
    CALEB PILLSBURY vs. CAMMETT AND NELSON.
    
      In an action of assumpsit against two, one of the defendants, who has been defaulted, is not a competent witness for the other.
    This was an action of assumpsit upon a promissory note, made by the defendants, and payable to one Benjamin Pillsbury, and by him endorsed to the plaintiff. Nelson was defaulted. Cammett pleaded the general issue, upon which, the cause was tried at September term, 1819.
    The defence, upon which Cammett relied, was, that the contract had been rescinded between him and Benjamin Pilhbury, the promissee, before the note was endorsed to the plaintiff; and to prove this, he called Nelson, the other defendant. The plaintiff’s counsel objected to the admission of Nelson as a witness ; but he was admitted, and a verdict returned in favor of Cammett. The verdict was, however, taken, subject to the opinion of the court, upon the question, whether Nelson was a competent witness.
    French, for the plaintiff.
    
      Hoar, for the defendant.
   By the court.

This is an action of assumpsit against two defendants, upon a joint contract, and it is a general rule, to which this case seems to form no exception, that in such a case, judgment cannot be given against one defendant without the other, 1 Chitt. Pl. 31.—1 East 48, Sheriff et al. vs. Wilks.

The verdict in favor of Cammett has placed the plaintiff in ⅛ srnaiion, in which lie cannot avail himself of Jidsmb default. Js'chon, was, therefore, clearly an incompetent witness for CammeU.(l)

The verdict must be set aside, and a mw trial be granted,  