The opinion of the court was delivered by
Hall, J.The only question in the case relates to the competency of a witness. To 'exclude the witness, the defendant offered to prove, “ that the work and labor declared for were performed on a contract made by the defendant with the plaintiff and witness jointly; ” and we think the testimony should have been admitted.
The legal intendment of the facts offered to be proved must be taken to be, that the plaintiff- and defendant were jointly interested in the labor declared for, and consequently in the sum sought to be recovered. The witness was offered in support of the case generally, under the issue of non assumpsit; and, upon the state.of facts proposed to be shown, he would be directly interested to increase the *59amount of the recovery, inasmuch as he would be entitled to a share of whatever was obtained of the defendant. The plaintiff, if he recovered, would hold the share of the witness in the avails of the judgment in trust for him ; and the record of this suit would be good evidence for the witness in a suit against the plaintiff, to show both the fact of the recovery and its amount.
In case the plaintiff in this suit failed to recover, we do not see why the witness would not, prima facie, at least, be holden to contribute to the plaintiff towards the payment of the costs ; in which case the record in this suit would be evidence of their recovery and amount. Jackson v. Galloway, 8 C. & P. 480. 2 Stark. Ev. 484-5. 1 Greenl. Ev. §§ 390, 427. Pike v. Blake, 8 Vt. 400. Pinney v. Bugbee, 13 Vt. 623.
The witness having been admitted, notwithstanding the offer to show his interest, we think there is error in the judgment of the county court, and that a new trial should be granted.