Scott v. M'Lellan

Westos J. Two questions are presented to the consideration of the Court. Is the action sustainable upon the evidence admitted ?■ If not, ought the testimony of Bradshaw, the drawer, which ivas rejected by the Judge, to have been received ? The defendants are charged upon the common money counts, and as acceptors of a bill of exchange drawn by Bradshaw in favour of James Mxinro or order, and by him indorsed to the plaintiff. The bill was originally drawn in consideration of a [203] quantity of salt purchased of the payee by Bradshaw, as the agent of the defendants, which afterwards came to their use. If they were liable to the payee for the value of the salt purchased of him by their agent, that obligation or liability could not be assigned to the plaintiff, so as to enable him to maintain the action in his own name ; unless, of which there is no proof, the defendants, upon notice of such assignment, had expressly promised to pay the plaintiff as assignee. He cannot recover therefore upon the mon$y counts; there being no legal privity between hitn, and the defendants. 1 East. 98. Johnson v. Collings. if this action can be sustained at all, it must be upon the count, charging the defendants as acceptors. There was no direct acceptance of the bill, either in wilting or by parol; for although the defendants, at two several times, offered to pay thereon the sum of three hundred dollars, which they acknowledged they had in their hands of Bradshaw’s, they at each time expressly refused to accept the bill. There being no acceptance, or agreement to accept, after the bill was drawn, the plaintiff must rely upon an agreement to accept before it was drawn, either expressly made, or resulting from the relation in which Bradshaw stood to the defendants. If there had been an express agreement to accept this bill before it was drawn, such agreement is available to the party to whom it has been shewn, and who receives the bill upon the strength of it. Johnson v. Collings before cited, Mason v. Hunt & al. 1 Doug. 296. Wilson v. Clement, 3 Mass. 1, And it may be questionable whether the benefit of Such special agreement is negotiable. But no express agreement to accept is pretended in the present case. Did it result from the relation in which the defendants stood to Bradshaw ? He was their agent and supercargo. No case has been cited, nor can, it is believed, be found, tending to shew that in this capacity, he could bind his principals as acceptors of a bill which he might draw, without express authority from them to this effect communicated to, and relied upon at the time by, the party who received the bill, ■ But if such authority was incident to his character as supercargo, we have no evidence that it was exercised on this .occasion, It is true that as drawer of the bill, he undertakes that [204] the drawees shall accept; but that is his agreement, not theirs. The bill does not purport to have been drawn by him as their pgent. He signs his own name without any qualification ; and no other person is responsible or can be charged as drawer. Mayhew & al. v. Prince, 11 Mass. 54. We perceive therefore, nothing in the evidence admitted, which can have the effect to establish the liability of the defendants as acceptors. We are next to inquire whether the deposition of Bradshaw, . Was rightfully rejected, upon the ground of interest. It is contended that he stands indifferent between the parties. If so, his testimony is without doubt legally admissible. But such does not appear to be the fact. If the plaintiff prevails, Bradshaw will be liable to account to the defendants for the amount of the bill only. If they succeed, he, as drawer, will be answerable to the plaintiff, as holder, not only for the amount of the bill, but also for charges, damages, and interest. Upon principle there seems to be no good reason why a balance of interest should not have an equal effect to exclude a witness, as where he is interested to the same,amount in favour of one side only. It is insisted however, that the balance of interest, if it exists, is to be disregarded ; and express authorities to this effect have been adduced. In Dickinson v. Prentice, 4 Esp. 34. the drawer was received as a witness to prove the hand-writing of the acceptor; but the objection there taken to his competency and overruled w'as upon another ground, namely, that if the jury found the acceptance to be a fosgery, the forgery might be imputed to him, and he might be committed and tried for a capital offence. In a previous case, Barbor v. Gingell, 3 Esp. 60. the drawer was. admitted as a witness in an action against the acceptor, and an objection to his competency, similar in principle to the preced-. ing, was overruled. In Storer v. Logan & al. 9 Mass, 55. the drawer was called and admitted as a witness for the defendant, who was charged as acceptor. In the case of Ilderton v. Atkinson, 7 D. & E. 480. which was an action of assumpsit, the question was whether A. B. who had received the money due from the defendant to the plaintiff, received it in the character of agent; the Court hel^ that A. B. might be called by the defendant to prove his agency, notwithstanding it was objected [205] that if he had received the money under