
    Beale Buckingham vs. Benedict and Nicholas G. Clary.
    
    December 1846.
    The principal obligor in a bond is a competent witness to prove its execution by his surety therein, in an action on such bond, under the plea of non est factum by the surety. Tho witness is liable either to the plaintiff, or to the defendant, if he pays it, for the whole amount of the bond, and was therefore called to testify against his own interest in either event.
    Appeal from Carroll county court.
    This was an action of debt, commenced on the 22nd March 1844, by the appellees against the appellant. The plaintiffs declared upon the bond of the appellant, dated 20th February 1841, payable to him twelve months after date, for $200. The defendant pleaded non est factum, on which plea issue was joined.
    In this case, the plaintiff to prove on his part the issue joined, offered in evidence the single bill declared on, and to prove the signature of Beale Buckingham, the defendant, and that the said Beale Buckingham, was the security of Barkin Buckingham, one of the obligors; and that the witness, hereinafter mentioned, was present, and saw said defendant execute the single bill offered Barkin Buckingham, the co-obligor, as a witness.
    The defendant, objected to the witness as incompetent, on the ground, that he was interested, because the effect of his testimony was to lessen the amount of his own indebtedness on the instrument; and to make the defendant liable for the debt, equally with, and partly in exoneration of, himself, the witness. And because he, the plaintiff, was, if the ángle bill be genuine, a co-obligor with the defendant: and if the name of Beale Bucking!mm was a forgery, then the witness was a sole obligor in the instrument, it being admitted, that the witness, himself, did execute the instrument according to its purport. The court, (Dorsey, C. J., and Wilkinson, A. J.,) overruled the objection, and permitted the witness to testify,-being of opinion, that he was competent. The defendant excepted.
    The defendant appealed to this court.
    The cause was argued before Archer, C. J., Magruder and Martin, J.
    By Raymond for the appellant, and
    By Palmer for the appellee.
   Archer, C. J.,

delivered the opinion of this court.

This was a suit instituted to recover the amount of a single bill obligatory. The plaintiff offered the principal obligor in the bill, to prove the execution of the bill by his surety. The witness was objected to, as incompetent from interest.

The evidence proposed to be offered by the witness, was against his interest: for if the plaintiff, for whom he was called to testify, recovered, the witness would be liable over to his surety for the costs of this suit. But if this were not so, he would have no interest in the event of the suit: for as principal obligor, he would be liable to the plaintiff for the debt; or if the defendant paid it,,- would be liable over to him,- as his surety therefor. judgment' affirmed.  