After a continuance nisi, the opinion of the Court was delivered by
WestoN C. J.The defendant attempted to prove at the trial in the Common Pleas, that the watch in controversy did not belong to the plaintiff, but had been transferred to him and one Ward, on a contract made between them, in regard to a patent right. He offered the deposition of Ward, from which it appears, that the defendant had delivered the watch, in part fulfilment of the purchase, the plaintiff and one Perry bad agreed to mate. The interest of Ward is very manifest. He sets up a joint property in the watch, and if the defendant prevails, it will be equally for the benefit of Ward, and they will hold it, free of any claim, on the part of the plaintiff. For if he cannot charge Cole, who received the watch, he can hardly hope to prevail against Ward. But if he should bring an action against the latter, if Ward is a good witness for Cole, he is equally so for Ward; and between them both, the plaintiff may be defeated ; and that for their joint benefit.
Whether the cause should be continued or not, vested in the discretion of the Judge below ; and is not matter, upon which exceptions can be sustained.
Exceptions overruled.