
    *Braxton’s Adm’x v. Hilyard.
    Wednesday, March 20, 1811.
    Bond — Joint Obligors — Declaration—Necessary Allegations— Jn an action against the representatives of one of two joint obligorsin abond. dated in 1783, it is essential to state in the declaration tnat that obligor survived his companion.
    See Atwell's Adm’rs v. Milton, 4 H. & M. 253, and Atwell’s Adm 'rs v. Towles, 1 Munf. 181.
    Same — Same—Witnesses.—The widow of one of two joint obligors is a competent witness, in support of the plea of infancy, in a suit against the other, or his representatives; and this notwithstanding her husband died intestate; her interest, in such case, being remote and uncertain, and either equal between the parties, or against the party in whose favour her testimony operates.
    See Baring v. Reeder, 1 H. & M. 154 — 176.
    This was an action of debt in the district court of King & Queen, on a joint bond executed the 21st of January, 1783, by Carter Braxton and George Braxton, to Anthony Thornton, executor of Walter Taliaferro; by him assigned to Robert Pollard; and by Robert Pollard to Joseph Hilyard, the plaintiff. The suit was against Mary Brax-ton, administratrix with the will annexed of George Braxton; the declaration charging that “whereas the said George Braxton, in his lifetime, together with Carter Brax-ton, by his certain writing obligatory, sealed with his seal, &c. acknowledged himself to be held and firmly bound,” &c. (proceeding to set forth the assignments, and alleging that) “the said George, in his lifetime, or the defendant, since his death, or any other person for them, or either of them, the said sum of money had not paid,” &c. without containing1 any averment that Carter Braxton (the joint obligor) was dead, or that no payment had been made by him.
    The defendant pleaded that her testator, George Braxton, was an infant within the age of twenty-one years, when the said writing obligatory, in the plaintiff’s declaration mentioned, was signed and sealed; on which plea issue was joined.
    At the trial the defendant offered in evidence the deposition of Mrs. Elizabeth Braxton, proving that she was mother of George Braxton, lately deceased, and that he was born on the 17th day of September, 1762.
    The jury found a special verdict as follows: “ We of the jury find for the plaintiff, &c. if the court shall be of opinion that the deposition of Elizabeth Braxton, the widow of Carter Braxton, one of the obligors in the bond in the declaration mentioned, and who died intestate, be inadmissible; if not, we find for the defendant; it ’'being agreed by the plaintiff and defendant that the presence of the said Elizabeth Braxton is dispensed with.”
    The district court was of opinion that the law upon this verdict was for the plaintiff. Judgment was, therefore, entered in his favour: whereupon the defendant appealed.
    Call, for the appellant
    made two points;
    1. The declaration is substantially defective, in not setting forth what had become of Carter Braxton, the joint obligor. Neither does the special verdict relieve the plaintiff from this difficulty; for it does not appear when Carter Braxton died, whether before George Braxton, or afterwards.
    2. Elizabeth Braxton’s deposition ought to have been received as evidence. If George Braxton was a surety, it was plain to the commonest apprehension that she stood indifferent; for, whichever way that suit went, her husband’s estate was responsible; he being the principal in the bond. If, on the contrary, George Braxton was not merely a surety, but bound for part, Mrs. Braxton swore, in fact, against her own interest; for, by relieving George Braxton entirely, she diminished her own dividend of the estate of Carter Braxton. In this point of view, then, she was the best possible witness, 
    
