Otis Vinal versus Nathan Burrill et al., 18 Pick. 29

Putnam J. delivered the opinion of the Court. It seems to us, under the circumstances, that Valentine had no right to interfere with Burrill and Kimball. If they did not choose to be defaulted, we think that Valentine had no right to the order or assistance of the court to have them defaulted. They stood then as parties to the record, relying upon their pleas, and it could not then appear to the court but that they might be discharged upon their pleas. The judge, we think, did right to leave them to manage the cause in their own way.

It was contended for Valentine, that if Burrill and Kimball were defaulted, and admitted as witnesses for'him, their interest would have been against him, because if they testified so as that he would be discharged, they would be liable !k¡r the whole demand, upon their default, and could not have had any contribution against him.

But we think their stronger interest would have been, in such case, to reduce the demand of the plaintiff against Valentine to nominal damages, and then no greater damages could be assessed against them upon their default.' But however that might be, we think that Valentine had. no right to compel them to be defaulted. The plaintiff might unquestionably have moved for their default.