delivered the opinion of this court.

This suit was originally instituted by the appellants against the appellee and George H. Buckey, as partners, trading in the name of Culler &• Buckey, on a contract alleged to have been made by the firm.

The appellee alone was summoned, Buckey being returned “non est.” In the progress of the cause, Buckey was called as a witness for the plaintiffs, for the purpose of proving the terms of the contract. The defendant objected to his competency, and the Circuit Court sustained the objection, and the question presented for our decision by the first bill of exceptions is, whether the said witness was properly excluded as incompetent.

No ground of objection to the competency of the witness is stated in the record, and the cause has not been argued in this court on behalf of the appellee.

It seems to us that the testimony ought to have been received. So far from being objectionable on the ground of interest, his evidence tended to charge himself; he was directly interested in defeating the action; for in the event of the plaintiffs’ recovery, the defendant would be entitled to contribution from the witness.

The case of Blackett vs. Weir, 5 Barn. & Cress., 385, (11 Eng. C. L. Rep.,) is very analogous to this. That was an action of assumpsit for goods sold and delivered; the general issue was pleaded, a witness called by the plaintiff to prove the defendant’s liability, stated on his voir dire that he, the witness, was jointly liable; it was held by the Court of King’s Bench “that this did not render him incompetent.” *9See, also, Hudson vs. Robinson, 4 Maule & Selw., 475, and Worrell vs. Jones, 7 Bing. Rep., 395. This last case was cited with approbation by the Court of Appeals in 3 Gill, 436, as “containing the true and sound doctrine on this subject.”

The second bill of exceptions is founded upon an instruction granted at the instance of the defendant, “that the plaintiffs were not entitled to recover, because of a variance between the contract alleged in the declaration and the evidence in the cause.” As we have already decided that the testimony of George H. Buckey ought to have been admitted, it is not material to determine the propriety of the court’s instruction, as the case stood without Buckey’s evidence. Upon a careful examination of the record, and looking at the whole evidence as given and offered, we have discovered no material variance between the allégala and probata.

Judgment reversed and procedendo awarded.