fication ought to have been pleaded. And as this was not done, the question as to the legal sufficiency of this defense was not referred to the arbitrators nor decided upon by their award.

It is said, however, that it was pleaded. This is true as relates to the pleadings filed to the original declaration. But an amended declaration was subsequently filed, and to this the plaintiff in error pleaded anew. The amended declaration was not an additional count to the former one, but was itself the entire declaration substituted for the former. And it was evidently so regarded by all parties at the time. For the plaintiff in error renewed his plea of not guilty, which he had put into the former one, omitting, however, his former pleas of limitation and justification; and these two must have been understood to be waived, for there was no replication to either of them, nor any issue joined upon them, formal or informal. The questions, therefore, which would have 89*] arisen on these pleas, *were not in issue --were not referred by the written agreement and, consequently, could not have been considered or decided by the arbitrators.

who did appear joined in the motion for the reference, received notice of the award after it was returned, and made no objection to the authority under which the arbitrators had been appointed. It is too late to make it here, even if it would have been available in the Circuit Court. But as the attorney on the record must have united in the motion for the reference, it is very clear that the objection would have been untenable there, as well as here.

We see nothing, therefore, in the pleadings or proceedings anterior to the order of reference, which can impeach the correctness of the judgment in the court below. It remains only to examine whether there is anything liable to objections in the proceedings of the referees or in the award returned by the umpire. *The authority of the umpire has been [*90 objected to, because it appears, by the affidavits filed by the defendant in error, that he was appointed before the referees had heard the evidence and discovered that they could not agree. But whatever doubts may have been once entertained upon this question, it is now well settled, both upon principle and authority, that the appointment is good. And indeed, it has been said by this court that it is more expedient to appoint the umpire in the first instance, as was done here, than to wait until the evidence was all heard and the arbitrators had finally differed. 8 Peters, 178.

Neither can the objection be maintained which has been taken to the power of the company under its charter to confer such a question of damage. The corporation was a party to the action in court, and it might lawfully take any step that an individual might take, under like circumstances, to bring it to final judg-pointed, the remaining question is upon the ment. And a trial by arbitrators, appointed by the court with the consent of both parties, is one of the modes of prosecuting a suit to judgment as well established and as fully warranted by law as a trial by jury.

The umpire, therefore, being regularly apsufficiency of his award. There was no dispute as to the title to the land, and upon the issue joined in the case; therefore, the only matter in controversy was, whether the acts complained of had been committed, and if they had, what damage was the defendant in error entitled to recover. This was the only matter in variance referred. The written agreement filed by the parties states the principles upon which they mutually agreed that the amount of damages should be calculated; and the award of the umpire ascertains and awards the amount upon the principles mentioned in the agreement. His award is upon the subject matter referred. an matter referred. It covers the whole controversy submitted to him, and nothing more; and upon that it is certain and final.

But independently of this principle and of the pendency of a suit, the thirteenth section of the act of Congress authorizes the canal company to agree to a reference. It provides that the president and directors may agree with the proprietor for the purchase, or for the use and occupation of the land for temporary purposes; and it does not confine the power to an agreement specifying a particular sum of money. On the contrary, it authorizes an agreement in general terms. And if the company agree to pay such sum as arbitrators may award, this agreement is as clearly within the words and intention of the law as if a specific sum had been fixed upon by the parties. We therefore see no objection to the reference in this case, nor to the agreement by which it was made.

There is, indeed, in the written agreement for the reference, a clause which provides that, upon the payment for the damages awarded, the defendant in error should convey to the company the land selected for permanent occupation; and the umpire has taken no notice We do not think it necessary to inquire of this agreement to convey. We think he very whether the power to direct the proceedings in properly omitted to notice it, for it was not the suit and assent to the reference belonged to put in issue by the pleadings, nor proposed to the president and directors, or to the stockhold-be referred in the argument filed. On the coners assembled in general meeting. The corporation, however governed in this particular, was the party defendant in court, and was represented by its counsel, and his acts are presumed to be authorized by the party in conducting the suit. This has long been the settled law of Maryland, which is the law of Washington County.

