Rabby & Co. v. O'Grady

33 Ala. 255

Opinion

"WALKER, J.—

Section 2288 of the Code says, that a defendant, against whom there is no testimony, is a competent witness for a co-defendant. This was a suit on a note executed by Z. Rabby & Co. The defendant Mc-Cluskey, who was offered as a witness for a co-defendant, pleaded non est factum. In order to render him liable upon the note, he must have executed the note, or been one of the members of the firm when it was given; or he must have been previously a member of the firm which executed it, and it must have been given without notice of the cessation of his membership, to one who had had dealings with the partnership during his membership. Story on Part. 247, § 160. After the plea of non est factum, it was incumbent upon the plaintiff to show one or the other of the facts requisite to prove the liability. There was not the slightest evidence conducing to show, either that McCluskey executed the note, or that be was a member of the firm of Z. Babby & Co., in the name of which the note was given, at the date of the note, or that he ever had been a member of it. There was, therefore, in this suit upon the note, no evidence against McCluskey, who was offered as a witnesss, and the court erred in refusing to permit him to testify.

[8.] The defendant offered iu evidence sundry accounts of the different partnerships, in the different names, against persons other than the plaintiff. We do not perceive how those accouuts could contribute to illustrate any question involved in the case, and the defendant does not appear to have made their pertinency apparent to the court below. They were not, prima facie, admissible; and if they could be made competent by the aid of other testimony, it was incumbent upon the defendant to have offered them in connection with such evidence.

The judgment of the court below is reversed, and the cause remanded.