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the principal debtor, or a receipt of part payment from him, will not have this effect. This defence, however, may be rebutted on the part of the plaintiff, by proof that the agreement was made with the assent of the defendant; or, that, after full notice of it, he promised to pay;2 or, that the agreement was without consideration, and therefore not binding: (a)

$ 203. Competency of parties as witnesses. The competency of the parties to a bill or note, as witnesses, in an action upon it between other parties, has been briefly considered in the preceding volume ; 4 where it has been shown that they are generally held admissible or not, like any other witnesses, according as they are or are not interested in the event of the suit. Thus, in an action against the acceptor of a bill, the drawer is a competent witness for either party; for if the plaintiff recovers, he pays the bill by the hands of the acceptor, and if not, then he is liable directly for the amount. So, if a bill has been drawn by one partner in the name of the firm, to pay his own private debt, another member of the firm is a competent witness for the acceptor to prove that the bill was drawn without authority. But if the acceptance was given for the accommodation of the drawer, he is not a competent witness for the acceptor, to prove usury in the discounting of the bill, without a release.7 Nor is he competent, where the amount of his liability over, in either event of the suit, is not equal.8

$ 204. Same subject. So, also, in an action against one of several makers of a note, another maker of the same note is a competent

1 Ibid. ; Kennedy v. Motte, 3 McCord, 13; Walwyn v. S. Quintin, 1 B. & P. 652; Frazier v. Dick, 4 Rob. (La.) 249.

2 Chitty & Hulme on Bills, pp. 415, 416 (9th ed.); Story on Bills, $ 426. 3 McLemore v. Powell, 12 Wheat. 554.

4 Ante, vol. i. $ 399. Whether a party to a negotiable instrument, which he has put in circulation, is a competent witness to prove it void in its creation, quære ; and see ante, vol. i. $$ 383–385.

5 Dickinson v. Prentice, 4 Esp. 32 ; Rich v. Topping, Peake's Cas. 224 ; Lowber 8. Shaw, 5 Mason, 241 ; Humphrey v. Moxon, 1 Peake's Cas. 72 ; Chitty & Hulme on Bills, p. 673 (9th ed.); Storer v. Logan, 9 Mass. 55; Crowley v. Barry, 4 Gill, 194.

6 Ridley v. Taylor, 13 East, 176.

7 Hardwick v. Blanchard, Gow, 113 ; Burgess v. Cuthil, 6 C. & P. 282. And see Bowne 0. Hyde, 6 Barb. S. C. 392.

& Scott v. McLellan, 2 Greenl. 199 ; Jones v. Brooke, 4 Taunt. 463 ; ante, vol. i. § 401 ; Faith v. McIntyre, 7 C. & P. 44.

(a) Or that it was void under the stat. Draper v. Romeyn, 18 Barb. (N. Y.) 166; ute of frauds, and so not binding. Berry Wheeler v. Washburn, 24 Vt. 293; Greev. Pullen, 69 Me. 101. The test is whether ley v. Dow, 2 Met. (Mass.) 176. On this the agreement to give time or vary the question see the very able argument of contract in any other particular could Mr. Myers, in Re Goodwin, 5 Dill. C. have been enforced against the creditor. Ct. 140, p. 144.

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witness for the plaintiff, as he stands indifferent;1 but not for the defendant, to prove illegality of consideration. The maker is also a competent witness for the plaintiff, in an action by the indorsee against the indorser. But it seems, that he is not competent for the defendant in such action, if the note was made and indorsed for his own accommodation ; for a verdict for the plaintiff, in such case, would be evidence against him.4

§ 205. Same subject. The acceptor or drawee of a bill is also a competent witness, in an action between the holder and the drawer, to prove that he had no funds of the drawer in his hands, for this evidence does not affect his liability to the drawer. And even the declaration of the drawee to the same effect, if made at the time of presentment and refusal to accept the bill, is admissible, as prima facie evidence of that fact, against the drawer. But it has been held, that a joint acceptor is not competent to prove a set-off, in an action by the holder against the drawer, because he is answerable to the latter for the amount which the plaintiff may recover.? Nor is he a competent witness for the drawer to prove that he received it from the drawer to get it discounted, and delivered it to the plaintiff for that purpose, but that the plaintiff had not furnished the money ; for, being absolutely bound, by his acceptance, to pay the bill, he is bound to indemnify the drawer against the costs of the suit.

