Noyes & Pettingill v. Hewitt
New York Supreme Court
[142] Error from the supreme court. Hewitt brought an action of trespass in a justice’s court against Noyes and Pettingill, for the taking of a horse. The horse was taken by Pettingill, as a constable, by virtue of an execution against Emery Lane in favor of Noyes. The cause was tried by a jury.
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[142] Error from the supreme court. Hewitt brought an action of trespass in a justice’s court against Noyes and Pettingill, for the taking of a horse. The horse was taken by Pettingill, as a constable, by virtue of an execution against Emery Lane in favor of Noyes. The cause was tried by a jury. The question in contest was, whether the horse was the property of Hewitt or the property of Lane, or at least, whether Lane had not such an interest in the horse as was the subject of sale. When the plaintiff rested, no evidence having been given connecting Noyes with the talcing, it was moved on…
1Opinion of the Court
After advisement, the following opinion was delivered :
By the Chancellor.
[143] The first question that presents itself in this cause is, whether the justice decided correctly in discharging Noyes so that he might be a witness in favor of the other defendant. The rule is well established that, in actions of tort, if there is no evidence against one of several joint defsadauíá, it is the duty of the court, upon application, to discharge the one against whom there is no testimony, so that he may be a witness for his co-defendants. And in the case of Van Deusen v. Van Slyck, (15 Johns. R., 223,)…
2Cases cited2 opinions
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