
    
      P. S. Vandiver vs. Wm. P. Glaspy.
    
    Debt on a joint and several single bill against the surety: — JSeld, that the wife of the principal obligor was an incompetent witness for the defendant.
    The wife is an incompetent witness wherever the husband would be.
    In an action against the surety, the principal is not a competent witness for the defendant — he, the principal, over and above his equal liability to the creditor and the surety for the debt, being liable to the latter for tUe costs of the action against him.
    
      Before Whitner, J., at Anderson, Fall Term, 1853.
    Sum. pro. on a note under seal, for $25, executed by Edward Glaspy as principal, and the defendant as surety, dated the 25th March, 1851, and payable at one day. Edward Glaspy having left the country, the action was against the defendant alone. The defence relied on was infancy; and the wife of Edward Glaspy, and mother of the defendant, was offered as a witness. The plaintiff objected to her competency, on the ground that, in civil suits, the wife is an incompetent witness wherever the husband would be; and that, in this case, Edward Glaspy, the principal, would be an incompetent witness for the defendant, his surety, either to defeat the action, or to impair or invalidate the note.
    His Honor held that the witness was competent: and she proved that the defendant was not of age till August, 1851. Upon an intimation from the Court, the plaintiff took a non-suit, with leave to move this Court to set it aside.
    Vandiver, for appellant.
    
      Orr, Wilkes, contra.
   The opinion of the Court was delivered by

WhitNeb, J.

This was a sum. pro. against one of two joint and several obligors, and the wife of the party not sued was admitted, notwithstanding objection to her competency, to prove infancy. This was done on the authority of Knight vs. Packhard, 3 McC. 71 — the position being fully conceded that any objection well taken against the husband would be equally available as to the wife. As some doubt was expressed, the counsel were requested to prepare the report, if an appeal should be taken. From that, it now appears that these obligors stood in the relation of principal and surety, the party sued being the surety. The fact was not proved, and in that way may have escaped the notice of the Circuit Judge. It is said to have been then admitted and well understood between the parties. In the case of Cleveland vs. Covington, 3 Strob. 184, not adverted to heretofore, it was held that the principal, in addition to his equal liability to the payee and surety, would also be liable for the costs incurred by the latter, as a general rule. Unless some exception should be therefore made to appear, this would give the principal a superior interest to defeat the action.

The motion for a new trial is granted.

O’Neall, Wardlaw and Glover, JJ., concurred.

Motion granted.  