McGinnes v. McGinnes ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

[1.] The plaintiff in error had taken no legal steps of any sort, to obtain the testimony of the witness. Therefore, the want of that testimony could be no ground for a continuance This is obvious.

Was McDill, the maker of the note, interested in the event of the suit, which was against his surety, the plaintiff in error ?

[2.] In such a case the authorities say, that the maker is interested in favor of the surety to the extent of the costs of the suit; and therefore, that the maker is incompetent as a witness for the surety. It is with extreme difficulty, that I can go with these authorities. See them referred to in note 1, to section 401, of Greenleaf’s Evidence.

We have to say, then, that the Court below did right in dismissing the certiorari.

Judgment affirmed.