
    *Ford v. Nichols & Snyder.
    April Term, 1848,
    Richmond.
    Bill of Exchange — -Witnesses—Drawer.—A drawer of a bill for whose accommodation it has been accepted, is not a competent witness for the acceptors, in an action thereon by the holder against them.
    . This was an action of assumpsit brought by Nichols against Ford & Snyder, upon their acceptance of a bill of exchange drawn upon them by J. Richards, payable to his own order, and by him endorsed to Nichols. At the trial upon the general issue, a verdict and judgment were rendered for the plaintiff.
    The only question presented by the record is as to the competency of Richards, the drawer of the bill, to testify in behalf of the acceptors. They offered his deposition, which states, that there was an understanding between Ford & Snyder and himself, that he might draw on them for his accommodation; and that they would accept. That the bill in question, was placed in the hands of Messrs. Cohen & Brothers, to be sent to Ford & Snyder for their acceptance, and when accepted by them, to be placed in the hands of Nichols; and that Nichols was to raise money on the bill for Richards’ accommodation; but that the bill was never discounted. It being conceded that Richards, whose deposition was offered, was the drawer of the bill on which the action ■ was brought, and that the bill was accepted for his accommodation, the Court, on the plaintiff’s motion, excluded his deposition from the jury; whereupon the defendants excepted, and obtained a super-sedeas to the judgment.
    Cooke, for the appellant.
    The idea of the Judge was,- that if Richards’ evidence defended Nichols’ action, he (Richards), would be answerable over to Nichols, in an ^action brought by Nichols against him as drawer or as endorser, only for the amount of the bill, and not for the costs incurred by Nichols in the fruitless prosecution of the suit against Ford & Snyder, the acceptors. Whereas, if Nichols succeeded in. the suit against Ford & Snyder, on their acceptance, Ford & Snyder could recover over against Richards, not only the amount of the bill paid by compulsion of law, to Nichols, but also the costs which Nichols had recovered of them, they having been subjected to the payment of those costs, (as well as of the debt,) by' Richards’ failure to do what he ought to have done, viz: to place funds in their hands in due time to meet their accommodation acceptance in his favour. From which it is apparent, that Richards is interested in the result of this suit, and interested in Ford & Snyder’s success, to the amount of the costs involved in this suit.
    The Judge decided on the authority of Jones v. Brook, 4 Taunt. R. 464. And this case and others, do unquestionably sustain the Judge’s decision.
    But on the other hand, this objection to the competency of a witness so situated, by reason of his being liable in one result to pay the debt only, to one party, and liable in the other result, to pay to the other party, not only the debt, but the costs, has been overruled in several English cases. The objection was made and overruled in Ilderton v. Atkinson, 7 T. R. 480. The same objection was made and overruled in Birt v. Kershaw, 2 East’s R. 4S8; and in Barber v. Gingell, 3 Esp. R. 60, a witness was admitted as competent, who stood precisely in the situation of Richards in this case. There are other cases to the same effect.
    The two cases preceding the last named, overrule the objection to the competency, on the ground, that the witness (throwing the costs out of view), stands indifferently between the parties, and that the policy of the law will *not permit the entire suppression of his evidence on so small an objection as his liability for costs in one Court and not in the other.
    Such being the unsettled state of the doctrine in England, it is for this Court to decide which set of cases is right, no case under the lex mercatoria having arisen in Virginia.
    Robinson, for the appellee.
    The counsel for the defendant in error insists that the decision was plainly right and ought to be affirmed. The drawer was interested to defeat the action, since if the holder succeeded against the acceptors, the acceptors would have the right to make the drawer pay not only the money but also all damages the acceptors might sustain by being sued for it: the principle being that the drawer of an accommodation bill is bound to indemnify the acceptors against the consequences of an acceptance made for the accommodation of the drawer. On this ground the Court of Common Pleas held the drawer of an accommodation bill to be an incompetent witness for the acceptor in Jones v. Brooke, 4 Taunt. R. 463. And this case has been since constantly followed. Hardwick v. Blanchard, 5 Eng. C. E. R. 480; Starkie on Evi. part 4, p. 301 and p. 752. The same rule is acted on in other cases where there is an implied undertaking to indemnify, and where consequently the costs, if the plaintiff succeeds, will ultimately fall upon the witness. Edmonds v. Lowe, 15 Eng. C. E. R. 250; Jones v. Raine, 4 Rand. 386; Riddle v. Moss, 7 Cranch 206.
    The authority of the case of Jones v. Brooke, is recognized by the Supreme Court of New York in Hubbly v. Brown, 16 John. R. 70. And it is also recognized and acted upon in Smith v. Thorne, 9 Watts’ R. 144-5.
    In the present case, the evidence offered is not only interdicted by the rule adopted in Jones v. Brooke, and by *the principle which the Court of Appeals laid down in Jones v. Raine, but it is also forbid by the decision in Gilliam v. Clay, 3 Eeigh 590.
    
      
      See monographic note on “Jlilis, Notes and Checks” appended to Archer v. Ward, 9 Gratt. 622.
    
   By the Court.

Affirm the judgment.  