nesses. By a recent statute it has been declared, that a witness cannot by Competenlaw refuse to answer a question relevant to the matter in issue, the cy of witanswering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatever, 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 determined, that a witness cannot be required to answer a question that he may think will tend to convict him of the offence of usury. 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 not to give him any interest in it, and that he had no consideratien 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. 46 Geo. 8. c. 37. i Cates v. Hardacre, 3 Taunt. 424-Phil. on Evid. 3d edit. 222. 1 Chitty's Crim. Law. 620, 1. Cates v. Hardacre, 3 Taunt. 421. This was an action by an indorsee against the drawer of a bill, drawn payable to the drawer's order, upon Stratton, and by lum 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 Hilary term, 1811; 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, and 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 wit-/ ness 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 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 inquiry, 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 questions go to connect the witness with the bill, and they may be links in a chain.-Rule refused. Parker v. Hanson, 7 Mass. Rep. 470. So a drawer is a competent witness to prove that at the time of drawing the bill he communicated certain conditions and restrictions as to his right to draw the bill. Storer v. Logan, 9 Mass. Rep. 55. An indorser is a competent witness in an action by an indorsee against the maker to prove that the note was, after the indorsement, fraudulently put into circulation. Woodhull v. Holmes, 10 John. Rep. 231. See also Owen v. Mann, 1 Day's Rep. 333. note (1.) 1st. The principal money. CHAPTER V. OF THE SUM RECOVERABLE IN AN ACTION ON A THE amount of the DAMAGES which the plaintiff is entitled to recover, necessarily depends on the liability of the parties to the instru ment; 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 expenses, as may have been occasioned by the dishonour of it. With respect to the principal money, or that sum 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; 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 a part, then only the residue can be recovered against the drawer. This rule, permitting the holder of a bill, &c. to recover more than is due to himself, only applies where there is some other person entitled to receive from the defendant the overplus of what is due to the plaintiff, and if there be no such person, the plaintiff will be permitted only to recover what is due to himself. But in case of bankruptcy, the holder may prove [420] the whole amount under a commission against a remote party, and receive a dividend until his debt is satisfied, though he cannot prove for more than the sum actually due on the balance of account against his immediate indorser.e We have, in the preceding chapter, seen, that a partial failure of consideration cannot be given in evidence to reduce the damages, though the total failure is an answer to the action.' d When a bill or note is payable by instalments, and it contains a clause, that on failure of payment of any one instalment, the whole test. See Index, tit. Damages and Pro b Wiffen v. Roberts, Esp. Rep. 261. Walwyn v. St. Quintin, 1 Bos. & Pul. 658. Johnson v. Kennion, 2 Wils. 262. and see the same rule in proof in bankruptcy, Ex parte De Tastet, 1 Rose, 19. Pierson v. Dunlop, Cowp. 571.—Steel v. Bradfield, 4 Taunt. 227. Jones r. Hilbert, 2 Stark. 304. e Ex parte Bloxam, 6 Ves. 449, 600. S. C. Acc. 5 Ves. 448. Cullen, 97, n. 35. Ex parte Leers, 6 Ves. 644., contra, pest. Ante, 412. quære, ante, 71. money. shall become due, the holder is entitled to recover the whole amount of 1st. The the sum for which it was given: but where the instrument does not principal contain such a clause, it is doubtful on the authorities, whether the holder can legally take a verdict for more than the instalment due. According to the case of Beckwith v. Nott, and several other cases cited by Lord Loughborough, in giving the opinion of the Court in the case of Rudder v. Price, the plaintiff is entitled to the whole sum for which the note was given; but according to other cases, and particularly that of Ashford v. Hand, the plaintiff is only entitled to the instalment due at the time of commencing the action. (537) When at the time of the trial, nearly all the instalments are due, the jury will frequently, for the sake of avoiding another action, give the whole sum in damages. If the plaintiff take a verdict for more than he is entitled to recover, the court will either make him correct the verdict, and pay the costs occasioned by his misconduct, or grant a new trial. When interest is made payable by the bill, &c. itself, there is no 2dly. Iatedoubt of its being recoverable as a debt, in other cases it is recovered rest. only as damages. 