witnesses. the payment of a bill, has been discharged by his Competency of bankruptcy and certificate from liability to pay the amount of the bill, he is a competent witness, because he is also thereby relieved from liability to costs'. In an action against the acceptor of a bill the drawer is a competent witness either for the plaintiff to prove the hand-writing of the acceptor, or for the defen dant to prove that the plaintiff discounted the bill upon an usurious consideration, or that it has been paid. And the circumstance of the witness being 'Brend v. Bacon, 5 Taunt. 183. Dickenson v. Prentice, 4 Esp. Rep. 32.-Barber v. Gingell, 3 Esp. Rep. 62.-Bayl. 242. Dickenson v. Prentice, 4 Esp. 32. This was an action against the defendant as acceptor of a bill, the defence intended to be set up was, that the acceptance was a forgery; to prove defendant's handwriting, the plaintiff called the drawer, it was objected that having drawn the bill, the forgery of the acceptance could only be imputable to him, and that as he might be committed for a capital offence if the forgery was established, he had such an interest as ought to disqualify him. But Lord Kenyon said, this was matter of observation as to his credit; but no objection to his admissibility. He was admitted and the plaintiff had a verdict. 3 Rich v. Topping, Peake R. 224.-1 Esp. Rep. 176. S. C.-Brown . Ackerman, 5 Esp. Rep. 119.Bayl. 242. Rich v. Topping, Peake, 224. The drawer himself had indorsed the bill to the plaintiff for an usurious consideration, he had a release from the acceptor, which Lord Kenyon thought was necessary. The learned reporter, however, in a note on the case, considers that the witness stood indifferent, and ought to have been received even without a release, and in Brard v. Ackerman, 5 Esp. Rep. 119. the drawer (under precisely similar circumstances) was admitted without a release, at least it is not stated that he had any. Humphrey. Moxon, Peake Rep. 52.-Charrington v. Milner, Peake Rep. 6.-Bayl. 242. Humphrey v. Moxon, Peake Rep. 52. Assumpsit on a bill of exchange, indorsee against acceptor. The defendant's counsel of fered to call the drawer to prove that the bill was paid by him, and relied on the case of Gardner and Carter, determined some time since. Erskine objected to this witness. This case differs from that of Gardner and Carter, there the payee was the plaintiff; this action is brought by the indorsee: Lord Kenyon. It makes no difference. The courts have laid down a rule that a man shall not destroy his own security, this man does not come to destroy his own security, but to shew that it has been satisfied. He was therefore received, but it appearing that notice had been given to him the day after the bill became due, of its having been dishonoured by the ac ceptor, he was again objected to on account of interest. Lord Kenyon inclined to think this last objection a good one, because being liable to pay the bill himself on account of due notice having been given, by proving it paid, now he destroyed the bill, and would . witnesses. Competency of then in prison under a charge of having forged the bill, will not affect his competency to give such evidence'. In an action by the indorsee against the drawer of a bill, a prior indorser is a competent witness for the plaintiff, to prove that the defendant promised to pay the bill after it became due, and a prior indorser of a note is a competent witness for the maker to prové it paid 3. In an action against the drawer of a bill in order to excuse the neglect to give him due notice of the dishonour, the acceptor is a competent witness to prove that he had not received any value for his acceptance, for though by supporting the action against the drawer he may perhaps relieve himself from an action at the suit of the holder, yet he at the same time gives an action against himself at the suit of the drawer, in which the evidence he has given of the want of consideration would not avail him, but must be proved by another person 4. The drawer will not, however, be allowed in support of a defence to an action, at the suit of an indorsee against the acceptor, to set up a title to the bill in eventually discharge himself. His lordship, however, doubting whether the notice was given early enough, did not reject, but admitted his testimony, subject to the opinion of the court if the plaintiff chose to move for a new trial. The bill was for £73, and the witness proving payment of £30 only, the plaintiff had a verdict for the balance. 'Barber v. Gingell, 3 Esp. Rep. 62.—Bayl. 243. Barber v. Gingell, 3 Esp. Rep. 62. The drawer was called to prove that he had paid the bill. Being at that time a prisoner on a charge of having forged the bill and brought up by Habeas Corpus, he was objected to as incompetent, but Lord Kenyon over-ruled the objection. See Dickenson v. Prentice, ante, p. 531. 2 Stevens v. Lynch, 2 Campb. 382.-12 East. 38, S. C. Charrington v. Milner, Peake R. 6.-Humphrey v. Moxon, id. 52, ante, 531. Charrington v. Milner, Peake R. 6. The note had been indorsed by Monk to the plaintiff, and the defendant was allowed by Lord Kenyon to call Monk to prove that he had paid the note to the plaintiffs. Staples . Okines, 1 Esp. Rep. 332.