COCKERHAM et al. VS DAVIS, 5 Port. 220

GOLDTHWAITE, J. The Court in this case, decline at this time, to pronounce any decision on the main question which arises, as the Court for the trial of this cause consists of only two members, and a question having been argued which renders any decision on the merits of the case, unnecessary.

The insolvency of John Davis, who commenced the original proceedings, which caused the present bill to be exhibited, as well as the want of assent of Edward Davis to the use of his name, are material facts, which not being admitted by the answers of his co-defendants, must be supported by proof; and there being no proof of these allegations, the objection is fatal. The answer of one co-defendant can not be used against another — therefore, although the fact is fully admitted in the answer of John Davis, his admission cannot prejudice the rights of his co-defendants. — Collier vs Chapman.

For this reason, the decree rendered below, must be reversed; and this Court proceeding to render such decree, as the Circuit Court should have rendered, doth order, adjudge and decree, that the bill of complainant be dismissed, and that the respondents, except John Davis, recover of the said complainant, their costs in this Court,and the Court below. COLLIER, J. not sitting. 2 Stew. 163.