1 Interest is recoverable from the acceptor of a bill, and the maker of a promissory note payable at a certain time after date or sight from the day on which they became due, without proof of any demand," or if payable on demand from the time of the demand. If a jury should be of opinion that the delay of payment has been occasioned by the default of the holder, they may refuse to al-[421] low any interest. Interest is computed and given at law as well as in equity upon bills of exchange from the time they became due, in the nature of damages, not strictly as interest; and for breach of contract not in pursuance of it. But in case of bankruptcy, although there be a surplus, bills do not carry interest unless the previous dealings between the parties afforded evidence of a contract to pay interest. But the Beckwith v. Nott, Cro. Jac. 505. Jenk. 333. S. C. Rudder v. Price, 1 Hen. Bla. 551. i Ashford v. Hand, Andr. 370. Robinson v. Bland, 2 Burr, 1085. * Bacon v. Searles, 1 Hen. Bla. 88. Pierson v. Dunlop, Cowp. 571. Bayl. 99. acc. Johnson v. Kennion, 2 Wils. 262. Semb. contra. 1 Cameron v. Smith, 2 Barn. & Ald. 305. m3 Ves. 134. 5 Ves. 803. Lithgow v. Lyon and others, 1 Cowp. Ch. Ča. 22. Lowndes v. Collens, 17 Ves. 27. Upton v. Lord Ferrers 5 Ves. 801. A Farquhar v. Morris, 7 T. R. 124. Blaney Prac. Reg. Cotton v. Horsemanden, 357, and see the cases and law in De Haviland v. Bowesbank, 1 Campb. 50 to 53. Porter v. Palsgrave, 2 Campb. 473. 3 Ves. 134, 5. Per Bayley, J. in Cameron v. Smith, P Ex parte Williams, 1 Rose, 399. and (537) It has been held in Massachusetts, that the instalments only which are due at the commencement of the action can be recovered. Tucher v. Randall, 2 Mass. Rep. 283. And upon a note payable in a certain number of years with interest, in the mean time, annually, judgment can be recovered upon default of payment of the interest, for the interest only. Hastings v. Wiswall, 8 Mass. Rep. 455. Greenleaf v. Kellogg, 3 Mass. Rep. 568. Cooley v. Rose, 3 Mass. Rep. 221. And the interest so recoverable is simple interest only upon the principal sum, although several years interest be in arrear. Hastings v. Wiswall, 8 Mass. Rep. 455. And interest is payable only according to the law of the place where the note is drawn and is to be paid, though sued elsewhere. Foden v. Sharp, 4 John. Rep. 183. Slacum v. Pomery, 6 Cranch. 221. rest. 2dly. Inte-drawer or indorser of a bill of exchange, or the indorser of a note, is only liable to pay interest from the time he receives notice of the dishonour in order to subject him to liability in case of an inland bill, it is not necessary to protest it for non-payment ; and where the maker of a promissory note paid money into the hands of an agent to retire it, and the agent tendered the money to the holder on condition of having it delivered up, and the note being mislaid, that condition was not complied with, and the agent afterwards became bankrupt with the money in his hands; it was held, that though the maker was still responsible for the amount of the note, he was relieved from payment of interest; and when goods are sold, to be paid for by a bill of exchange, and the purchaser neglects to give the bill, the vendor is entitled to interest from the time when the bill, if given, would have become due ;" and the interest may, in that case, be recovered under the common count for goods sold; and this doctrine applies to any case where there is contract to pay by a bill. But interest is not recoverable on a debt for goods sold, even on limited credit, or for work and labour done, or for money had and received, or lent, unless there was a course of dealing allowing it, un[422]less it can be proved that the defendant made use of the money, and did not merely withhold it. In some cases it is said, that interest is payable from the date of the note, as where it appears on the face of it to have been given for money lent; or is payable with interest. Bankers cannot charge interest upon interest without an express contract for that purpose. Under particulars of demand, stating that the action was brought to recover the amount of a note of hand, it was holden, that interest on it is recoverable, and that when a note is payable by instalments, and on failure of payment, of any instalment, the whole is to become due, the interest is to be calculated on the whole sum remaining unpaid on default of any instalment, and not on the respective instalments at the respective times when they would become payable.s With respect to the time when interest stops, Lord Mansfield de clared, that the general practice of the associates in taking damages in cases where the debt carried interest, was to stop at the commence Walker v. Barnes, 5 Taunt. 