-Legge v. Thorp, 2 Campb. 310. Peake Ev. 4th ed. 170. witnesses. himself by proving, that he had delivered the bill to Competency of the plaintiff without consideration, and as his agent only, to enable him to obtain payment, for his situation would be better or worse according to the event of the verdict; nor will a release from the defendant render him a competent witness for such purpose". By a recent statute it has been declared that a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever, by reason only, or on the sole ground that the answering of such question may establish or tend to establish that he owes a debt or is otherwise subject to a civil suit, either at the instance of his majesty or of any other person." But it has recently been determined3, that a witness cannot be required to answer a ques Buckland v. Tankard, 5 T. R. 578.-1 Esp. Rep. 85. S. C.— Bul. N. P. 288. Buckland v. Tankard, 5 T. R. 578. This was an action by the indorsee against the acceptor of a bill. The bill was drawn by Gregson payable to his own order, and indorsed by him in blank, and the defendant called Gregson to prove that he had indorsed and delivered it to the plaintiff, that he might get it paid and uot to give him any interest in it, and that he had no consideration for it, and was still entitled to it. The witness had a release from the acceptor. Lord Kenyon thought him interested, and rejected him. And on a rule nisi for a new trial the court held that his situation would be better or worse according to the event of the verdict, and that therefore he was properly rejected.-Rule discharged. 246 Geo. 3. c. .37. 3 Cates v. Hardacre, 3 Taunt. 424.-Phil. Ev. 3d ed. 222.—1 Chitty, Crim. Law, 620, 1. Cates v. Hardacre, 3 Taunt. 424. This was an action by an indorsec against the drawer of a bill, drawn payable to the drawer's order, upon Stratton, and by him accepted, and afterwards dishonoured; it was stated in the declaration to have been indorsed by the defendant to the plaintiff. The case was tried before Heath, J. at Westminster, at the sittings after last Hilary term; the plaintiff proved his case. The defence intended to be set up was usury. The first witness called on the part of the defendant was one Taylor, and the bill having been put into his hands, he was asked by Shepherd, Serjeant, for the defendant, "whether that bill had ever been in his possession before;" upon which Best, Serjeant, interfered, by asking the witness whether he had not been indicted for usury in this transaction, and upon his answering in the affirmative, Best cautioned him against answering questions which might tend to criminate him; the witness said that he thought his answer to the question proposed Competency of tion that he may think will tend to convict him of the offence of usury. witnesses. would have a tendency to convict him of the offence of usury; the learned judge told him, that if he thought so, he was not bound to answer the question; the witness availed himself of this direction, and the counsel for the defendant being thus prevented from pursuing his enquiry, a verdict passed for the plaintiff. Shepherd, Serjeant, moved for a new trial, contending that the judge's direction was wrong; that it was not sufficient that a witness thought that his answers would tend to criminate him; but that it ought clearly to appear that they would have that effect.-Mansfield, C. J. your ques tions go to connect the witness with the bill, and they may be links in a chain.-Rule refused. 585 CHAPTER V. OF THE SUM RECOVERABLE IN AN ACTION ON A BILL, &c. money. THE amount of the DAMAGES which the plaintiff is entitled to recover, necessarily depends on the liability of the parties to the instrument; the nature of which liability has already been considered in that part of the work which treats of the drawing, acceptance, transfer, and dishonour of bills', and from whence it may be collected, that, in general, the sum for which the bill is payable, may be recovered, and in certain cases, interest, and such expences as may have been occasioned by the dishonour of it. With respect to the principal money, or that sum 1st. The principal which is payable on the face of the bill or note, many instances occur, in which, although the plaintiff may not have given full value for the bill, &c. he may, nevertheless, recover the whole sum, holding the overplus beyond his own demand as trustee for some other party to the bill, &c. entitled to receive such overplus. Thus, if a bill be drawn in the regular course of business, as for money really due from the drawee to the drawer, in such case in order to avoid several actions, an indorsee, though he hath not given the full value of the bill, may recover the whole sum payable, and be the holder of the overplus as a trustee for the indorser 2; and if the holder receive part payment of the first indorser, he may, nevertheless, recover the whole against the drawer, and acceptor, though, if the acceptor pay 1 See Index, tit. Damages and Protest. |