defendant. Evidence for the self'; but in general the letters of an indorser, or at least those written after he has parted with the bill, are not admissible in evidence to impeach the indorsee's title. In an action against the acceptor of a bill given for the price of a horse warranted sound, the breach of warranty, if the horse were returned forthwith, will afford a complete defence. But it has been recently held, that if the consideration has only partially failed, and the exact amount to be deducted is unliquidated, the defendant cannot go into evidence in reduction of damages, but is driven to his cross action; and a party who has given his promissory note as the sti * Kent v. Lowen, 1 Campb. 177. 180. d. S. P. in Walsh v. Stockdale, cor. Abbott, J. Sittings at Guildhall, post, Trin. Term, 1818. Kent v. Lowen, 1 Campb. 177. and 180. d. Assumpsit against the defendant as maker of a promissory note for £153; 15s. dated 9th August, 1806, at ninety days after date, payable to Messrs. Coates and Co. indorsed by them to J. Watson, and indorsed by him to the plaintiff. The making of the note, and the several indorsements being proved, the Attorney-general opened, as a defence to the action, that the note had been given under an usurious agreement between the defendant and Coates and Co. To prove this he offered in evidence certain letters from Coates and Co. to the defendant, wherein they proposed to accommodate him with their acceptance at three months, upon receiving his note for the same sum at ninety days, together with two and a-half per cent. cómmission. Park objected to the admissibility of this evidence. He allowed, that in an action against the acceptor of a bill, the drawer or indorser may be called to prove that there was usury in its original concoction, but there the evidence was given upon oath, and an opportunity was afforded to crossexamine the witnesses. Here these letters of Coates and Co. were not upon oath, and might be collusively written, with a view to defeat the fair claim of the plaintiff.-Lord Ellenborough ruled, that it was first necessary to prove by the post mark, or otherwise, that the letters were cotemporaneous with the making of the note, and that after that they would be evidence of an act done by Coates and Co. who were the payees of the note, and through whom the plaintiff made title. Whether the act was proved by an oral declaration, or by other evidence, his lordship said, made no difference. The post mark being examined, did shew the letters to have been written just before the date of the note, and they were read in evidence accordingly; and Lord Ellenborough told the jury, that if they believed that the note was made on the terms held out in the letters, they must find for the defendant, who had a verdict accordingly; and on a motion for a new trial, it was contended, that the letters of the payee had been improperly admitted, but the court being of opinion that they were legal evidence to prove the usury as against the indorser; the verdict for the defendant was confirmed. defendant. pulated price of a picture, cannot give the inadequacy Evidence for the of the consideration in evidence with a view to reduce the damages, though he may give it in evidence as a circumstance indicatory of fraud, in order to defeat the contract altogether '. Though we have seen that it is incumbent on the plaintiff in general to prove a due presentment and notice of the dishonour, in support of his action against the drawer or indorser of the bill, yet in doubtful cases it may be necessary for the defendant to be prepared with evidence to negative the plaintiff's primâ facie proof; and we have seen that where the holder of a bill, upon its being dishonoured, received part payment, and for the residue another bill, drawn and accepted by persons not parties to the original bill, and such holder afterwards sued the indorser upon such original bill, it suffices for him to prove the presentment and dishonour of the substituted bill, and it is incumbent on the defendant to prove that a loss has been sustained in consequence of the want of notice of non-payment of such substituted bill. witnesses. We have already considered when it is necessary Competency of to subpoena a subscribing witness 3. It may here be proper to examine the cases respecting the admissibility of witnesses in an action on a bill or note. The general rule is, that it is no objection to the competency of a witness that he is also a party to the same bill or note, unless he be directly interested in the event of the suit, and be called in support of such interest, or unless the verdict to obtain which his testimony is offered, would be admissible evidence in his favour in another suit. If the verdict will not ne 'Soloman v. Turner, 1 Stark. 51.-Ante, 91. Bishop v. Rowe, 3 M. & S. 362.-Ante, 127.-See 7 Taunt. 312. 3 Taunt. 130. 3 Ante, 485, 6. Bent v. Baker, 3 T. R. 27.—Jordaine v. Lashbrook, 7 T. R. 601. Smith v. Prager, 7 T. R. 62.-Jones v. Brooks, 4 Taunt. 464.-Bayl. witnesses. Competency of cessarily affect his own interest, he is a competent witness, and though his testimony, by defeating the present action on the bill or note, will probably deter the holder from proceeding in another action against the witness, yet that only affords matter of observation to the jury, as to the credit to be given to his testimony'. Thus, though it was formerly held, that no party should be permitted to give testimony to invalidate an instrument he had signed, a contrary rule now prevails'. Thus, in an action at the suit of an indorsee against the acceptor, the drawer, or indorser, is a competent witness for the defendant, to prove that the bill was originally void, as that it was made in London, though dated at Hamburgh, and consequently invalid for want of an English stamp. And Lord Mansfield admitted the maker of a note to prove, in an action against an indorser, that the date had been altered. But in an old reporter it is stated to have been decided, that a person, supposed to be the drawer of a bill, cannot, without a release, be called to prove that he did not draw 6. So if the witness has an interest inclining him as much to one of the parties as the other, so as upon the whole to make him indifferent in point of substantial interest in whose favour the verdict may be given, he will be competent to give evidence for * Id. ibid. 2 Walton v. Shelly, 1 T. R. 300. 