
    Kirk against Hodgson and others.
    A defendant who appears to have no interest in the cause, but is made a party pro forma only, may be examined as a witness for his co-defendant, notwithstanding the-plaintiff has filed a replication to the answer of such defendant.
    
      September 22d.
    
      B. ROBINSON, on the part of the defendant H. Hodgson, moved for an order to examine the defendants Eastburn and Downes, as witnesses for him. He contended, that it appeared from the pleadings, that they were not interested, and were made defendants, pro forma. He cited 1 P. Wms. 596. 1 Johns. Ch. Rep. 246, 247.
    
      Emmet, contra,
    objected, on the ground that a replication had been filed to the answers of Eastburn and Downes. He cited 2 Madd. Ch. 316., in which it is said, that if the answer of a defendant be replied to, he is considered as interested, and cannot be examined.
   The Chancellor

[ * 551 ]

said, he thought the mere fact of filing a replication was not sufficient to prevent the examination of a co-defendant, who appeared by the pleadings not to be interested in the cause. The dictum in Maddock was without reference to any authority to support it. If the filing a replication, was, of itself, decisive proof of interest, it would be in the power of the plaintiff to deprive a defendant of any witness. The rule to examine these *co-defendants must be granted, subject to all just exceptions; and if it should appear on the hearing that the co-defendants were interested, their depositions would, of course, be suppressed.

Rule accordingly.  