The mere fact that a defendant of record has obtained a discharge in bankruptcy does not render him a competent witness for his co-defendant in the trial of an action prosecuted by the administrator of a deceased plaintiff.
WALKER, J.
Upon the facts as stated in the case the exception must be overruled. The mere fact that the bankrupts have obtained their discharges does not conclusively show that they are nominal parties. The case was not dismissed as to them. They still remain parties to the action, and may be interested in some issue developed during the course of the trial, as, for instance, the issue of a new promise since their discharge. Jenks v. Opp, 43 Ind. 108, Oatis v. Harrison, 60 Ga. 535. The case does not disclose what the pleadings were, if there were any, or what reply the plaintiff made to the plea of a discharge in bankruptcy. Under these circumstances the court cannot hold as a matter of law that there was error in the exclusion of the evidence offered. P. S., c. 224, s. 16.
Exception overruled.
All concurred.