| Tex. | Jul 1, 1859
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-
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.