Alexander v. Crosthwaite, 44 Ill. 359 (1867)

April 1867 · Illinois Supreme Court

44 Ill. 359

Edward L. Alexander v. Henry W. Crosthwaite.

Witness—competency—interest. A co-defendant sued as a partner, and suffering default, is disqualified by interest from being a witness, as against his co-defendant, to prove the partnership; and he is not made competent by the act of 1861 allowing parties to be called as witnesses.

Writ of Error to the Circuit Court of Warren county; the Hon. John S. Thompson, Judge, presiding.

The opinion states the case.

Messrs. A. G. & I. M. Kirkpatrick, for the plaintiff in error.

Mr. J. H. Stewart, for the defendant in error.

Mr. Justice Lawrence

delivered the opinion of the Court:

Alexander and Wilson were sued as copartners. Wilson suffered default. Alexander pleaded in abatement, denying the partnership. Issue was joined on this plea, and on the trial the plaintiff called Wilson as a witness to prove the partnership. Alexander objected, but the court overruled the objection. The precise question involved in this case has been decided by this court in the case of Brown v. Hurd, 41 Ill. 121. It is there held, that a co-defendant sued as a partner, and suffering default, is disqualified by interest from being a witness, as against Ms co-defendant, to prove the partnership, and that he is not' made competent by the act of 1861. The judgment must be reversed and the cause remanded.

Judgment reversed.