It is true that in this case the agreement for the reference is signed by the counsel who had appeared for the canal company in Alexandria, but who did not appear on the record in the Circuit Court for Washington. Yet the attorney

trary, the duty of the arbitrators was limited to the question of damage. The value of this land was indeed one of the items they were required to consider in calculating the amount of damage; but they had no power to award how or when it should be conveyed. Nor does the right of the canal company to the conveyance depend in any degree upon the award or direction of the arbitrators concerning it. Their right is absolute by the agreement, upon the payment of the damages awarded; and the conveyance may be enforced like any other right acquired by contract.

Upon the whole, we are of opinion that there is no error in the judgment of the Circuit Court; and it must, therefore, be affirmed, with costs.

Order.

This cause came on to heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, 91*] and was *argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per cent. per annum.

HENRY D. BRIDGES, John K. Mabray, James
N. Harper, and Stern Simmonds, Late Mer-
chants and Partners in Trade, under the
Name, Firm, and Style of Bridges, Mabray &
Company, Plaintiffs in Error,

V.

WILLIAM ARMOUR, Henry Lake, and Felix
Walker, Late Merchants and Partners in
Trade, under the Name, Firm, and Style of
Armour, Lake & Walker, Defendants in Er-

ror.

Plaintiff in action after discharge in bankruptcy is not competent witness.

A party upon the record, although devested of all interest in the event of the suit, is not a competent witness in a cause.

If a person be declared a bankrupt at a time when a suit is pending to which he is a party, his discharge would not be a bar to his liability for costs upon a judgment obtained subsequently to his discharge. His liability for costs, therefore, excludes him as a witness upon the ground of in

terest.

If the event of the suit may increase the effects of the bankrupt in the hands of the assignee, and thus increase the surplus which would belong to him, he is an incompetent witness.

THI

case HIS case was brought up by writ of error from the District Court of the United States for the Northern District of Mississippi. On the 26th of September, 1840, Bridges, Mabray & Co., gave their promissory note to Armour, Lake & Walker, or order, payable one day after date, for $3,158.69, being balance of book account, bearing interest at eight per cent. per annum, from the first day of August, 1840, until paid.

The note not being paid, a suit was commenced on the 12th of November following. As no question arises upon the pleadings, it will be unnecessary to refer to them. They resulted in several issues of fact.

It appeared on the trial that Walker had obtained a discharge under the Bankrupt Act, by which he was discharged from all his debts owing by him at the time of presenting his petition, to wit, on the 30th of Decem- [*92 ber, 1842. The discharge was granted on the 12th of May, 1843.

In one of the interrogatories in chief the question was put to the witness whether or not he had any interest in the event of the suit, and, if none, in what manner his interest had ceased. To which he answered that he had none, and that his interest ceased on obtaining discharge.

The counsel for the defendants objected to the admission of the deposition, on the ground that Walker was a party to the record, one of the plaintiffs in the suit; but the objection was overruled, and the evidence admitted, to which the counsel excepted. The plaintiffs had a verdict.

The cause was argued by Mr. Coxe for the plaintiffs in error, and by Mr. Chalmers for the defendants in error.

2. That even if his discharge, under the Bankrupt Act, could make him a competent witness, it was necessary to establish that fact, as preliminary to the reading of his deposition, and by independent proof.

Walker's name is still upon the record, and he is one of the defendants in error in this court. The general rule upon the subject is clear, and the exceptions are few. The plaintiff in error must bring himself within one of the exceptions. 1 Peters, 596. .

The case in 1 Peters C. C. R. 307, was overruled by this court in 12 Peters, 145, where it is said that the circuit decision is not to be sustained upon any ground.

The only exception to the general rule is in cases of tort where there are several defendants. The court will direct one to be acquita ted, if justice requires it, in order that he may be a witness. 10 Pick. 18; 4 Wend. 453; 1 Bayley S. C. 308; 10 Pick. 57; 2 Bayley, 427. As to the extinguishment of his interest by the bankruptcy, see 10 Wheaton, 367, 375, 384.

An insolvent party cannot be a witness, but a certificated bankrupt may, provided his name be struck out of the record. 9 Cranch, 153, 158.

