
    Ross and Wife v. Wells.
    tine of the makers of a note is not a competent witness to invalidate it.
    Assumpsit in the Circuit Court of Wilcox county, by Wells against Ross and wife on a promissory note made by Mrs Ross, while sole and William J. M‘ Carro 11 payable to Wells. The writ iss ied against Ross and wife and M1 Carroll jointly, not being executed on M'Carroll, the suit was discontinued as to him. Issues on the pleas of non assumpsit, failure of consideration and fraud in obtaining the note. Verdict and judgement for the plaintiff.
    On the trial, the defendants offered IVTCarroll as a witness, to prove that the consideration of the note was three negro girls, sold by plaintiff to Mrs Ross, and warranted .to be sound and health}., and that one of them was unsound and of no value. The Circuit Court decided that he was incompetent; to which the defendants excepted, and here assigned this matter as error.
    Gordon, for plaintiffs in error.
    The noie was for $950, the verdict for $330. It is then fair to conclude that two of the negroes had been paid for, and that the evidence was to shew an entire failure of consideration. Rut there was issue also on the plea pf fraud, and the evidence would have went to sustain this plea; a partial failure of consideration is a good defence in this action. 
    
    But as to the main question: The witness was compe-tel1t unless his testimony went to impeach the note in the hands of an innocent holder, or the verdict and judgement >n this case would be evidence for him. The decisions in England and the United States are not uniform m excludtng the testimonv of a loint maker not sued, to prove the note void.  It is true, a joint maker is not competent to prove that the note in the bands of the en* dorsee was originally void, but he may prove that it has jjeen 
       Qr altered, 
       or transferred after due, 
       not property of the holder, void for want of a stamp ; 
       that a baud was practised on his co-maker, or in fine any thing which does not establish fraud in the witness. 
       The note here was in the hands of the payee against whom the fraud is alleged, and not in the hands of an innocent endorsee.
      
    
    Thorington, for defendant in error.
    The evidence was to prove a partial failure of consideration. As to this point, I will content myself with saying that the law is well settled against the position taken on the other side.
    As to M‘•Carroll’s competency, he was incompetent to she™ that the note in its creation was void. The general Pol‘cy the country forbids that any one should join as one of the makers in the note, and afterwards be admitted by his testimony to impeach it.  Ihe cases cited on the' other side are, where makers or endorsers have been per-mitred to testify as to facts whicn occurred after and not before thev had put their names to the note. But was not the witness interested ? In an action against him on the note, would not a verdict obtained by the influence of his testimony in the case against Ross and wife, have had its effect? But he was a joint maker, and on a recovery against the other maker they might call on him to contribute, and might use the record as evidence against him.
    
      
      
         peak’s cas. 6x. ííias/iio.' 261‘ 7 John.385.
    
    
      
      im-m3oo.ica. ch.'iiiSs.&c. 2.T°hu. io7. i4
    
    
      
      . 3 Mass. 27
    
    
      
      . 7 Mass. 601.
    
    
      
      icain. 258. io jom.231. may
    
    
      
      . 7 Mass. 199.
    
    
      
      . 7 Term 601.
    
    
      
      MyersvParmer
    
    
      
      's «¡John 352. i Philips’ Ev. 233. Peaks’Ev.4is47.
    
    
      
      ^Tmu 34,¶6: 7 Black593081-12 mi.i94.2John, i cains 258,
    
   JUDGE TAYLOR

delivered the opinion of the Court.

We are of opinion that tne Circuit Court was right in excluding the witness, and that one maker of a note can-pot be introduced by another, to invalidate the instrument.

Let the judgement be affirmed.

Judge Saffold not sitting.  