Pike v. Blake

Redeield, J." 1The first question in this case arises on the plea in abatement. This plea is bad. It is out of time, being first [401] pleaded after one trial, upon the general issue. And being a defect, which might be cured by amendment, it is most clearly waived by not being pleaded at the first term. If it had been pleaded in time the officer might have been permitted to endorse his return of non est inventus, or the plaintiff might have amended' by suggesting that the other defendant resided without the state, which by the other parts' of the case proves to have been the fact. J. Ij. Buck for defendant. The next question in the case arises on the deposition of the absent defendant, which was offered by the other defendant.- The deponent was a party to the writ, but not being served with process could not be considered a party to the suit. And if he were a party to the trial most clearly his testimony could only be received before the auditor. , The statute has not made his testimony competent, except in answer to interrogatories put before the auditor. The party is not made a general witness in the case, for if this were so he might testify on the trial of an issue joined to the jury, the contrary of which is well settled. A particular form of oath is to be administered, and by the auditor, or in his presence. But the deponent, altho’not a party to the suit, is interested to defeat the action, and is of course, not a competent witness for the defendant. For altho’ the parties are admitted witnesses, as has been shown, yet the statute does not in other respects vary the testimony to be admitted before the auditor, from what it was at common law. Interested witnesses cannot be admitted of course. And it is well settled that a dormant partner or a joint contractor, not made a party to the suit, although a competent witness for the plaintiff is not competent for the defendant, being interested to defeat the recovery, and thus save his liability to contribute for payment of costs as well as debt. The caption is also defective in not stating when and inhere the cause is to be tried before the auditor. It should be as definite in this respect as if taken so be used before a justice of peace. It being taken by a justice of peace in the state of New York, is well enough. The legislature of that state have seen fit to give this power to justices of the peace in reference ¿to depositions, to be used out of that state. The question of the joint liability of both defendants is found almost in express terms by the auditor. The result is, that the judgment of the county court is affirmed.