240.-1 Ante, 218. 312. 405. Windle v. An- Dent v. Dunn, 2 Campb. 296. "Middleton v. Gill, 4 Taunt. 238, 9. Lowndes v. Collens, 17 Ves. 27. Porter v. Palsgrave, 2 Campb. 472. Boyce v. Warburton, 2 Campb. 480. 428, note. * Manhall v. Poole, 13 East, 98; but see Slack v. Lowell, 3 Taunt. 157. 305. Blaney v. Hendrick, 3 Wils. 201 2 Bla. Rep. 761. S. C. De Haviland r. Bowerbank, 1 Campb. 51. b Calton v. Bragg, 15 East, 223. Ex parte Williams, 1 Rose, 399. Denton e. Rodie, 3 Campb. 496. Gwyn v. Godby, 4 Taunt. 346. C Thompson v. Morgan, 3 Campb. 102. Walker v. Constable, I Bos. & Pul. 306. De Haviland v. Bowerbank, 1 Campb 50. Crockford v. Winter, id. 129. De Bernales v. Fuller, 2 Campb. 426. Cotten v. Horsemanden, Prac. Reg. 357. Bayl. 158. Kennerly e. Nash, 1 Stark, 452 Dawes . Pinner, 2 Campb. 486, in note; and ante, 85. But see Bruce v. Hunter, 3 Campb. 467. 8 Blake v. Lawrence, 4 Esp. Rep. 147. In Robinson v. Bland, 2 Burr. 1085. ment of the action; which practice was not founded in law, but in 2dly. Inte mistake and misapprehension; and that in point of justice, interest rest. should be carried down quite to the actual payment of the money but as that cannot be, it should be carried down to the time when the demand is completely liquidated, by the judgment being signed, by which means complete justice is done to the plaintiff, and the temptation to a defendant to make use of all the unjust dilatories of chicane, is taken away for if interest were to stop at the commencement of the suit, when the sum is large, the defendant might gain by protracting the cause in the most expensive and vexatious manner. In trover for bills of exchange, interest from the date of the final judgment upon all such bills as had been received before the judgment, and upon all such as had been received afterwards from the time of the receipt, was allowed in the Exchequer Chamber ; but it has been recently determined, that in troyer for bills, interest cannot be recovered after the time of the demand and refusal to deliver them up. So we have seen that after a tender and wrongful refusal to deliver a bill, the interest [ 423 thereon ceases to run." The rate of interest allowed in this country is £5 per cent. per annum, as well in courts of equity as at law." In an action against the drawer of a foreign bill of exchange dishonoured here by non-acceptance, where the plaintiff is allowed a per centage as of £10 per cent. in name of damages, he is only entitled to interest from the day the bill ought to have been paid, but where there is no such allowance for damages, the plaintiff is entitled to interest from the day the bill was dishonoured for non-acceptance. And in a late case, upon a bill drawn in Bermuda, on England, which ought to have been paid in England, the plaintiff recovered 7 interest, being the rate of interest at Bermuda. The only expense which the holder of a bill, at the time it became 3dly. Exdue, can be put to by the dishonour of it, is, that of the charge for penses. noting and protesting, and he cannot demand more of any of the parties to the bill, than a satisfaction for that expense. (541) But a party who m Ante, 421. Upton v. Lord Ferrers, 5 Ves. 803. Ante, 76. Gantt v. Mackensie, 3 Campb. 51. This was an action on a bill of exchange for 10007., drawn at Barbadoes, the 18th of February, 1809, by the defendant on Scott, Idles, and Co. in London, payable to the plaintiff at sixty days sight. The bill was refused acceptance on the 17th April, 1809, and was afterwards presented for payment on the 19th June following, and again dishonoured. The only question was, from what period interest was to be calculated. Lord Ellenborough left this upon the custom of mer chants to the special jury, who said the P Cougan v. Banks, N. P. Sittings after (541) The maker of a note is liable to the payee for the amount of the note only. Simpson v. Griffin, 9 John. Rep. 131. And he cannot be compelled to pay the costs CHITTY ON BILLS. 3 C |