
    Benjamin Glasscock v. McRae and Sharp.
    
      One partner against whom a separate judgment has been recovered, is an incompetent witness for the plaintiff to prove the indebtedness as against the other partner.
    from the District Court of Livingston, Stirling, J.
    
      G. W. Waiter-son, for plaintiff.
    
      T. A. Bartletle, for defendant.
   The judgment of the court (Slidell, J., dissenting,) was pronounced by

Preston, J.

The plaintiff instituted suit against the defendants, as partners in a sawmill. He propounded interrogatories to Sharp, whose answers were favorable to his claim; and judgment was rendered against him separately for the amount admitted to be due. McRae prayed for a jury; and on the trial the plaintiff offered Sharp as a witness, who was rejected as incompetent on the ground of interest. The plaintiff excepted to his rejection. A verdict and judgment was rendered against him, and he has appealed.

The plaintiff does not pretend that he has made out his case against McRae ; and only contends, that the cause should be remanded for the reception of the testimony of Sharp.

To be competent, our code declares that the witness must be neither directly nor indirectly interested in the cause. If judgment should be rendered against McRae, and the plaintiff should recover the amount from him, Sharp would be exonerated as to the plaintiff, and McRae could recover but half the amount from him. So, if the plaintiff recovered from RcRae but half the amount, Sharp would be so far exonerated without any liability to McRae. He was, therefore, clearly interested in the plaintiff’s success in the suit, and was properly rejected as an incompetent witness.

The case of Ellis et al. v. Lame et al., 4th Ann. 245, is analogous in its circumstances, and conclusive on the point.

The judgment of the district court is therefore affirmed, with costs.

Judge Slidell dissents from this opinion, referring to 3d Ann. 64.  