McClure v. Hall — 19 Wend. 25

Majority

p. 25

McClure vs. Hall and others.

Headnote

Where there are three defendants, one of whom suffers a default, and the others plead to issue, and on the trial prove payment of the plaintiff’s demand, the jury have no right to assess damages against the other defendant.

This was an action of assumpsit against three defendants, ' one of whom suffered a default, and the others plead to issue. On the trial, the defendants who had appeared, proved payment of the plaintiff’s demand, notwithstanding which the jury assessed damages against the defendant who had suffered the default, and found a verdict accordingly. A motion was now made to set aside the verdict, which was granted.