Cline v. Little

5 Blackf. 486, 1841 Ind. LEXIS 10

• Court: Indiana Supreme Court
• Decided: February 2, 1841
• Status: Published

Opinion

INDEBITATUS ASSUMPSIT for work and labour. Pleas, the general issue and payment. On the trial the defendant offered a person, who was his partner at the time the work was done, as a witness, after executing a release to him of all claims for contribution, &c. Held, that the witness was incompetent. Cheyne v. Koops, 4 Esp. R. 110.—Simons v. Smith, R. & M. 29.—

(1).

The Nisi Prius cases of Cheyne v. Koops and Simons v. Smith, upon the authority of which the decision in the text was made, have been overruled by the Court of Common Pleas in a late case, in which it was held that in an action for wages, brought by the secretary of an intended joint-stock company against one of the provisional committee, another member of the committee was a competent witness for the defendant after a release from him. In support of this opinion, the Court cites the cases of Wilson v. Hirst et al. 4 B. & Adol. 760, and Jones v. Pritchard, 2 Mees. & Wels. 199, saying that they were expressly in point where the witness and the defendant arc the only partners, or the only co-contraetors, and that they afforded a strong authority in favour of the proposition, that the witness was restored to his competency by a release from the defendant, although he might not be the only partner. Beckett v. Wood, 6 Bing. N. C. 380.