fendant.

Evidence least those written after he has parted with the bill, are not admissi for the de- ble 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 it is driven to his cross action; and a party who has given his promissory note as the stipulated price of a picture, cannot give the inadequacy 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. And we have seen, that if a note be payable on demand, parol evidence cannot be given of an agreement to wait for payment till after the death of the testator."

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 [413]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 prima 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 partics 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, a

Competen- We have already considered. when it is necessary to subpoena 2 cy of wit-subscribing witness. It may here be proper to examine the cases respecting the admissibility of witnesses in an action on a bill or note.

nesses.

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 uit, 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 necessarily affect his own interest, he is a com

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 show the
letters to have been written just before
the date of the note, and they were read
in evidence accordingly; and Lord Ellen-
borough told the jury, that if they be-
lieved 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

petent witness, and though his testimony, by defeating the present Competenaction on the bill or note, will probably deter the holder from ey of witpro- nesses: ceeding 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. '(528)

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, or that it was made in London, though dated at Hamburgh, and consequently invalid for want of an English [ 414 ] stamp. And Lord Mansfield admitted the maker of a note to prové, 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.1

d Id. ibid.

Walton v. Shelly, 1 T. R. 309.

f Bent v. Baker, 3 T. R. 36. Jordaine v. Lashbrook, 7 T. R. 601.

8 Jordaine v. Lashbrook, 7 T. R. 601. and Smith v. Prager, id. 62.

Levi o. Essex, Mich. Term. 1775. 2 Esp. Rep. 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 defen-
dant 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.

Anon. 12 Mod. 345. Dupays v. Shep
herd, Holt, 297. Trials per Pais, 502.

(528) The decision in Walton v. Shelly seems to have been adhered to in the United States. In Massachusetts and New York it has been decided that a party to a negotiable instrument cannot be adinitted as a witness to prove the note originally void. Churchhill v. Suter, 4 Mass. Rep. 156. Warren v. Merry, 3 Mass. Rep. 27. Parker v. Lovejoy, 3 Mass Rep. 565. Widgery v. Munroe, 6 Mass. Rep. 449. Jones v. Coolridge, 7 Mass. Rep. 199. Winter v. Saidler, 3 John. Cas. 195. Wilkie v. Roosevelt, 3 John. Cas. 206. Coleman v. Wire, 2 John. Rep. 165. Skilding v. Warren, 15 John. Rep. 270. But he is a good witness to prove any facts subsequent to the due execution of the note, which destroys the title of the holder. Baker v. Arnold, 1 Caines' Rep 258. Woodhull v. Holmes, 10 John. Rep. 231. Warren v. Merry, 3 Mass. Rep. 37. Barker v. Prentiss, 6 Mass. Rep. 130. Parker v. Hanson, 7 Mass Rep. 470. Webb v. Danforth, 1 Day's Rep. 301. Mann v. Swann, 14 John. Rep. 270. Hulby v. Brown, 16 Johns. Rep. 70. Myers v. Palmer, 18 John. Rep. 167. The indorser of a negotiable note is not a competent witness, in an action between the indorsee and maker, to prove usury in the transfer of the note by him. Manning v. Wheatland, 10 Mass. Rep. 502. And in Pennsyl vania, it has been decided, that an indorser cannot in a like action be a witness, that there was no original consideration for the bill. Still v. Lynch, 2 Dall. Rep. 194. See also Allen v. Holkins, 1 Day's. Rep. 17. Bearing v. Reeder, 1 H. & Munf. Rep. 175. 2 Binney, 154. 2 Desaus Cha. Rep. 224.

But this rule is confined to negotiable instruments. Pleasants v. Pemberton, 2 Dall. 196. 1 Yeates' 202. Buring v. Shippen, 2 Binn. 165. 168. M Ferran v. Powers, 1 Serg. & Rawle, 102. And they must be such as are actually negotiated in the usual course of business. Blagg v Phænix Ins. Co. Cir Co. U. S. Whart. Dig. 270. Baird v. Cochran, 4 Serg & Rawle, 399. Hepburn v. Cassel, 6 Serg. & Rawle, 113. Bank of Montgomery v. Walker, 9 Serg. & Rawle, 236.

The indorser is not a competent witness in Pennsylvania in a suit against the maker of a promissory note, to prove that the note was originally drawn for the indorser's accommodation, and thereby enable the maker to set up a discharge by the holder's giving time to the indorser.

For, though a party to negotiable paper may be received to prove subsequent facts to discharge it, yet he is not competent to show that the instrument was not in truth what it purported on its face to be. Bank of Montgomery v. Walker, 9 Serg. & Rawle, 236; CHITTY ON BILLS. 3 B

Compe ten

nesses.