Mr. Chalmers, for defendants in error:

The

The only question presented upon the record in this case is the competency of Felix Walker, a party to the record, whose deposition had been taken upon interrogatories, by consent, after his discharge under the Bankrupt Act of On the trial, in June Term, 1844, the plain- Congress of the 19th of August, 1841. tiffs offered in evidence the deposition of Walk- suit was commenced 20th of November, 1840, er, a coplaintiff on the record, taken in answer by Armour, Lake & Walker (the witness) to interrogatories and cross-interrogatories be- against plaintiff's in error; on the 12th of May, fore a commissioner in New Orleans, in pur-1843, Walker was discharged; and on the 24th suance of a stipulation between the attorneys; of *May, 1843, his deposition was taken, [*93 and in which the attorney for the defendants which, upon the trial, plaintiffs in error obagreed to waive any exception for want of is-jected to being read, upon the ground "that suing a commission, in due form, to take the testimony, or for want of notice of its execution to the defendants.

the said Felix Walker is a party to the record;" which objection was overruled by the court, and the deposition was read; to which opinion

of the court a bill of exception was taken, and upon it the case is before this court.

It will not be seriously urged that Walker, the witness, was incompetent on the ground of interest, he having received his discharge under the Bankrupt Act, by which his interest was extinguished and so far his competency restored. For whatever interest he may have had, it was extinguished when he was sworn, and could form no objection to his competency. 1 Phillips on Ev. 133, by Cow. & Hill; Tennant v. Strachan, 4 Carr. & Payne, 31; 1 Mood. & Malk. 377. Indeed, if it did, plaintiffs in error waived the objection by failing to make it when the deposition was taken it being known to them at the time. United States v. One Case of Hair Pencils, Paine's C. C. R. 400. So when a witness has been cross-examined by a party with a full knowledge of an objection to his competency, a court of equity will not allow the objection. Flagg v. Mann, 2 Sumner's C. C. R. 486. But the objection was to the competency of Walker as a party to the record.

be regarded as an open question in this court after what has already fallen from it.

It is true, as stated by the counsel in the argument, that in all the cases in which the question has arisen, the party was liable for the costs of suit, and therefore interested; but whenever the question has been presented, the language of the court has been uniform, that the witness was incompetent on the ground of his being a party on the record. De Wolf v. Johnson, 10 Wheaton, 367, 384; Scott v. Lloyd, 12 Peters, 145; Stein v. Bowman et al. 13 Peters, 209.

In Scott v. Lloyd the court referred to a case in 1 Peters's C. C. R. 301, where it had been held, that a party named on the record might be made a competent witness, by a release of his interest, and expressed its unqualified dissent; and in Stein v. Bowman et al. 13 Peters, 209, in which Bowman, a party, had been admitted, the court, after noticing his liability for costs, remarked, that if he had been released, or a sum of money sufficient to cover the costs of suit brought into court, his compeIt is a general rule in all common law courts, tency would not have been restored. that a party on the record cannot be admitted The exclusion is placed on the ground of to testify; the reason of this rule is the inter-policy, which forbids a party from being a est of the party called, and wherever that can witness in his own cause, and that this would be extinguished the rule ceases. In New York be the practical effect and operation of a rule the rule, it seems, excludes the party without regard to the question of whether he be interested or not; but see Stein v. Bowman, 13 Peters, 209, 219, Worrall v. Jones, 7 Bing. 395, Aflalo v. Fourdrinier, 6 Bing. 306, Bate v. Russell, 1 Mood. & Malk. 332, Hart v. Heilner, 3 Rawle, 407, Scott v. Lloyd, 12 Peters, 145, 149, Henderson v. Anderson, 3 Howard, 73, Smyth v. Strader, 4 Howard, 404.

In the case of Willings v. Consequa, 1 Peters's C. C. Rep. 307, Washington, J., says "the general rule of law certainly is, that a party to a suit cannot be a competent witness. But it is equally so, that the interest which that party has in the event of the suit, both as to costs and the subject in dispute, lies at the foundation of the rule, and when that interest is removed the objection ceases to exist." Mills, J., in Lampton v. Lampton's executors, 6 Monroe, 617, 618. Upon a full view of all the cases,1 the counsel for defendants in error respectfully contends, that the District Court did not err in permitting the deposition of the 94*] party, Walker, to be read to the jury, upon the ground of interest, or being a party, and that if incompetent for either cause the objection was waived by not having been made at the taking of the deposition.

of evidence, which would enable a party to qualify himself for a witness by releasing his interest in the suit. Though nominally discharged by the release, he would, usually, be the real and substantial party to the suit in feeling, if not in interest; thereby holding out to litigants temptations to perjury, and to the manufacturing of witnesses, in the administration of justice.

