delivered the opinion of the court.

This suit is brought .on an instrument of writing wherein the defendants promised jointly and. severally to pay to the plaintiff three hundred dollars, payable in good, merchantable cotton, to be delivered at Monroe at the market price.

This instrument was signed by Wm. Richardson, Levi Guice, and John McCormick, who severed in their answers, and Guice claimed and obtained a separate trial. The jury to whom his case was submitted, found a verdict in his favor, and judgement was rendered in pursuance of said verdict.

The case, as between the plaintiff and Richardson and McCormick, was submitted to another jury who found a verdict against the former, and in favor of the latter, and judgements were rendered according to the verdict. From the judgements thus rendered the plaintiff appealed.

The defence set up by Guice and McCormick rests on allegations in their answers which, if true, show that although they signed the note in question, they only consented to assume the situation of sureties in relation to Richardson, and that they agreed to take on themselves this obligation only on condition that one Liles should sign the note with them, which he refused to do; all of which circumstances being known to the plaintiff. The instrument, executed as above stated, was staked by Richardson on a horse race with the plaintiff, and won by the latter. After Guice was discharged by the verdict and judgement pronounced in his separate trial, he was offered as a witness for McCormick, and was admitted to testify, to which a bill of exceptions was taken. We are of opinion that after acquittal the witness was competent, and that the circumstances in which he appeared could only affect his credibility.

The testimony adduced on the part of the defendants, who succeeded in the court below, seems to have convinced two juries of the truth of the facts alleged in avoidance of their apparent promise and obligation, and we are unable to find any thing in the record, to lead us to a different conclusion on the facts of the case; if they be true, the obligation of these defendants, resulting from their promise, was conditional, i. e. to take effect only after the signature of Liles to be affixed to the note, which never was done.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be affirmed, with costs.