| Ill. | Apr 15, 1866
delivered the opinion of the Court:
There are two questions presented by this record. The first is, as to the competency of Davenport as a witness in the cause. The other is, was Davenport legally released by the bank, and did this release operate to discharge the other makers of the note ? The appellees maintain the affirmative of both these propositions.
We are of opinion that Davenport’s deposition was inadmissible, he being interested because liable to contribute unless discharged. Outside of his testimony, there is no proof that he stipulated for his release when he paid one-third of the note, even if he could have done so legally.
The erasure of his name from the note, was done at his request, and without any authority by the clerk who did it. His functions did not extend to any acts of that character. The want of authority is sworn to by both the cashier, Spink, and the note teller, Linkfield, who made the erasure.
Davenport not having been released, consequently the other makers of the note are not, and as the note is joint and several by our statute, it is competent for the bank to resort to either for payment. The judgment is reversed, and the cause remanded.
Judgment reversed.