ELIJAH AMES vs. MATHER WITHINGTON

Assumpsit, upon two promissory notes, dated September 7, 1821, for $100 each, one made by Winslow.//mes and the defendant, and the other by Winslow Ames, Jonas Wright, and the defendant.

The cause was tried here, upon the general issue, at April term, 1824, when the defendant, to prove payment of the notes, called Winslow Ames, one of the makers of the notes, the said Ames having been released by the defendant from all claims to contribution, in case the plaintiff should recover. To the admission of Ames, as a witness, the plaintiff objected; but he was admitted; and the jury having returned a verdict for the defendant, the plaintiff moved the court to grant a new trial, on the ground, that Ames ought not to have been admitted, as a witness.

By the court. The question to be decided is, whether Winslow Ames was a competent witness in this case ? As the defendant had released the witness from all claim to contribution, Ames had no interest in the event of the suit, unless he can use the judgment in this case as a bar to any suit, that may be brought against him upon the note.

It is a well settled principle of law, that in an action upon a contract against two, if one be defaulted, yet if the other shows a good defence, the plaintiff can have judgment against neither. 2 N. H. Rep. 283, Pillsbury vs. Commett.—1 Levintz 63, Porter vs. Harris.—10 John. 524, Clason vs. Morris.

But it seems never to have been supposed, that a judgment in favor of one maker of a note could avail another maker of the same note, in a suit brought against him. 14 Mass. Rep. 303.—16 Mass. Rep. 118, Fox vs. Whitney.—Peake's N. P. cases 174, Goodacre vs. Bream.—1 Esp. N. P. cases 103. Young vs. Bairner.—1 Pick. 118, Gibbs vs. Bryant.

We are therefore of opinion, that there ought to be