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Competence of Witnesses.
One of several Makers, p. 418.
Drawer, p. 418.
Indorser, p. 421.
Acceptor, p. 421.
In an action against one of several makers of a note, another maker is a competent witness for the plaintiff, for he stands indifferent; if the plaintiff recovers he will be liable to pay contribution to the defendant; if plaintiff fails and forces him to pay, he will be entitled to contribution from the defendant. (1)
It was at one time held, that no person who had signed a negotiable bill or note was admissible as a witness to impeach its validity, because his conduct had sanctioned what his testimony would defeat.
But the contrary is now fully settled.
Thus the drawer of a bill dated abroad and not stamped is a competent witness to prove that it
(1) York v. Blott, 5 Maule, 71. Assumpsit against one of two makers of a note; plaintiff called the other maker, and Graham B. admitted him: on motion for a new trial, the court thought the witness stood indifferent, and was properly admitted, and refused the rule.
was made in England, and therefore not admissible in evidence. (2)
And the only objection which can now be made against the testimony of a party to the bill or note is, that he has a direct interest in the event of the suit if he has such an interest he is not admissible, otherwise he is.
Therefore in an action against one of several makers of a note, any of the others is a competent witness for the plaintiff; for if the plaintiff succeeds in the suit, the witness will be liable to pay contribution; if the plaintiff fails in the suit and makes the witness pay, the witness will be entitled to receive contribution. (3)
So in an action against the acceptor of a bill, the drawer is a competent witness either for the plaintiff (4) or for the defendant (5) (6); for if the plaintiff recovers against the acceptor, the drawer
(2) Jordaine v. Lashbrooke, 7 Term Rep. 601. In an action against the acceptor of a bill purporting to have been drawn at Hamburg, the defence was that it was drawn in London, and therefore inadmissible in evidence without a stamp: the payee and indorser was called to prove where it was drawn; but it was objected that he was incompetent. Lord Kenyon, however, admitted him; and on his testimony the defendant had a verdict upon the counts on the bill. On a rule nisi for a new trial, and cause shewn, Ashhurst J. thought the witness inadmissible; but Lord Kenyon, Grose, and Lawrence Js., held that as he was neither interested in the event, nor rendered infamous by a conviction for any crime, he was properly admitted. Rule discharged. See also Adams v. Lingard, Peake, N. P. C. 117. (3) See York v. Blott, supra, n. (1.)
(4) Dickinson v. Prentice, 4 Esp. N. P. C. 32. This was an
pays the bill by the hands of the acceptor; if the plaintiff fails against the acceptor, the drawer is liable to pay the bill himself. (4)
And the drawer has accordingly been admitted for the plaintiff, to prove the defendant's handwriting; and for the defendant, to prove that (5) the plaintiff discounted the bill upon an usurious consideration, or that (6) the bill had been paid.
And it is no objection to the competence of the
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 the 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 were established, he had such an interest as ought to disqualify him. But Lord Kenyon said that this was matter of observation as to his credit, but was no objection to his admissibility. He was admitted, and the plaintiff had a verdict. See also Barber v. Gingell, 3 Esp. N. P. C. 62.
(5) Rich v. Topping, Peake N. P. C. 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 reporter, however, in a note upon 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. N. P. C. 119., the drawer (under precisely similar circumstances) was admitted without a release; at least it is not stated that he had any.
This was an
(6) Humphrey v. Moxon, Peake N. P. C. 52. action by an indorsee; and a distinction was attempted to be taken between this case, and one wherein the payee was the plaintiff; but Lord Kenyon held that there was no difference in principle, and admitted the drawer.
drawer, when called to prove the acceptor's handwriting, that he is in custody upon a charge of having forged it. (7)
But in an action against the acceptor upon an acceptance for the accommodation of the drawer, the drawer or his wife is not a competent witness for the defendant; for he has a direct interest to defeat the suit, because if plaintiff recovers against the acceptor, the drawer will be liable to the acceptor not only for the amount of the bill, but for all the costs the acceptor may sustain: whereas if plaintiff fails against the acceptor, the drawer will be liable for the amount of the bill only, not for the costs. (8)
In an action by indorsee of a note against an indorser, the maker is a competent witness for the plaintiff: for if the indorser is made to pay, the
(7) See Dickinson v. Prentice, ante, p. 419. n. (4.), and in Barber v. Gingell, 3 Esp. N. P. C. 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 overruled the objection.
(8) Jones v. Brooke, 4 Taunt. 464. Action against acceptor of a bill: the acceptance was without value, to accommodate the drawer; the drawer's wife was called as a witness for the defendant, to prove that the drawer indorsed away bill upon an usurious consideration; the witness was objected to, but admitted: but on rule nisi, cause shewn, and time to consider, the court held the drawer had a direct interest to defeat the action, because otherwise he must indemnify defendant against the costs as well as pay him the amount of the bill; that the wife therefore was incompetent. Rule absolute,
maker will be liable to pay him; if the indorser is hot made to pay, the maker will be liable to pay the indorsee; and his liability to the one cannot exceed in extent his liability to the other. (9)
So in an action by indorsee against drawer or acceptor, an indorser is in general a competent witness either for plaintiff or defendant: for plaintiff, because, though the plaintiff's succeeding in the action may prevent him from calling for payment from the indorser, it is not certain that it will; and whatever part of the bill or note the indorser is compelled to pay, he may recover again from the drawer or acceptor; and he is competent for defendant, because if plaintiff fails against drawer or acceptor, he is driven either to sue the indorser or to abandon his claim.
Thus he has been admitted upon a bill drawn for his accommodation to prove for the plaintiff that (10) the plaintiff gave him value for it, and he has been admitted for the defendant to prove that he had paid the bill (11), or to prove that an un
(9) Venning v. Shuttleworth, 24th February, 1796, at Guildhall. In an action by Venning, as indorsee of a note, against Shuttleworth as payee and indorser, the plaintiff called the drawer to prove notice to the defendant; he was objected to, but per Lord Kenyon stat indifferenter, and he was accordingly admitted.
(10) Shuttleworth v. Stephens, 1 Campb. 408. (11) Charrington y. Milner, Peake, N. P. C. 6. 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 plaintiff.