#### Thomas Stokes et al. v. Charles Kane.

Appealfrp?7i Winnebago.

1. Witness — Incompeteney for interest. A witness is not always incompetent, because he is interested in the event of a suit. If his interest is balanced, or against the party calling him, he is competent, (a) A party excepting to the decision of a circuit court in refusing to exclude a deposition because the witness is interested in the event of the suit, must state in his bill of exceptions the nature of that interest; otherwise his exception will be unavailing.

This cause was beard at the April term, 1841, of the Winnebago circuit court, before the Hon. Thomas C. Beownb and a jury. Verdict and judgment were rendered for the plaintiff for $93. The defendants appealed to this court.

E. D. Baker and A. T. Bledsoe, for the appellants.

O. Peters, for the appellee.

(a)

Cases Citing Text. This rule enforced in 1859. Warner v. Carlton, 22 Ill. 415, 422. Since statute of 1867 interested witness is in general competent. R. S. 1874, Evidence ch. 51 § 1 ; S. and C’s. Stats, p. 1071 ; Cothran’s Statute (1885) p. 662.

Treat, Justice,

delivered the opinion of the court: (1) On the trial of this cause, in the circuit court, the plaintiff read in evidence the deposition of one Whitcomb. It appears from a bill of exceptions tendered by the appellants, that before the reading of the deposition, they offered to prove that the witness was interested in the event of the suit, which the court refused. This decision is assigned for error. It does notfollow, because a witness is interested in the event of a suit, that he is incompetent to testify. If his interest is favorable to the party calling him, he is incompetent; otherwise, where his interest is balanced, or adverse to the party who introduced him. In this case, it does not appear what was the nature of thé interest by which the testimony of the witness was sought to be excluded. It maynot have been a disqualifying interest. It was incumbent on the appellants, in order to present the question.here, to have stated in the bill of exceptions the nature of the interest, so that this court could determine definitively whether the witness was incompetent or not. The case of Rogers v. Hall, 3 Scam. 5, is in point.

The judgment of the circuit court is affirmed with costs.

Judgment affirmed.

(1)

The judgment in this cause was rendered at the previous term.