The object of the agreement required to be entered into by tho judge of the County Court of Mont*461gomery County was, to exempt tlie claims now insisted on from the influence of the verdict and judgment rendered in that case. The plaintiffs in that court had sued upon them, and the jury, under the ruling of the judge, had rejected them; and, but for the agreement, it was supposed that this judgment would constitute an effectual bar to their subsequent recovery.
It is true, the court seemed to be of opinion that the claims so rejected under the decision could only be recoverable in equity; but it was not’the object to deny to the parties the right of recovery upon them, should it turn out the court was mistaken. Indeed, there was stronger reason for reserving this right to them in that event, as this erroneous decision had most probably prevented a recovery in the County Court.
We think it may well admit of question, whether the letter of the agreement does not exempt these claims, when asserted in any proper forum, from the influence of the former judgment. It is not to be used as a bar “in any future settlement in chancery, or bill filed for an account between said parties, or between the owners of the steaniboat Formosa, or any transaction between said defendants and W. S. Hoyt and Clinton Ford, or used or pleaded in any manner to bar the claim of said plaintiffs or Waite S. Hoyt and Clinton Ford, for an account and settlement in relation to said claims,” &c. If the bar was to be effectual every where else except in chancery, then a large portion of the agreement is redundant and unmeaning.
But conceding that the construction which we place upon it is not in strict accordance with the letter, we feel satisfied that it conforms to the intent and spirit of the order. We cannot suppose that the court intended to trifle with the rights of the plaintiffs ; on the contrary, the fact that such an order was made, ivas a concession on the part of the court that the parties plaintiff had rights which would bo injuriously affected by the judgment as it then stood, and it was for their protection that the order was made. Now, to place upon it such construction as would make the court virtually say to the plaintiffs, ‘ True, you have rights which I am disposed to protect from the influence of this judgment, and it shall not be pleaded or used as a bar in any manner against you, provided you assert the claims in a court of equity, which has no jurisdiction to afford you relief ; but as to all other courts which may take cognizance of *462such demands, this judgment shall remain an effectual bar,’ would be to make the court the minister of palpable injustice, and to render the order nugatory and worthless. It is, however, our duty to give the order such construction as will make it avail, and as will effect the obvious design of the judge who required it to be made, and such as will not place him in the odious position of tantalizing the plaintiffs by an admission and yet a denial of their rights, a position which we are sure cannot with any propriety be assigned him.
But, it is asked, what motives could Murphy & Brack have had in consenting to the terms of the order thus understood 1 They may have had very substantial reasons for preferring the conditions imposed by the court to opening the judgment for a new trial. Other matters besides these now in litigation were concluded by that judgment, and these would have been re-opened. Be this, however, as it may, it is certain they gained time by acceding to the order, and this may have constituted a sufficient inducement.
2. We think the witness Brack was an incompetent witness. The party offering him concedes that he (the witness) is bound for the demands, and the object was to prove that Murphy was bound with him ; in other words, that the debt claimed “ was due from the firm of Murphy & Brack at the time of the dissolution of that firm, and that it was acknowledged to be due ,• also to prove tho amount of the debt, and what it was for.”
If Brack was bound for it, he vras interested directly in proving it to be a partnership demand; for, in that event, he not only made Murphy liable also, but, by virtue of the agreement between him and Murphy, by which the latter bound himself to pay all the partnership debts, Murphy would have to pay the whole, and thus the demand would be extinguished as to Brack. We see nothing in the facts of the case as now presented which takes it, upon this point, without the influence of the previous decision of it in 18 Ala. R. 320; see also Aston v. Jemison, 17 Ala. R. 62, and cases there cited.
Let the judgment be reversed, and the cause remanded.