    Peyton Randolph, contra.
    1. In the case of Bentley, Executor of Ronald, v. Har-manson, the same objection with that taken by Mr. Call to this declaration was overruled.
    2. Mrs. Braxton was not a competent witness. Carter Braxton, her husband, could not have been a witness to prove the infancy of George Braxton at the time of signing the bond; because the record of the judgment against George Braxton would be conclusive evidence in a suit, by him as surety, to recover the money of Carter Braxton as principal,  It may be said, that Carter *Braxton’s interest1 was equal either way. But, if he exonerated George Braxton by his testimony, the record would not be evidence against him, in a suit on behalf of Hilyard. The interest, therefore, does not hang equal.
    Again; if Carter Braxton was sued by Hilyard, he might bring forward discounts; but, in defending a suit by George Braxton against him, (founded on a recovery by Hilyard in this suit,) he could not avail himself of any discounts he might have against Hilyard.
    Carter Braxton, therefore, was not indifferent between these parties. And, if he could not have been a witness, neither could his executor or administrator. An executor or administrator is identified, in the eye of the law, with the testator, or intestate; being considered as a legal continuation of his life. His liability to costs, also, when defendant, disqualifies him from giving evidence. The case of Goodtitle, Lessee of Fowler, v. Welford, seems to discountenance this idea; but that is counteracted by Rhode’s Case,  cited Esp. N. P. 70S, and, ibid. 704, the doctrine is laid down, as well established, that a prochein ami cannot be a witness, because responsible for costs.
    But Mrs. Braxton, as widow of Carter Braxton, was. clearly inadmissible. He died intestate; and she is entitled to her share of his residuary estate. Her interest, therefore, is stronger than that of an executor; and, being certain and immediate, was sufficient to set her aside, 
    
    Williams, on the same side. A witness when examined must be competent as to all questions that may be asked. Carter Brax-ton must have known the age of his son; he, therefore, practised a fraud on the obligee by passing him as an adult, when he signed the bond. Mrs. Braxton (his wife) ought not to be received to prove her husband guilty of fraud. If she could not be a witness for such purpose during his life, neither could she after his death.
    *Call, in reply.
    It did not judicially appear in the case of Bentley v. Harmanson, 1 Wash. 273, that the bond was joint; but it was admitted by the court that the objection would have been a sound one, if the fact upon which it was founded had appeared in the record.
    As to the competency of Mrs. Braxton; there is no such rule of law as that a wife can in no case give evidence proving her husband guilty of fraud. But it does not appear that Carter Braxton was guilty of fraud. There is no evidence that he concealed from the obligee the fact of his son’s being under age.
    Carter Braxton himself might have been a witness in this case; because he was re-spotisible, whether George Braxton was, or not.
    
      
       Peake’s Ev. 160; 2 East, 458, Birt and others v. Kershaw.
    
    
      
       1 wash. 273.
    
    
      
       Peake’s Ev. 144; 1 Esp. N. P. 106; 1 H. & M. 165.
    
    
      
       Doug1.134; cited in Esp. N. P. 704.
    
    
      
       Leach’s Crown Cas. 25.
    
    
      
       1 H. & M. 167.
    
   Tuesday, March 26th.

The JUDGES BROOKE, ROANE, and FLEMING (TUCKER not sitting in the cause) pronounced their opinions.

JUDGE BROOKE-

The judgment ought to be reversed on both grounds taken by the counsel for the appellant.

In the first place, the suit being on a joint bond dated in 1783, the declaration was defective in not setting forth what had become of the other obligor. Instead of averring he was dead, it rather showed, on its face, that he was still alive.

In the second place, Elizabeth Braxton’s testimony should have been admitted. The verdict does not show clearly how she could be considered as interested. If she had any interest at all, it was in favour of the party who objected to her evidence.

JUDGES ROANE and DEEMING

concurred on both points, which (the former observed) had been well settled in this court.

Judgment reversed, and “this court proceeding, &c. is of opinion that the law arising upon the special verdict is for the appellant; therefore, it is further considered that the appellee take nothing,” &c. 
      
      Joint Bond — Death of One Obligor — Effect.—On tills subject, see the principal case cited In Somerville v. Grim, 17 W. Va. 808; foot-note to Harrison v. Field, 2 wash. 136 (containing excerpt from Somerville v. Grim, 17 W. Va. 808); Reynolds v. Hurst, 18 W. Va. 654; foot-note to Crawford v. Daigh, 2 Va. Cas 521 (containing extract from Reynolds v. Hurst. 18 W. Va. 654); foot-note to Elliott v. Lyell, 3 Call 268; foot-note to Atwell v. Towles, 1 Munf. 175.
      See further, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
      The principal case is cited in a note appended to Hill v. Harvey, 2 Mnnf. 526, in regard to the appellate practice on reversing a judgment when the declaration is radically defective, but the defendant pleaded to the action. On this subject, see mono-graphic note on “Appeal and Error” appended to Hill v. Salem, etc., Turnpike Co., 1 Rob. 26S.
     