a misrepresentation of his own character, the defendant might, if he failed in his defence, recover from him the costs of the action then depending, as well as the money. The Court in this case considered the witness as having no interest which would exclude his testimony within the general rule oTlaw; and they did not place it upon the ground that his relation as agent brought him with-, in any exception to that rule. And upon the authority of this case, the Court decided in the .case of Birt v. Kirkshaw, 2 East, 458, that the indorser of a note, who had received money from the drawer to take it up, was a competent witness, in an action by the indorsee against the drawer, to prove, on'the part of the defendant, that he, the indorser, had satisfied the note, notwithstanding he was liable to the defendant, if the plaintiff prevailed, for the costs of the action, but to the plaintiff only for the amount of the note, if the defendant prevailed^ Except the case of Storer v. Logan, where the drawer was called to testify against his interest, the preceding cases, especially the two last, are authorities in favour of the admissibility of the deposition rejected. And if the two last cases, where the balance of interest was expressly overruled, and disregarded, are, to be considered as law, the deposition of Bradshaw ought to have been received. If no opposing decisions could be found, notwithstanding it might be difficult to reconcile these, cases with general principles, their authority would have a strong claim upon our, consideration^ It is not the amount of interest, which determines the question of competency. A small interest may have as much influence upon some minds, as a greater upon others. In order to exclude altogether testimony, which might be liable to that bias, by the general principles of the law of evidence, any direct interest, however small, renders the witness incompetent. In an action by an infant plaintiff, his prochien amy or guardian are not competent witnesses for him, as they are liable to costs. James v. Hatfield, 1 Strange, 548. Hopkins v. Neal, 2 Strange, 1026. So a person, who has given a bond to indemnify the plaintiff from the costs of the suit, is 'incompetent. Butler v. Warren, 11 Johns. 57. If therefore a person liable to the. costs of the action, but having no other interest therein, is in [206] competent, of which there seems to be no doubt, his interest, and the influence it may have upon his mind, is precisely the same where he is answerable to one of the parties, if he fail, fop the amount in dispute ; but to the other party, if he fail, not only for that amount, but also for the costs. If we are bound to consider him competent in the one case and incompetent in the other, it must be upon authority, not principle. But authorities of a more recent date are to be found, which appear to accord better with the general law of evidence than some of those before cited. In Jones v. Brooke, 4 Taunton, 464. which was an action against the acceptor of a bill accepted for the accommodation of the drawer, it was decided that the wife of the latter was an incompetent witness for the defendant to prove that the holder received the bill upon an usurious consideration, upon the ground that the drawer was bound to indemnify the acceptor, who had become such for his accommodation, not only for the principal sum but also for the costs of the action, if it should be sustained. This decision was not predicated upon the rule laid down in the case of Walton v. Shelly, that a party to a negotiable instrument shall not be received as a witness to prove it originally void, which prevails here; but which had been previously overruled in the English Courts. In Townsend & al v. Downing, 14 East. 565. the case of Ilderton v. Atkinson, before cited, was adduced by counsel to prove that a liability for costs on one side only did not render a witness incompetent; where he was equally liable to an action, in either event of the cause. Leblanc J, in reply said there was a late cause in C. B. where that matter had been questioned : and Lord Ellenborough, C. J. asked why there should not be an interest in costs, as well as on any other account. Hubbly v. Brown & al. 16 Johns. 70. was assumpsit by the indorsee against the defendants, as indorsers of a note made by Rufus Clap, payable to their order. Clap was offered and, although objected to, received as a witness for the defendants to prove that, after the note had become due, a further lime of payment had been given to him by the holder. Whether the witness was rightfully received or not, was a question referred to the consideration of the whole Court. Spencer C. J. after207 wards in delivering their opinion says, “ if this was an accom- “ modation note, the objection to the witness was well founded ; “ because if the defendants were rendered liable in this action; “ they would have a remedy over against the maker of the “ note, not only for the principal and interest, but for the costs.” And he cites with approbation the case of Jones v. Brooke, before mentioned. Upon the whole we are all of opinion that thd deposition rejected was inadmissible, upon the ground of interest; and the motion to set aside the nonsuit is overruled.