
    James Payne vs. Harrison Devinal.
    In an action upon two joint promissory notes executed by a principal and surety, against the latter only, the defendant offered to show that the notes were two of a series of four given for the future occupancy by the principal, for a year from their date, of a hotel, and that the hotel had been before the expiration of the year wholly destroyed by a tornado ; held, that the testimony was inadmissible as being irrelevant ; the contract for the future occupancy of the hotel for a year, though in parol, under our statute was a valid lease ; and as there was no reservation by the makers of the note against responsibility in case of accident, neither law nor equity could relieve them from their express agreement to pay the rent; the surety being in such case in no better condition than the principal.
    The wife of a deceased principal in a note is not a competent witness for the surety in an action on the note against him, to prove payment of the note ; if the verdict went against the surety, her husband’s estate would be liable for the amount to him and her distributive portion thereof would thus by a verdict in the surety’s favor be swelled.
    In error from the circuit court of Adams county; Hon. Stan-hope Posey, judge.
    In October, 1840, Harrison Devinal sued James Payne upon two notes for $1250 each; dated July 15, 1839, one due nine, and the other twelve months after date, executed jointly by Thornton Alexander as principal, and Payne as surety, payable to Orland Lane, and by him indorsed to Devinal.
    The defendant plead non-assumpsit and payment. Three verdicts below were rendered. The first for the plaintiff was set aside at his instance; the second for plaintiff, set aside at defendant’s instance; and the third likewise for plaintiff, for the full amount sued for.
    On the trial, after the plaintiff had read the notes sued on, the defendant offered to prove, by Samuel Cottop, that they were two of a series of four of like .amount, given on the day of their date by the makers to Lane, in consideration of future occupation by Alexander of a house under the hill, at Natchez, known as the Steam-boat Hotel, for twelve months, from the date of the notes. That Alexander, on the day of the date of the notes, went into possession of the hotel, and had occupied it up to the 7th of May, 1840, when the hotel was totally destroyed by the tornado of that date; and that Alexander had paid the two first ^f the notes. The testimony was objected to; 1. Because it denied the consideration of part of only one of the notes sued on, and was therefore not admissible under the pleadings; and, 2. Because the destruction by tempest of the hotel did not discharge the notes. The objection was sustained.
    The defendant then offered the deposition of Almira Eliza Alexander, taken under interrogatories, to prove the payment of one of the notes sued on ; in answer to one of the cross interrogatories she stated, that she was the widow of Thornton Alexander. On this account, the plaintiff moved to exclude the deposition. The defendant, in support of it, introduced Lewis Saunders, who proved that he had been informed by Thornton Alexander, and by Almira in the lifetime of Thornton, certainly by one of them, and as well as he could recollect, by both, on occasion of some business transaction that he had with them, as a lawyer, shortly before the death of said Thornton, that they were not man and wife, and that his (Alexander’s) wife was still living in Yirginia or Maryland. The court, notwithstanding, excluded her deposition, on the score of interest. The defendant excepted, and sued out this writ of error.
    Eustis, for plaintiff in error.
    1. The court ruled out the testimony of Cotton, on the ground that it denied the consideration of but one of the notes; that it was improper under the pleadings, and that the destruction of the house by the tornado would not discharge the notes.
    If the first ground were true, we are still entitled to show either note discharged, either count of the declaration unfounded ; as to the second ground, the failure of consideration is proper evidence under non-assumpsit; as to the third ground, the court made no distinction between the case of a mere promise to pay a certain sum for future occupation, and the case of a lease by deed with covenants.
    In the latter case, each party stands upon the covenants contained in the lease. The one party is to pay rent under all circumstances not excepted in the lease; the other party is liable on his covenants, for not keeping the house in tenaniable condition. Even against such covenants courts of equity have given relief.
    But in this case, there was no lease, either by deed or in writing; consequently, no room for the rigor of the common law in relation to leases. Brown v. Quilter, Ambl. Part 2, p. 620.
    2. The testimony of Almira Alexander was ruled out, because in answer to a cross interrogatory, she stated that she was the widow of Thornton Alexander. This was disproved by the testimony of Lewis Saunders, and the deposition should have gone in, leaving her credibility to the jury. She may have supposed herself the widow, but if not so de jure, the weight of authority is, that she should not be excluded. Batthews v. Ga-lindo, 4 Bing. 610 ; S. C. at N. P., 3 Carr. & Payne, 238; 1 Moore & Payne, 565, S. C.; 5 City Hall Rep. 141; Meunier v. Couet, 2 Mart. Louis. Rep. 56.
   Mr. Justice Thacher

delivered the opinion of the court.

This action of assumpsit is founded upon two promissory notes made jointly and severally by Thornton Alexander, who has deceased since the institution of the suit, and the plaintiff in error, James Payne. Non-assumpsit and payment are pleaded to the declaration, which contains a count upon each note and a money count.

Two errors are assigned : first, the refusal of the circuit court to permit the testimony of Samuel Cotton, a witness, to go to the jury; and secondly, the ruling out from the evidence the deposition of Almira E. Alexander.

The testimony of the former witness went to show that the notes were two of four, given in consideration of future occupation by Alexander of a hotel in the city of Natchez, for one year from the date of the notes, which was July 15, 1839; that Alexander wpnt into possession of the hotel at the date of the notes, and so continued until the 7th of May, 1840, when the hotel was totally destroyed by a tornado; and that Alexander had paid two of the four notes. The objections to this testimony were, that it was evidence of a denial of the consideration of a part only of one of the notes; that it was improper testimony in the state of the pleadings; and that the destruction of the hotel by the tornado was not a legitimate defence to the notes, or any part of them.

The main question presented in this case is, whether, under all the circumstances, the whole amount agreed to be paid for the occupation of the hotel is recoverable from the makers of the notes. The contract between Alexander and the payee of the notes, as would have been disclosed by Cotton’s testimony, was, in effect, a lease for twelve months of a certain property, the rent whereof was the sum embraced in the several notes. A contract for the use and occupation of property for such a period, made with one authorized to so contract, is under our statute a valid lease, even if verbal. H. & H. 370, sec. 1. Such being the case, the notes constituted an express agreement to pay, in which there is no reservation by the makers against responsibility, in case of accidents, and the rule is now settled that neither law nor equity will interfere in favor of a tenant, against'his own express agreement to pay rent. 3 Kent, 465, &c. The fact that the agreement was not under seal, constitutes no exception to the rule; and the surety upon the notes, although not the tenant, has, by his contract, made himself liable as such. Thus Cotton’s testimony would have been irrelevant, since it could not have changed the legal responsibility of the makers of the notes, and it was therefore well excluded.

In the deposition of Almira E. Alexander, in answer to a question, upon cross-examination, she declared herself to be the widow of Thornton Alexander. An attempt was made to show by other testimony that such was not the fact, but this attempt was far from being conclusively successful. She was incompetent, therefore, on the ground of interest, to prove a payment; because the estate of her deceased husband might be called upon for contribution. She cannot, as a distributee of the estate, be permitted to testify in any case where her testimony might swell the amount of the estate. The exclusion of the deposition was in accordance with law.

The judgment must be affirmed.  