So if the witness has an interest inclining him as much to one of cy of wit- 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 either party. Thus one joint maker of a promissory note is a witness to prove the signature of the other who has been separately sued. And where one partner drew a bill in 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 [415]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 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, without a release, 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. (1) This decision seems to overrule the

* Phil. Ev. 3d edit. 54 to 57.

1 York v. Blott, 5 M & S. 71.
m Ridley v. Taylor, 13 East, 175. and see
York v. Blott, 5 M. & S. 71. Phil. Ev. 3d
edit. 55.

» Buckland v. Tankard, 6 T. R. 579.
Phil. Ev. 3d edit. 56, 7.

P Jones v. Brooke, 4 Taunt. 464. Hard-
wick v. Blanchard, 1 Gow. C. N. P. 113.
Phil. Evid. 3d edit. 49. 56.

Jones v. Brooke, 4 Taunt. 464. Hardwick v. Blanchard, 1 Gow. C. N. P. 113, and see Phil. Ev. 3d edit. 56.

Jones v. Brooke, 4 Taunt 464. Per Mansfield, Ch. J. This action is brought against Brooke as 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 a usurious consideration, the lat ter having taken usurious interest on dis

(1) This doctrine seems recognised in Bank of Montgomery v. Walker, 9 Serg. & Rawle, 236.

prior cases of Birt v. Kershaw, and Shuttleworth v. Stephens. But Competenif such accommodation acceptor release such drawer, the latter will be cy of witrendered competent; and the drawer of a bill who has become bankrupt, is a good witness in an action against an acceptor, who accepted the bill for the accommodation of such drawer, on being released by such acceptor, although the latter had not formally released the assignees of" the estate. If a person who has guaranteed the payment of a bill, has been discharged by his bankruptcy and certificate from liabilty 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 defendant to prove that the plaintiff discounted the bill upon a usurious consideration, or that it has been paid. And

(531) It has been held in Massachusetts, that in an action by an indorsee against the drawer, the indorser is not a competent witness to prove the hand-writing of the drawer without a release, or its equivalent, a discharge from liability on the indorsement. Barnes v. Ball, 1 Mass. Rep. 73. Rice v. Starnes, 3 Mass. Rep. 225.

Competen- the circumstance of the witness being then in prison under a charge of ey of wit- 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 he the witness indorsed the bill, or 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 prove it paid.

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.

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 himself by proving, that he had delivered the bill to 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. (553)

ence. The courts have laid down a rule
that a man shall not destroy his own secu
rity; this man does not come to destroy his
own security, but to show 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 accep-
tor, he was again objected to on account
of interest. Lord Kenyon inclined to think
this last objection a good one, because be-
ing 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 eventually discharge himself. His
Lordship, however, doubting whether the
notice was given early enough, did not re-
ject, 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
731., and the witness proving payment of
307. only, the plaintiffs had a verdict for the
balance.

Barber v. Gingell, 3 Esp. Rep. 61.
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 ob jected to as incompetent, but Lord Kenyon over-ruled the objection. See Dickenson v. Prentice, ante, 416.

Richardson v. Allan, 2 Stark. 334. d Stevens v. Lynch, 2 Compb. 332. 12 East, 38. S. C.

e

Charrington v. Milner, Peake's Rep. 6. Humphrey v. Moxon, id. 42, ante, 416. Charrington v. Milner, Peake's Rep. 6. The note had been indorsed by Monk to the plaintiff, and the defendant was a lowed by Lord Kenyon to call Monk to prove that he had paid the note to the plaintiff.

Staples v. Okines, 1 Esp. Rep. 332 Legge v. Thorpe, 2 Campb. 310. Peake's Ev. 4th edit. 170.

8 Buckland v. Tankard, 5 T. R. 578. 1 Esp. Rep. 85. S, C. Bul. N. P. 283. Buckland v. Tankard, 5 T. R. 578.

(533) In an action by an indorsee against an indorser, the maker, a certificated bankrupt, under a commission issued since the making of the note, and released by the indorser, is a competent witness to prove that he has paid the note to the plaintiff. Warren v. Marry, 3 Mass. Rep. 27. And in an action by the indorsee against the drawer, the indorser (who was the payee) is a competent witness to prove that the indorsement was made in trust for himself without any recourse to himself. Barker v. Prentiss," 6 Mass. Rep. 430. The payee of a note who has indorsed it with a saving of his own liability, is a competent witness to prove an alteration of the note since its execution.