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other illegal consideration; for though the statute against gaming, &c. makes such bill void to all intents and purposes, the proper construction upon those words is, that it makes it void as far as can be necessary to further the objects of the act, but it does not avoid it in favor of a party whom the statute meant to punish, not to protect. (72) (a)

rious agreement between O. Ruggles and H. Ruggles or Darling. Spencer J. giving the opinion of the court, said, “The bill, while in the hands of O. Ruggles and before it was discounted by the plaintiffs, was a perfect and available bill, and when it became due, he could have maintained an action upon it, against either the defendants or H. Ruggles, the drawer. The principle is too well settled to be questioned that a bill free from usury in its concoction, may be sold at a discount, by allowing the purchaser to pay less for it, than it could amount to at the legal rate of interest for the time the bill has to run.' ." Judgment for the plaintiffs. Munn v. Commission Company, 15 Johns. R. 44. See also the opinion of Jackson J. in Bridge v. Hubbard, supra.] (72) Edwards v. Dick, Hil. 1 and 2 Geo. 4. 4 Barnew. 212. Action on bill drawn by defendant on Lord Rossmere, payable to defendant's order, and endorsed by him; defence, that defendant drew the bill for money won by him of Lord Rossmere at play. Bayley J. thought this no defence, because by endorsing the bill defendant affirmed it to be free from exception, with which this defence was inconsistent, and rejected the evidence. On motion for new trial, the court thought he did right, for defendant was not within the spirit of the act against gaming; it was not for a person standing as he did that the act intended protection; compelling payment from him was not advancing any practice the statute meant to suppress, and giving him protection would assist a winner, whom the act meant to discountenance, and would enable him to set up his own misconduct to bar the honest claim of an innocent endorsee. Rule refused.

[(a) The statute of Massachusetts, 1804, c. 58, § 1. enacts that all bills, notes, &c. under five dollars, payable to bearer or order, shall be wholly in writing; and that all bills notes, &c. under that amount and so payable, issued after April 1, 1805, and having the impression of types, plates, or printing, shall be utterly void, and no action shall be thereon sustained in any court of law. In an action on printed or engraved notes payable to bearer, each for less than $5. but dated previously to April 1, 1805, it was held that evidence that the notes were issued after that date was admissible, and constituted a good defence to the action. Bayley v. Taber, 5 Mass. R. 286.

The statute of Pennsylvania of March 19th, 1810, declared it unlawful for any incorporated association of persons to perform the operations of banking, or to loan money on any note, and unlawful for any person to offer any note for discount at any such bank. It seems that the endorser of a note discounted by such an association, and who has taken it up, cannot maintain an action on account of it against the maker of the note. Myers v. Irwin, 2 Serg. and Raw. 368.

The act of Pennsylvania of 21 March, 1814, made all notes in the nature of bank notes issued after January 1, 1815, issued by any unincorporated bank null and void, and "irrecoverable in any court." By

the statute of 22 March, 1817, so much of any act as prevents the holder of such a note from recovering upon it against the bank, association, or partnership is repealed. The Supreme Court of Pennsylvania held that notes in the nature of bank notes issued by an unincorporated association between 1 January, 1815 and 22 March, 1817, might be recovered upon in a suit against the members of the association as partners. Hess v. Werts, 4 Serg. and Raw. 356. Though such notes contain a promise to pay "out of their joint funds, according to their articles of association," yet the members are personally liable. Ib.

Where a bill, drawn in New York on a person in Great Britain, during a time of war between that country and the United States, for supplies furnished by the payee to a British packet, authorized by an act of Congress, (passed 6th of July, 1812, 1 Sess. 12th. Cong. c. 129,) to sail from New York to Great Britain, was sold by the payee, and remitted by the purchaser to Great Britain for collection; in an action by the holder against the drawer, it was held that the remittance of the bill was within the protection afforded to the original transaction, and was not illegal, and that the plaintiff was equally protected with the payee who furnished the supplies. Suckley v. Furse, 15 Johns. R. 338. It is no bar to an action on a bill or note, that it was made on Sunday. Geer v. Putnam, 10 Mass. R. 312. See also Smith v. De Fontaine, 1 Taunt. 131. The contrary has been held in Connecticut. 1 Root, 474. See also 1 Root, 98. and 145.

In case of an endorsement of a note after it is due, the maker may set up any defence to the action of the endorsee, which he might have done against the payee; but where the maker had confessed judgment on the note, the court refused to set aside the judgment to let in a defence of the illegality of the consideration of the note, where both parties to the original contract were in pari delicto. Sebring v. Rathbun, 1 Johns. Cas. 331.]

CHAP. XIII.

Competence of Witnesses.

In an 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 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

(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.

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(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 endorser 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 Lingard, Peake, N. P. C. 117.

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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 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 hand-writing; 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 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

(3) See York v. Blott, supra, n. (1).

(4) Dickinson v. Prentice, 4 Esp. N. P. C. 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 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 endorsed 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.

(6) Humphrey v. Moxon, Peake, N. P. C. 52. This was an action by an endorsee; 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. (7) See Dickinson v. Prentice, supra, 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.

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) (a)

[In an action by the endorsee of a bill against the acceptor, it has been held that the endorser is not a competent witness for the defendant, to prove that the plaintiff had no right to recover upon the bill, having merely received it from the endorser in trust to obtain payment of it from the acceptor on account of the endorser himself. (b)]

In an action by endorsee of a note against an endorser, the maker is a competent witness for the plaintiff: for if the endorser is made to pay, the maker will be liable to pay him; if the endorser is not made to pay, the maker will be liable

(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 endorsed away the 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.

[(a) It has been held that the drawer of a bill was not a competent witness for the plaintiff, in an action against the acceptor; "because if the plaintiff prevailed the witness would be liable to account to the defendant for the amount of the bill only; but if the defendant succeeded, the witness, as drawer, would be answerable to the plaintiff as holder, not only for the amount of the bill, but also for charges, damages, and interest." _Scott v. M’Lellan, 2 Greenleaf, 199.]

[(b) Buckland v. Tankard, 5 Term Rep. 578. This was an action by an endorsee against the acceptor of a bill. The bill was drawn by Gregson payable to his own order, and endorsed by him in blank. And the defendant called Gregson to prove that he had endorsed and delivered it to the plaintiff that he might get it paid, and not 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 sitnation would be better or worse according to the event of the verdict, and therefore that he was properly rejected. Rule discharged.]

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