The question is one in respect to which different courts have entertained different opinions, and we admit that the argument in favor of the admission of the party, upon the general principles of evidence governing the competency of witnesses, is plausible, and not without force. But the tribunals which maintain the competency of the party, if devested of interest, still hold that he cannot be compelled to testify, and, also, that he cannot be compelled to testify when called against his interest; which, upon general principles, if consistently carried out and allowed to govern the question in the admission of the party, would lead them to an opposite result. They should be compelled to testify; for if the admission is *placed, [*95 as it undoubtedly is, upon principles applicable to the admission and rejection of witnesses generally, in the cause, and the party to be regarded as competent when without interest, or indifferent, or when called against his interests, then, like all other witnesses, he should be subject to the writ of subpoena, and to the comWhether a party on the record, devested of pulsory process of the court; and not left at all interest in the result of the suit, and there-liberty to withhold or bestow his testimony at fore unexceptionable on that ground, is a com- will. petent witness or not in the cause, can scarcely There can be no distinction in principle, in this respect, in favor of a party to the record, if allowed as a witness at all; and the only ground upon which the court can stop short of going the length indicated, is, by giving up general principles, and placing itself upon policy and expediency, as upon the whole best subserving, in the instances mentioned, the interests of justice, and of all concerned in its ad

Mr. Justice Nelson delivered the opinion of

the court:

1. See those collected in 2 Phillips on Ev. by Cowen & Hill, notes, pages 134-136, 260-266; Haswell v. Bussing, 10 Johns. 128: Schermerhorn v. Schermerhorn, 1 Wend. 125; citing 3 Esp. and 3 Campbell: Supervisors of Chenango v. Birdsall, 4 Wend. 453; Duncan v. Watson, 2 Smedes & Marshall, 121; 1 Bing. 444: 6 Binney, 16; 4 New York, 24; 2 Day, 404; 11 Mass. R. 527; 12 Ibid. 258; 16 Ibid. 118; 3 Harr. & McH. 152; 3 Starkie on Ev. 1061, note.

ministration-a ground which has been sup- | adjudged by this court, that the judgment of posed, by those holding a different opinion upon the question, quite sufficient to justify the entire exclusion of the party.

have been proved under the act. Act of Con- Surety's surety who pays the debt may maingress, August 19, 1841, sec. 4; 5 Statutes at Large, 443; Haswell v. Thorogood, 7 Barn. & Cress. 705; Brough v. Adcock, 7 Bing. 650. His future effects, therefore, would have been liable.

said Thornton brought suit against him in Court of the United States for the District of Baltimore County Court, in the State of Mary- Maryland, and on the declaration was indorsed land, on the 18th of July, 1839; while the writ a direction to the clerk to enter judgment for was in the hands of the sheriff, and before the the amount of the damages in the narration, service thereof on the defendant, it was agreed to be released on payment of $2,669, with inbetween Smith and the attorney of Thornton terest from the 1st of January, 1840, and costs, that Smith should be permitted on his honor and stay of execution until the 1st of July, to go into an adjoining county to see his 1841; which was signed by the attorneys for friends, to procure security in order to relieve the plaintiff and defendant. That, accordinghimself from said suit. He went and returned; | ly, at the next term of said court, in Novemand on the 29th of July, 1839, in the State ber, 1840, on the 4th day of the month, said aforesaid, gave two promissory notes to judgment was entered, and the suits against Thornton, dated August 10th, 1839, one for McCaleb, in which Lemmon was bail, accord$2,678.90, payable on the 1st of April, 1840, ing to an arrangement between the counsel of and the other for $2,669, payable on the 1st of Thornton, McCaleb, and Hall, were dismissed, June, 1840; both of which notes were indorsed having been countermanded on the 1st of Sepby a certain James S. McCaleb and a certain tember, 1840, in consequence of an agreement James Kent, as securities for the said Smith; made between said parties, Thornton, McCaleb, and upon receiving these notes, so indorsed, and Hall, previous to said countermand, that Thornton discontinued the suit against Smith. said suit should be docketed by consent, and These notes were not paid at maturity, and judgment confessed, as was afterwards done were protested for nonpayment; and in June, in the manner above stated. 1840, Thornton brought suit on both of them against McCaleb, the indorser, in Baltimore County Court, upon which he, McCaleb, was arrested, and being in the hands of the sheriff, he applied to a certain Richard Lemmon, of the city of Baltimore, to become his bail. McCaleb was the son-in-law of Henry A. Hall, the plaintiff, who resides in the State of Maryland, about forty miles distant from the city of Baltimore, and Lemmon being an intimate friend of the said Hall, and knowing McCaleb to be his son-in-law, agreed to become his bail, from the confidence he had that the plaintiff would save him harmless; and he entered bail accordingly in both of these suits.

