Dodge v. Averill
New York Supreme Court
This was a motion on the part of the defendant Averill for a commission to examine his codefendant Shepard, now living in Wisconsin. The action was trover, to recover a quantity of timber, and was commenced in November 1847, and had been referred and considerable testimony taken before the referee, and an adjournment granted for the purpose of making this motion.
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This was a motion on the part of the defendant Averill for a commission to examine his codefendant Shepard, now living in Wisconsin. The action was trover, to recover a quantity of timber, and was commenced in November 1847, and had been referred and considerable testimony taken before the referee, and an adjournment granted for the purpose of making this motion. No process had been served upon Shepard, nor had he appeared in the cause; but he was liable to the defendant Averill, who was his vendee, for the value of the property if the plaintiff should succeed. The papers made out a strong…
1Opinion of the Court
Hand, Justice.
In England, one against whom process in an action for a tort is issued, although not served, is still considered a party to the suit, and as such it seems can not be examined as a witness (1 Phil. Evi., 74; Bull. N. P., 286; 2 Stark. Evi., 766; and see 2 Campb., 334 n; Gilbert Evi., 232; Bohun v. Taylor, 6 Cow., 313). Our courts have decided he may be .a witness if not liable over to his codefendant upon whom service has been made, as contributor or warrantor; confining his incompetency to a fixed legal interest (Stockham v. Jones, 10 J. R., 21; Van Orden vs. Striker, 9 Wend,…
2Cases cited3 opinions
- Bohun v. CollinsNew York Supreme Court · 1826
- Lord v. Brown & BouckNew York Supreme Court · 1848
- Corbin v. Mills' ex'orsSupreme Court of Virginia · 1869
3Cited by1 opinion
- Fitch v. BatesNew York Supreme Court · 1851