Brown v. Hurd

Citations

• 41 Ill. 121

Syllabus

<p>1. Witnesses—competency—whether one partner may testify against a copa/rtnerr. Where a member of a firm has taken, by agreement with his co-partners, all the partnership debts, and assumed all the partnership liabilities he is a competent witness in behalf of a creditor of the firm in a suit against himself and other persons sued as his copartners, to prove, under an issue involving that question, that his co-defendants were liable with him. This rule was laid down in Bell v. Thompson, 34 Ill. 529, it being considered that his ultimate liability for the entire debt, relieved the witness of any disqualifying interest in the result of the suit.</p> <p>2. But, if the effect of his testimony is to transfer a portion of his own admitted liability to his co-defendants against whom he is called to testify, and against whom no liability is shown except by the aid of his testimony, then he would be incompetent, because he would be swearing in his own interest.</p> <p>3. The interest of the witness thus situated to fix the liability of his codefendants to contribution, is not balanced by the consideration, that, by testifying in their favor, he might defeat a recovery in the present action, under the rule that, in a suit against several, a recovery must be had against all or none; because, his own liability being admitted, should he go clear of the present action upon the ground his co-defendants were not liable, it would be with the certainty that the entire debt would fall upon him.</p> <p>4. Former decisions. The cases of Crook v. Taylor, 12 HI. 855, and Hurd v. Brown, 25 HI. 616, are in conflict as regards the rule on the subject. But the rule laid down in the latter case is considered the better rule, and is in harmony with Bell v. Thompson, supra.</p> <p>5. Effect of the act of 1861, allowing parties to be called os witnesses. Nor is the rule above announced, as to competency, at all affected by the act of 1861, allowing parties to be called as witnesses. The object