Joint contractors. Parties. his tenant, and though he might feel inclined to prefer one tenant to another, this objection would go to his credit only, and not to his competency, because the verdict could not be given in evidence in any action to be brought by or against him. (1) Several cases, relative to the competency of witnesses equally interested on either side, have arisen with regard to cocontractors and partners. In an action on a bond against one of several obligors, another of the obligors is competent for the plaintiff to prove the execution of the hond. (2) And in an action on a promissory note against one of several joint makers, a maker of the note who is not sued is competent to prove the defendant's signature. (3) In these cases it has been said, if the plaintiff recover, the witness will be liable to the defendant for contribution; if the plaintiff fail, he may resort to the witness for the whole, and in that case the witness will be entitled to contribution for the defendant; so that in either point of view the witness stands indifferent between the parties. So also in assumpsit for goods sold and delivered, a witness, who admitted himself to be a partner of the defendant, was held competent on the part of the plaintiff to fix the defendant's liability. (4) And in an action charging the defendant as a partner in a trading company, a witness, proved to be himself a shareholder, was held competent on the part of the plaintiff to prove that the defendant was a partner. (5) Upon the same principle, in an action of contract in which the defendant pleads the non-joinder of a partner a co-contractor in abatement, the alleged joint contractor is a competent witness for the plaintiff to negative the plea : (6) for it is indifferent to the witness, which way the verdict goes. Indeed, if he be in fact a partner, the verdict in favour of the plaintiff would rather be prejudicial to him, for he would then be liable to contribution, increased by the amount of the costs. In the one way, therefore, the verdict would be indifferent, in the other prejudicial. (7) 35. (1) Bell v. Harwood, 3 T. R. 308. (3) York v. Blott, 5 M. & S. 71. (5) Hall v. Curzon, 9 B. & C. 646. (6) Hudson v. Robinson, 4 M. & S. 476. Cosham v. Goldnay, 2 Stark. N. P. C. 414. (7) By Lord Ellenborough, 4 M. & S. 479. We have seen in the last chapter, that on account of drawer of bill. From the case of Ridley v. Taylor, (1) it appears to have Partner of been considered by the court of King's Bench, that in an action by the indorsee against the acceptor of a bill drawn in the name of a firm, a member of the firm was a competent witness for the defendant, to prove that the bill had been drawn by one of the partners in fraud of the rest, and indorsed by him to the plaintiff for a separate debt. and notes. Competency of joint maker of notes. In actions on negotiable securities many instances arise in Actions on bills which parties to the instrument are competent witnesses, by reason of an equal liability on either side. It has already been mentioned, that in an action against one of several makers of a note, a joint maker not sued is a competent witness for the plaintiff. And in an action against the acceptor of a bill, the Drawer of a drawer is a competent witness for either party. (2) Thus, he bill. has been admitted for the plaintiff, to prove the defendant's hand-writing to the bill; (3) and he has also been admitted for the defendant, to prove payment of the bill, (4) and also to impeach the plaintiff's right to recover, on the ground of an usurious consideration. (5) If, however, the bill has been accepted for the drawer's accommodation, the drawer is incompetent on behalf of the acceptor, (as we have seen in the preceding chapter), on the ground that he is not merely liable to the defendant. acceptor for the amount of the bill, but is also bound to indemnify him for the costs of the action; (6) in this case, however, the drawer will be rendered competent by bankruptcy and certificate. (7) Accommodation drawer incompetent for Competency of In an action on a promissory note or bill by an indorsee, the indorser is in general a competent witness, either for the plaintiff indorser. Accommoda drawer-com tiff. or the defendant. He may be called by the plaintiff to prove his own indorsement, (1) and by the defendant to prove that the bill has been paid, (2) or that it is void on the ground of not being properly stamped, having been actually made in London, though dated in a foreign country. (3) In these cases there is no interest to disqualify the witness from giving evidence for the plaintiff, for although the circumstance of the plaintiff succeeding in the action may prevent him from suing the witness, it is not certain that it will have this effect; and whatever part of the bill or note the indorser is compelled to pay, he may recover again from the drawer or acceptor: the witness is also competent for the defendant, for if the plaintiff fail he is not prevented from suing the witness. (4) If a bill has been drawn for the accommodation of the indorser, tion indorsee or he is a competent witness for the plaintiff, to prove that the latter petent for plain- gave him value for the bill: (5) for the reason, upon which an accommodation drawer or indorser has been held incompetent for the defendant, namely, on the ground of a liability to costs, does not apply, when the witness is