Competency nor will a release from the defendant render him a competent of witnesses. witness for such purpose. (a) (1) By a recent statute it has been declared "that a witness cannot by law refuse to answer a question relevant to the matter in issue, the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever, 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." (b) But it has recently been determined, (c) that a witness cannot be required to answer a (a) Buckland v. Tankard, 5 T. R. 578.-1 Esp. Rep. 85. S. C.—Bul. N. P. 288. Buckland v. Tankard, 5 T. R. 578. 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 consi deration 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 bet ter or worse, according to the event of the verdict, and that therefore he was properly discharged.—Rule discharged. (b) 46 Geo. 3. c. 37. (c) Cates v. Hardacre, 3 Taunt. 424. Phil. Ev. 3d ed. 222.-1 Chitty, Crim. Law. 620, 1. Cates v. Hardacre, 3 Taunt. 424. This was an action by an indorsee against the drawer of a bill, drawn payable to the drawer's order, upon Stratton, and by him 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 last Hilary term; 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, 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 witness 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 him. self of this direction, and the counsel for the defendant being thus prevent, ed 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. (1) In an action by an indorsee against an indorser, the maker, a cer tificated bankrupt, under a commission issued since the making of the note, and released by the indorser, is a competent witness to prove that 1 question that he may think will tend to convict him of the offence of usury. he has paid the note to the plaintiff. Warren v. Merry, 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. 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.) [*534] Competency of witnesses. 1st. The principal money. [*536] THE amount of the DAMAGES which the plaintiff is entitled to recover, necessarily depends on the liability of the parties to the instrument; the nature of which liability has already been considered in that part of the work which treats of the drawing, accepting, transfer, and dishonour of bills, (a) 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 expences as may have been occasioned by the dishonour of it. With respect to the principal money, or that sum which is pay able 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; (b) 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. (c) 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 (a) See Index, tit. Damages and Protest. (b) Wiffen v. Roberts, 1 Esp. Rep. 261. (c) 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, 10. plaintiff, and if there be no such person, the plaintiff will be 1st. The principal permitted only to recover what is due to himself. (a) But in case money. of bankruptcy, the holder may prove 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. (b) 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. (c) 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 shall become due, the holder is entitled to recover the whole amount of the sum for which it was given: but where the instrument does not 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 against Nott, (d) and several other cases cited by Lord Loughborough in giving the opinion of the Court in the case of Rudder v. Price, (e) 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, (f) the plaintiff is only enti tled to the instalment due at the time of commencing the action. (1) When at the time of the trial, nearly all the instalments (a) Pierson v. Dunlop, Cowp. 571.-Steel v. Bradfield, 4 Taunt. 227. (6) Ex parte Bloxham, 6 Ves. 449. 600. S. C.-Acc. 5 Ves. 448.--Cullen, 97. n. 35. Ex parte Leers, 6 Ves. 644. contra. post. (c) Ante, 526. quære ante, 92. (d) Beckwith v. Nott, Cro. Jac. 505.-Jenk. 333. S. C. (e) Rudder v. Price, 1 Hen. Bla. 551. (f) Ashford v. Hand, Andr. 370.-Robinson v. Bland, 2 Burr. 1085. [*587] (1) It has been held in Massachuse us, 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 note is drawn, and is to be paid, though sued elsewhere. 4 John. Rep. 183. Slacum v. Pomery, 6 Cranch. 221. place where the Foden v. Sharp, 1st. The principal money. 2dly. Inter est. [*538] 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. (a) When interest is made payable by the bill, &c. itself, there is no doubt of its being recoverable; and it is also 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, (b) or if payable on demand from the time of the demand. (c) 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. (d) 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. (e) But the 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, (ƒ) and not even then in the case of an inland bill, unless it has been protested for non-payment; (g) 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; (h) and when (a) Bacon v. Searles, 1 Hen. Bla. 88.-Pierson v. Dunlop, Cowp. 571. Bayl. 90 acc.-Johnson v. Kennion, 2 Wils. 262. semb. contra (b) 3 Ves. jun. 134.-5 Ves. jun. 803.--Lithgow v. Lyon and others, 1 Cowp. Ch. Ca. 29.-Lowndes v. Collens, 17 Ves. jun. 27. (c) Upton v. Lord Ferreres, 5 Ves. jun. 801.-Farquhar v. Morris, 7 T. R. 124.-Blaney v. Hendrick, 2 Bla. Rep. 761.--3 Wils. 205. S. C.--Vernon v. Cholmondeley, Bunb. 119.-Frith v. Leroux, 2 T. R. 58 —Marius, 13.--CotHorsemanden, Prac. Reg. 357.; and see the cases and law in De Ha viland v. Bowerbank, 1 Campb. 50 to 53.--Porter v. Palsgrave, 2 Campb. 473--3 Ves. jun. 134, 5. ten v. (d) Ex parte Williams, 1 Rose, 399, and Ex parte Cocks, id. 317.Lowndes v. Collens, 17 Ves. jun. 27.-Lithgow v. Lyon, 1 Coop. Ch. Ca 29. (e) Id. ibid. (f) Walker v. Barnes, 5 Taunt. 240-1 Marsh, 36, S. C. |