Baugher v. Culler

Bartol, J,, delivered the opinion of this court. This suit was originally instituted by the appellants against the appellee and George H. Buckey, as partners, trading in the name of Culler &• Buckey, on a contract alleged to have been made by the firm. The appellee alone was summoned, Buckey being returned “non est.” In the progress of the cause, Buckey was called as a witness for the plaintiffs, for the purpose of proving the terms of the contract. The defendant objected to his competency, and the Circuit Court sustained the objection, and the question presented for our decision by the first bill of exceptions is, whether the said witness was properly excluded as incompetent.

No ground of objection to the competency of the witness is stated in the record, and the cause has not been argued in this court on behalf of the appellee. It seems to us that the testimony ought to have been received. So far from being objectionable on the ground of interest, his evidence tended to charge himself; he was directly interested in defeating the action; for in the event of the plaintiffs’ recovery, the defendant would be entitled to contribution from the witness. The case of Blackett vs. Weir, 5 Barn. & Cress., 385, (11 Eng.

C. L. Rep.,) is very analogous to