called on the part of the plaintiff. And in a very recent case, where a bill had been accepted for the accommodation of the drawer, who had misapplied the bill, and the acceptor brought trover to recover it from a third party, it was decided by the Court of Common Pleas, that the drawer was a competent witness for the plaintiff, on the ground that which ever way the verdict went, he would be liable to one or other of the parties, and therefore stood indifferent. It was argued in this case, that if the plaintiff failed, the witness would be liable to him for the costs, but the Court said there was no principle, upon which the witness could be held liable to the plaintiff for the costs of an action, which the latter was unable to support. (6) (1) Richardson v. Allen, 2 Stark. N. P. C. 334. (2) Charrington v. Milner, Peake, N. P. C. 6. (3) Jordaine v. Lashbrooke, 7 T. R. 601. (4) See Bayly on Bills, 5th edit. 536. (5) Shuttleworth v. Stephens, 1 Campb. 408. (6) Fancourt v. Bull, 1 Bing. N. C. 681. It was held, in the case of Buckland v. Tankard, (1) that in Case of Buck land v. Tan kard. an action by an indorsee against the acceptor, the indorser of a bill was incompetent for the defendant to prove that he indorsed the bill to the plaintiff, upon trust to enable him to obtain payment from the defendant on account of the witness himself, and not for any consideration, or with intent to convey any interest on the bill. The reason given for the rejection of the witness was, that if the plaintiff succeeded, the witness would be put to much greater difficulty in getting back his money than if the plaintiff were defeated; but the principle of the decision appears doubtful. We have seen, that in the case of Edmonds v. Edmonds v. Lowe, (2) which was an action by an indorsee against the drawer of a bill, the acceptor was held incompetent for the defendant nify. to prove that the plaintiff had received the bill from him upon condition that he should get it discounted, and that he had not done so; but this was upon the special ground, that under the circumstances of that case the acceptor would have been liable to indemnify the defendant against the costs, if the plaintiff obtained a verdict. the same Lowe, acceptor, liable to indem missory note. In an action by the indorsee against the indorser of a pro- Maker of pro missory note, the maker is a competent witness for the plaintiff, for if the plaintiff succeeds the witness will be liable to the defendant, and if the defendant succeeds the witness will still be liable to the plaintiff: and his liability to the one cannot exceed his liability to the other. (3) And the maker is also, on ground, a competent witness for the defendant; as, to prove that the date of a note has been altered. (4) But it has been Acceptor of ruled, that in an action on a bill against the drawer, the acceptor is not competent for the defendant to establish a set-off, arising upon a bill accepted by the plaintiff and indorsed by the witness to the defendant, on the ground that the witness would be answerable to the drawer only to the amount recovered by the plaintiff. (5) bill. (1) 5T.R. 578. (2) 8 B. & C. 407. Supra, p. 105. (3) Venning v. Shuttleworth, Bayly on Bills, 5th edit. 536. (4) Levy v. Essex, Chit. Bills, 413, 7th edit. (5) Mainwaring v. Mytton, 1 Stark. 83. In Bayly on Bills, 4th edit. 540, it is observed on this "that if the drawer be procase, 128 CHAPTER IX. OF CERTAIN EXCEPTIONS TO THE GENERAL RULE ON THE SUBJECT OF INTEREST. IT has been stated, as a general rule, that all persons who gaining or losing by the event of a cause are incompetent to give evidence. To this general rule, however, there are several exceptions. Some of these exceptions depend upon acts of parliament: as, where persons entitled to restitution of stolen goods, informers, inhabitants of parishes and other districts, are by express enactment, or by necessary implication, rendered competent witnesses in proceedings, in the issue of which they are interested. Other exceptions arise from necessity or a principle of public policy: as, where evidence is received from agents, factors, or servants, notwithstanding that they may gain or lose by the event of the particular cause, in which their testimony is required. Objections on the ground of interest, proceed upon the supposition of an undue bias in the mind of the witness, and on the public utility of rejecting partial testimony. The presumption of bias may be taken off by shewing, that the witness has an equal or a greater interest the other way, or that he has given up what interest he had. And the presumption of public tected against the holder by a cross demand against the holder, quære, whether such cross demand, when set-off, is not equivalent to payment? And will not the drawer be entitled to call on the acceptor for the full amount of the bill, as much as if he had paid the full amount in money?" In an ordinary case of set-off, no doubt, this would be the case; but in Mainwaring v. Mytton, the set-off arose on a bill indorsed by the witness to the defendant; and if the second bill was indorsed to the defendant, by way of satisfaction or security for the amount of the first, it is clear, if the defendant obtained the benefit of it by way of set-off in an action on the first bill, he could not sue the witness, as he might have done, if he had been compelled to pay the first bill from his own resources. |