The judgment was confessed in the Circuit Court, in order to create a lien upon the real estate of Hall, which being situated in a part of Maryland which was not within the jurisdiction of Baltimore County Court, it was supposed that a judgment in that court would not be a lien upon it.

Upon the confession of this judgment in the Circuit Court, the notes above mentioned were delivered to Hall by the attorney of Thornton; a part of this judgment was paid to the attorney of Thornton, by a draft of Smith in favor of McCaleb, upon a house in New Orleans, and the balance due upon it was paid by Hall on the 30th of June, 1841. James S. McCaleb died in the State of Mississippi, of which he was a citizen, in the summer of 1842, and letters of administration on his estate were afterwards, on the 28th day of November, in the year 1842, granted by the proper authority in that State to Jonathan McCaleb; and on the 20th of May, 1843, the administrator assigned to Hall, the plaintiff in this case, the notes aforesaid.

That at the first interview Lemmon afterwards had with the plaintiff, the latter introduced the subject, and without waiting for any application from Lemmon, assured him that he, the plaintiff, would save him harmless; and Lemmon having entire confidence in his verbal promise, did not ask any written security. Pending these suits Smith paid part of one of the notes, and before judgment was obtained upon either of them, Hall paid the balance of The notes, with the several indorsements and the last mentioned note, and upon an agree-assignments thereon, are as follows, to wit: 98*] ment made with the attorney of *Thorn- $2,669. Baltimore, August 10th, 1839. ton, a suit by Philip Thornton against Henry On the first day of January next, I promise Hall, the plaintiff, was docketed by consent on to pay to the order of James S. McCaleb, the 7th of September, 1840, in the Circuit twenty-six hundred and sixty-nine dollars, for

Co-sureties assume the same risk, and stand relatively to the principal in the same situation, neither obtaining any benefit by the transaction, but each equally subjecting himself to responsiMcPherson v. Talbott, 10 Gill & J. 499.

Nelson v. Williams, 2 Dev. & Bat. Eq. 118; War-
ner v. Beardsley, 8 Wend. 194; Selfridge v. Gill,
4 Mass. 95; Craythorne v. Swinburne, 14 Ves.
162; Parsons v. Briddock, 2 Vern. 608; Wright v.
Morley, 11 Ves. 12; Harrison v. Glossop, Coop.bility.
61; Folliott v. Ogden, 1 H. Black, 624.

As a general rule a surety in a bond is not liable beyond the amount of the penalty, although the principal and interest due by the condition of the bond exceeds that amount. Mower v. Kip, 6 l'aige, SS.

In an ordinary case of suretyship for a debt which is justly due, if the principal debtor neglects to pay it at the time stipulated in the contract, the surety may file a bill against such a debtor and the creditor to compel the former to pay the debt and the latter to receive it, and thus to relieve the surety from further liability. Gibbs v. Mennard, 6 Paige, 258; Bishop v. Day, 13 Vt. 81. Nothing short of a written agreement can render one liable as a surety under the provisions of the statute of frauds. Phelps v. Garrow, 8 Paige, 322.

The securities of a guardian are liable to the full extent of his obligation. M'Alister v. Olmstead, 1 Humph. 210.

A surety who pays the debt of his principal has the same rights against his co-surety that he has against the principal. Woods V. Creaghe, 2 Hogan, 50.

Obligation of surety by the common law, not accessorial and consequential only; he is equally bound. It is his duty as well as that of the principal to discharge the obligation when due. Tudor v. Goodloe, 1 J. B. Moore, 323.

A surety may in equity compel the principal to relieve him by paying off the debt, and is entitled to the benefit of any security which the creditor may have taken from the principal debtor. Pride v. Boyce, Rice's Eq. 275.

Joint sureties are bound, as between themselves, to contribute equally to discharge the debt for which they are jointly holden, and if one of them pays the whole, he is, in equity, subrogated to all the rights and remedies of the original creditor for the payment of his debt, not only as against the principal debtor, but also as against the co-sure