs, he fixes the other defendant as equally liable with himself for the debt; equally liable for the whole in the first instance, and ultimately liable, prima facie, to contribution. This principle was recognised, and formed the point of the decision in Brown v. Brown, 4 Taunt. 762, which was recognised and confirmed by Mant v. Mainwaring, 8 Taunt. 139 ; S. C. 2 J. B. Moore, 9. There appearing to. be a plain interest in the witness to charge the other defendant with a proportion of the debt, and no apparent interest to counterbalance it, it appears to us that he had a preponderance of interest to testify in favor of the party calling him, and was of course incompetent.
Judgment on the verdict.
Altered by St. 1834, c. 189.