
    HOGG, ADMINISTRATOR OF GARRETT, vs. BRECKENRIDGE AND FERGUSON.
    
      \. The principal in a promissory note (bearing ten per cent, interest) against wlioni a judgment by default has been rendered', is a competent witness for his securities, after having been released by them from payment of all costs that might accrue against them on account of their suretyship ; and also from all interest beyond tho rate of six per cent, upon tho amount which should be adjudged against them.
    ERROR TO ST. LOUIS COURT OF COMMON PLEAS.
    STATEMENT 'OF THE CASE.
    The administrators of Ferguson non-defendants in error, sued Daniel Potterfiold, Enos Garrett, fcnos Garrett, Jr., and Thomas B. Claggett, on a promissoi-y note made by them to Ferguson, the intestate, for $1,000, dated the 1st July 1840, payable ouo year after date with interest at ten per cent, per annum.
    The defendant, Potterfield, filed a cognovit, acknowledging the right of the plaintiff to recover. The other defendants filed several pleas, alleging that the note was made by Potterfield 'as principal, and that they were only securities; and that an agreement was made between Ferguson and Potterfiold on tho 1st July 1841, without the knowledge or consent of the other defendants, whereby in consideration that Potterficid then gave his note to Ferguson for the sum of eighty dollars, Furgeson agreed to give Potterfield further time on the principal no'te for one .year from tho said 1st July 1841.
    To theso pleas filed by the defendants severally replications were filed and issues Were joined.
    After the cognovit was filed by Potterficid, the other deiendants executed to him their several 'releases, discharging him from all liability to either of them, for any costs to Which they might be 'subjected in the action, and from all liability to either of them for any interest upon any money Vhieh they might be compelled to pay under any judgment in such action beyorid the rate of 'six per cent, upon the money they might bo so obliged to pay.
    After theso releases were delivered to Potterficid, his deposition was taken in behalf of the 'other defendants, and he proved tho issues for the defendants.
    After the deposition was takon Potterfield died, 'and before tho trial Enos Garrett and Enos Garrett Jr. also died. William Ilogg, as administrator of the two Garretts, entered his appearance, and the plaintiffs dismissed the action as to Potterfield.
    On the trial the defendants ofleied to road the deposition of Potterfield, but on an objection made by the plaintiffs, the cohrt excluded the deposition on the ground of the incompetcncy of Potterfield as a witness. A verdict being found for the plaintiffs, a now trial was moved for and the motion overruled.
    Gamble & Bates, for plaintiff in error contend :
    1st. That Potterfield was released from ail liability to the other defendants'to such extent that it was immaterial to him which party should succeed. He was not interested in the event of the controversy.
    2d. That although a party to the record, he was competent to testify in favor of the other defendants. 7 Bingham 395 ; 1 Petcis C. C. Rep. 301.
    Dayton, for defendants in error insists :
    1st. That Potterfield was not a competent witness for the defendants below to establish the defence set up in the second plea.
    2d. The facts set forth in Porterfield’s deposition do not establish the defence relied on.
   Judge Birch

delivered the opinion of the court.

The only question properly presented by the record in this case, concerns the competency of Potterfield, a witness (and the only one) who was relied upon to prove the issue for the defendants in the court below—appellants here. Having been one of the obligors in the note sued upon, and failing to plead, there was a judgment against him by default, subsequently his cognovit to the action, and afterwards full releases by his co-obligors, as to subsequent costs and interest beyond six per cent. By his deposition subsequently taken, it was proven that he was in fact the principal, and the other defendants but securities in the note sued upon, and that these facts, which were setup in the pleas of the other defendants, were known to the plaintiffs’ intestate at the time of the execution of the note. Shortly after this the suit was dismissed as to Potterfield : but it is assumed that as at the time of taking his deposition, he was liable to be included in any final judgment which might be rendered against his co-defendants, he was thereby contingently liable to the plaintiff for the costs of the suit accruing from the subsequent litigation with his co-defendants, or sureties. It is deemed unnecessary to enquire how far this may be true, as a general proposition, and when applied to suits commenced, continued and concluded against joint and several obligors, since its converse in cases such as this, results from the discretion and the duty devolving upon the courts to apportion and tax the costs to those parties ultimately liable, whose course of proceeding has occasioned them. The extent of Potterfield’s liability to the plaintiff being thus fixed by his confession of judgment, the subsequent releases of the other defendants, rendered him a disinterested, and consequently a competent witness. The court therefore erred in excluding his deposition, and for this reason, (the other judges concurring) its judgment is reversed, and the cause remanded.  