Chandler v. Brainard

Per Curiam.

The defendant objects that the giving of the note in suit was not such a payment of the first note as will enable the plaintiffs to maintain an action for contribution. The general rule in this commonwealth is, that the taking of a negotiable note for a debt, is a payment; and here it appears that the second note was received in full satisfaction of the previous note. The case of Cornwall v. Gould, 4 Pick. 444, is decisive on this point, against the defendant.

It is further objected, that the plaintiffs ought to have brought several actions. The general principle is, that where there is a joint interest in the plaintiffs, the action should be joint. Here the second note was joint and several, but it was received on the joint credit of the four plaintiffs ; and the case cannot be distinguished from that of Osborne v. Harper, 5 East, 225. This objection therefore is not sustained.

Another objection, and which deserves more consideration, is the one relating to the deposition. It appears that the magistrate by whom the deposition was taken, was the son-in-law of one of the plaintiffs ; and it is contended on behalf of the defendant, that one who is related to a party by consanguinity or affinity, is disqualified to act in such a case. On the one side it is said, that the act of the magistrate, in taking a deposition, is of a judicial character; on the other, that it is ministerial However this may be, it is certain that he exercises a great deal of discretion, particularly where the witness is illiterate and uninformed. Cases were cited to show that a person thus related to one of the parties cannot sit as a judge in the trial of the cause ; but we think the question before us depends on our statute of 1797, c. 35, § 1, relating to depositions. The provision in this statute is, that a deposition “ may be taken before any justice of the peace, not being of counsel or attorney to either party, or interested in the event of the cause.” Here the magistrate was not of counsel nor attorney to either party ; and the question is, whether he was interested in the event of the cause. These words have a well settled meaning in the law; they refer to such an interest as would disqualify a person to be a witness. We cannot presume that they were used in a different sense in this statute; and when the legislature have said that a magistrate not thus disqualified may take a deposition, we cannot decide that he shall not exercise such power. The Court however have a discretion, in some respects, in regard to the admission of testimony, and if it were shown that fraud or partiality had been practised in taking a deposition, they would reject it. The relationship of the magistrate to one of the parties, would have some tendency to show partiality; and much would depend on the nature of the testimony itself. The deposition under consideration details but a few facts, and the statement of the witness is corroborated by written evidence; and although in general it is reprehensible in a magistrate, to take testimony in a cause, where he is nearly related to one of the parties, still we are of opinion that this deposition ought not to have been rejected. [See Wood v. Cole, 13 Pick. 279 ; Coffin v. Jones, 13 Pick. 441.]

We perceive no facts in the case tending to show a partnership, except that a' number of persons formed an association to run a line of stagecoaches, that they had a general meeting, and that debts were contracted on their account; but we think this is not sufficient evidence to prove a partnership. Clark v. Reed, 11 Pick. 450.

With respect to the damages, the plaintiffs are entitled to judgment against the defendant for one fourteenth part of the amount of the note which has been paid.

Defendant defaulted.