
    SUPREME COURT.
    Mitchell agt. E. Weed and W. W. Weed.
    Where an attachment against a non resident is issued under the Revised Statutes and the property attached has been discharged on a bond given by the friends of the defendant in the attachment, such defendant is not a competent witness for the makers of the bond in a suit upon it; although not nominally a party to the action.
    Nor can he be made a competent witness by a release from the makers of the bond upon which suit is brought.
    
      New York Circuit, October 1851,
    This action was originally commenced by attachment against George Hurlbut, a non resident. The warrant of attachment was issued in August 1848, directed to the sheriff of Erie county, by virtue of which he attached a vessel belonging to said Hurlburt. Elias Weed and William W. Weed gave their bond under the statute to discharge the vessel; suit was then commenced on the bond against the above defendants. On the trial, the defendants offered as a witness George Hurlburt, the defendant in the original attachment; the court excluded the witness. Defendants’ counsel then tendered a release from the Messrs. Weed, and again offered Hurlburt as a witness, contending that he was divested of his interest by virtue of the release, that he was not a party to .this action, nor the one for whose immediate benefit the action was defended. The plaintiff’s counsel objected, and the question was argued as to the competency of the witness.
    Edwards Pierrefont, for Plaintiff'.
    
    A. F. Smith and A. K. Hopkins, for Defendants.
    
   Edwards, Justice.

I think the witness must be excluded; he is not a competent witness, and can not be made so by a release from the defendants, under section 399 of the Code. I consider him inadmissible.  