Dennistoun v. Fleming

Rogers, J. The drawer of a bill of exchange is not a competent witness for the endorser, in an action against the acceptor, because of his liability to damages, interest, and costs, if the party calling him should not prevail; Scott v. McLellan, 2 Greenl. 199. The same point is ruled in Smith v. Thorne, 9 Watts, 144, on the authority of the Bank of Montgomery v. Walker, 9 Serg. & Rawle, 229; Hubbly v. Browne, 16 Johns. 70. In Smith v. Thorne, it is decided, that in an action by the holder against the acceptor of a bill of exchange, the drawer is not a competent witness to prove that the bill was drawn for his accommodation, because he is liable to reimburse the defendants the costs, should the verdict be against the latter. These authorities dispose of the first error, as there can be no difference whether the suit is on the acceptance, or for refusing to accept. In every other respect the cases are identical. But it is said the court erred in rejecting the deposition of Crosby, after the letters of the 21st November, 1839, and 21st [530] June, 1840, from Fleming and Marshall, had-been read to sustain ■the second count in the declaration. Without stopping to examine particularly the second count, which we think discloses no cause of action, I am at a loss to understand how the letters referred to make Crosby, the drawer, competent. If the plaintiff fails, he is liable to an action at the suit of the payee, and by the laws of Louisiana, to 10 per cent, damages, although he may be the agent of the drawee; his name appears on the bill, not as agent, but as principal.- But the letter of the 21st January, 1840, only authorizes Crosby to draw in case he is not in funds at a given time. Now the defendant alleges they refused to accept because he was in funds, and therefore had no right to draw. If it had appeared, and had been so alleged in the second count, that the plaintiffs received the draft on a promise by the defendants that it would be accepted, a different case would be furnished. As this, however, is neither proved nor alleged, we perceive nothing in the case to make this an exception to the rule so clearly settled in the cases cited. Judgment affirmed.