Mills v. Lee — 4 Hill & Den. 549

Majority

p. 549

Mills vs. Lee and others.

Headnote

In actions ex contract’ll, a separate verdict in favor of one of several defendants, though grounded on his discharge as a bankrupt, will not render him competent to testify for his co-defendants.

Motion to set aside inquest and subsequent proceedings. Mills sued Wells, N. P. Lee and W. M. Lee on a promissory note. Wells and N. P. Lee pleaded non-assumpsit, and the latter gave notice of his discharge as a bankrupt since the making of the note. W. M. Lee suffered default to be entered against him for want of a plea. At the circuit, Wells moved to put off the trial of the cause on an affidavit that his co-defendant, N. P. Lee, was a material witness &c., that he was absent from the state, and that he had been discharged as a bankrupt. The judge denied the motion, for the reason that N. P. Lee. if present, could not be used as a witness for his co-defendant, and that even a verdict in his favor grounded on his bankrupt discharge would not render him competent. No affidavit of merits having been filed, an inquest was taken against Wells, which he now moved to set aside.

S. Stevens, for the motion.

S. J. Cowen, contra.

By the Court,

The judge was clearly right in refusing to postpone the cause. There can be no doubt that, in actions ex contractu, a verdict in favor of one of several defendants, though'on the ground of bankruptcy, will not render him a competent witness for his co-defendant. ( 3 Hill, 106 , 7, note, and the cases there cited.)