
    M. B. Bennett, Ex’r, v. Josiah Dowling.
    The liability of a witness, to one of the parties to a suit, for costs, makes his interest preponderate in favor of that party, though otherwise balanced. When the surety upon a promissory note is sued, the principal is liable to him for the costs he may have to pay by reason of such suit.
    Where the bill of exceptions in the record, contains a statement of all the facts given in evidence, according to the certificate attached thereto by the judge, and, (as must be presumed,) is intended to embrace both a statement of facts and bill of exceptions, and it appears from it, that the judgment was obtained by reason of the admission of improper testimony, (though the bill of exceptions be not signed or agreed to by the parties, or their counsel,) the judgment will be reversed.
    Eekob from Lavaca. Tried below before tbe Hon. Fielding Jones.
    A bill of exceptions was taken by the plaintiff, upon the trial, as follows, to wit: “ This day came on this cause for trial, and “the plaintiff read his petition and note sued, and closed his “ case. And the defendant introduced as evidence the deposition of L. W. Layton, as follows,” (here followed the deposition,) “which was read as evidence, to which the plaintiff “ excepted, which exception of the plaintiff was overruled. The “ above was all the testimony in the case. To which ruling of “the court, overruling the exceptions to the reading of the “depositions of said L. W. Layton, the plaintiff excepts, and “prays that this his bill of exceptions be signed and sealed by “the court, which is accordingly done.
    “F. Jones, [seal.] “Judge 10th Jud. Diet.”
    A jury was waived, and the case submitted to the judge, who gave judgment for the defendant. The other facts are apparent from the opinion.
    
      Allen and Hale, for plaintiff in error.
    
      R. M. Tevis, for defendant in error.
    It is first submitted, whether the court will revise this case in the absence of a statement of facts. That the bill of exceptions, signed by the district judge, does not meet the requisitions of the statute respecting a statement of facts, is clear. (Hart. Dig. Art. 788.)
    If the admission of the testimony of Layton was erroneous, still there may have been other testimony sufficient to warrant the judgment. And in the absence of a statement of facts, it will be assumed by this court that there was such testimony.
    Layton’s interest was balanced. If'-the judgment should be against Bennett, Layton would be liable to McDermott’s estate. If the judgment should go for Bennett, Layton would be liable to his surety, Dowling.
   Roberts, J.

This is a suit by Bennett, as sole executor, &c., on a note executed by Layton and Dowling. The depositions of Layton, proving a settlement of the debt by him with Bennett, were read in evidence, notwithstanding .the objection of Bennett, made in writing before the trial, “that the said “Layton, being the principal in said note, as shown from his “depositions, is incompetent to testify, to release or discharge “his surety, Dowling, to whom he would be liable for the debt “and costs, in case the plaintiff succeeds in this case, and “against whom the record in this suit could be used.” The depositions do show, that. Dowling signed the note as surety for Layton. There is no evidence that Dowling released Lay-ton from his liability to refund to him either the debt or the costs of this suit.

The exceptions to the testimony of Layton being overruled, the question is, was he a competent witness, under these circumstances, for Dowling, his surety, to prove that the debt had been paid or settled?

It may be said, that Layton could not exonerate himself from his liability to pay the debt, by his own evidence; that if Dow-ling gained the suit by his evidence, he, Layton, would be still liable to pay the debt, as principal obligor, at the suit of Bennett; and if Dowling lost the suit, and paid the debt, he, Lay-ton, would be liable to refund tbe debt to him, as bis surety, and that thereby bis interest is equally balanced. This view of tbe subject leaves out tbe important consideration, that if Dowling should lose this suit, Layton’s liability would be increased to tbe extent of tbe costs of this suit, tbe reimbursement of which, as well as of tbe debt, Dowling could exact of bim.

This was made tbe controlling consideration, in a similar case, in tbe Supreme Court of tbe United States. Chief Justice Marshall, in delivering the opinion, says, “but tbe principal circumstance was, that Welch’s (tbe principal’s) liability “would be increased to tbe extent of tbe costs of this suit, if “tbe judgment should be against Moss,” (tbe surety.) (Riddle v. Moss, 7 Cranch’s Rep. 206.)

Upon tbe same subject, the Supreme Court of Alabama say, that “tbe suit being against tbe surety to tbe note, tbe prin- “ cipal was responsible to bim, not only for tbe amount of tbe “note and interest, but could also be required to reimburse “tbe surety tbe costs which be might be compelled to pay, “and was therefore not a competent witness for tbe surety, “without a release from liability from costs.” (Richards v. Griffin, 5 Ala. Rep. 196; see also 1 Starkie on Ev. 113.)

We are of opinion that tbe depositions should have been excluded.

Tbe bill of exceptions, found in tbe record, under tbe band and seal of tbe presiding judge, contains a full statement of all tbe facts given in evidence, according to tbe certificate attached thereto, and as we must presume, was intended toj embrace both a statement of facts as well as a bill of exceptions. Judgment reversed and cause remanded.

Reversed and remanded.  