3 N.C. 366 | Sup. Ct. N.C. | 1805
Had it not been for the bankruptcy, he would not be a good witness; because, by defeating Hunter, he prevented a suit against himself, and retained in his hands what McAuslan paid him, and because McAuslan, being originally liable either to Gibbs or Hunter, must remain so to Gibbs if Hunter fails in this action; for then no other person can claim but Gibbs. But Gibbs having obtained his certificate, and all his estate having been exhausted in paying the debts due from the United States, and there being no fund in the hands of the assignees to be diminished by McAuslan's suit against them, it seems to me there should be a new trial, that this part of the case may be better considered, and that it may be so carefully determined as to give satisfaction to the parties concerned. (368)
A new trial ordered.
NOTE. — See Harrison v. Harrison, ante, 355; Farrell v. Perry,
