Vandiver v. Glaspy , 41 S.C.L. 14 ( 1853 )

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.