3 Bent v. Baker, 3 T. R. 36.-Jordaine v. Lashbrook, 7 T. R. 601. 4 Jordaine v. Lashbrook, 7 T. R. 601-and Smith v. Prager, id. 62. 5 Levi o. Essex, Mich. Term, 1775.-2 Esp. N. P. 708. The plaintiff declared as an indorsee of a promissory note, drawn by Foster Charlton, payable to the defendant, dated the 13th of June, 1775 ; the defendant insisted, that the date of the note had been altered from the 3d to the 13th; and to prove it, called Foster Charlton. Lord Mansfield admitted him, as at all events he was liable to pay the note. Anonymous, 12 Mod. 345.-Dupays v. Shepherd, Holt, 297.— Trials per Pais, 502. witnesses. either party. Thus where one partner drew a bill in Competency of the partnership firm and gave it in payment to a separate creditor, in discharge of his own debt, the Court of King's Bench held, that in an action by such creditor against the acceptor, either of the partners might be called on the part of the defendant to prove that the partner who drew the bill had no authority to draw it in the name of the firm, and that the bankruptcy of the partners would not vary the question as to the competency of the witness. In this case the partner who drew the bill would have been liable to the plaintiff for the amount of his debt, if the plaintiff had failed in the action; and if the plaintiff had succeeded, he would have been liable to the defendant, the acceptor, and with respect to the other partner, though he would have been liable to the defendant, if the plaintiff recovered, he would have had his remedy over against the joint partner. And though in another case the court held that a witness who might have a remedy by action, whether the plaintiff or defendant had a verdict, was nevertheless interested, because under the particular circumstances, he would have a greater difficulty in the one case than in the other, to enforce that remedy. It has been observed that this appears to be the only case which has been decided on such a ground, and that from the leading cases on this subject which rest on the broad ground of interest, such a circumstance may now more properly be considered as having a strong influence on the witness, but not as forming any solid objection to his competency. But if the verdict would necessarily benefit or affect the witness, as if he be liable to the costs of the 'Phil. Ev. 3d edit. 54 to 57. Ridley v. Taylor, 13 East, 175.-Phil. Ev. 3d edit. 55. 3 Buckland v. Tankard, 5 T, R. 579. Phil. Ev. 3d edit. 56, 7. M M Competency witnesses. action, then without a release, which will annul his interest in the event, he will not be a competent witness; and therefore in an action against the acceptor of a bill, accepted by him for the accommodation of the drawer; the latter is not a competent witness to prove that the holder came to the bill on usurious consideration, because he does not stand indifferently liable to the holder and the acceptor; for the holder can recover against him only the contents of the bill, but the acceptor would be entitled in an action for not indemnifying to recover against him, as well the amount of the bill as the damages he may have sustained, including the costs of the action against himself, and therefore the drawer has a direct interest in defeating such action. This decision seems to overrule the prior cases of Birt and Kershaw, and Shuttleworth v. Stephens. But if such accommodation acceptor release such drawer, the latter will be rendered competent, and if a person who has guaranteed 2 Jones v. Brooke, 4 Taunt. 464.-Phil. on Ev. 3d edit. 49, 56. * Jones v. Brooke, 4 Taunt. 464, and see Phil. Ev. 3d edit. 56. Jones v. Brooke, 4 Taunt. 464. Per Mausfield, Ch. J. This action is brought against Brooke as the acceptor of a bill of exchange; at the trial, the defence made, was, that this bill was given by the drawer to the indorser on usurious consideration, the latter having taken usurious interest on discounting the bill; and that the bill was accepted for the accommodation of the drawer. An objection was taken to the witness, who was the wife of the drawer; and the objection was over-ruled, on the ground that it is now the practice to receive persons whose names are on bills of exchange, as witnesses to impeach such bills. And so it is; but here the question is, inasmuch as this was an action against the acceptor, whether she could be received as against the acceptor, the drawer, as it was contended, being interested to defeat the action: the doubt was this; the drawer has an interest to protect the acceptor; for if the holder succeeds against the acceptor, the acceptor will have a right against the drawer, to make the drawer pay, not only the money, but also all damages he the acceptor may have sustained by being sued for it; for the drawer of an accommodation-bill is bound to indemnify the acceptor against the consequences of an acceptance made for the accommodation of the drawer; we are therefore of opinion that the drawer cannot be a witness, and consequently the rule must be made absolute for entering a verdict for the plaintiff. 3 Birt v. Kershaw, 2 East. 458. * Shuttleworth v. Stevens, 1 Campb. 407. |