§ 206. Same subject. In an action by the indorsee against the drawer of a bill, the payee is a competent witness to prove the consideration for the indorsement. The payee of a note, who has indorsed it without recourse, is also a competent witness to prove its execution by the maker.10 But where the note was pay

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1 York v. Blott, 5 M. & S. 71.

2 Slegg v. Phillips, 4 Ad. & El. 852. 3 Venning v. Shuttleworth, Bayley on Bills, 422, [536,] [593] ; Fox v. Whitney, 6 Mass. 118 ; Baker v. Briggs, 8 Pick. 122 ; Levi v. Essex, 2 Esp. Dig. 707 ; ante, vol. i. 329, 400 ; Skelding v. Warren, 15 Johns. 270 ; Taylor v. McCune, 1 Jones, 460.

Pierce v. Butler, 14 Mass. 303 ; Van Schaack v. Stafford, 12 Pick. 565 ; Hubbly v. Brown, 16 Johns. 70.

» Staples 0. Okines, 1 Esp. 332; Legge 9, Thorpe, 2 Campb. 310.
6 Prideaux v. Collier, 2 Stark. 57; ante, vol. i. $$ 108, 109, 111, 113.

? Mainwaring v. Mytton, 1 Stark. 83; ante, vol. i. $ 401. Sed quære, for it seems that the acceptor would be liable to the drawer for the whole amount of the bill which he had not paid to the holder. Reid v. Furnival, 5 C. & P. 499; 8. c. 1 C. & M. 538; Johnson v. Kennion, 2 Wils. 262.

8 Edmonds r. Lowe, 8 B. & C. 407; 8. C. 2 M. & R. 427. 9 Shuttleworth v. Stephens, 1 Campb. 407, 408. 10 Rice v. Stearns, 3 Mass. 225. Or that the note had been fraudulently altered, Parker v. Hanson, 7 Mass. 470; or fraudulently circulated, Woodhull v. Holmes, 10 Johns. 231.

able to the payee or bearer, the payee has been held inadmissible to prove the signature of the maker, on the ground that he was responsible, upon an implied guaranty, that the signature was not forged.

$ 207. Same subject. In an action by the indorsee against the drawer or acceptor, an indorser is, in general, a competent witness for either party, as he stands indifferent between them. But an intermediate indorser of a bill is not a competent witness in a suit on the bill by a subsequent indorsee against a prior indorser, to prove notice of its non-acceptance. Thus, under the general rule that the indorser, standing indifferent, is a competent witness, he has been admitted to prove payment;4 time of negotiation by indorsement;5 alteration of date by fraud ; 6 want of interest in the indorsee ;7 usury ;8 and the fact of his own indorsement.9 So, to prove that the claim, which the defendant insisted on by way of set-off, was acquired by him after he had notice of the transfer of the note to the plaintiff.10 And generally the payee, after having indorsed the note, is competent to prove any matters arising after the making of the note, which may affect the right of the holder to recover against the maker. 11

1 Herrick v. Whitney, 15 Johns. 240; Shaver v. Ehle, 16 Johns. 201.

2 Richardson v. Allen, 2 Stark. 334; Stevens v. Lynch, 2 Campb. 332; 8. C. 12 East, 38; Birt v. Kershaw, 2 East, 458; Charrington v. Milner, 1 Peake's Cas. 6; Reay 9. Packwood, 7 Ad. & El. 917; Chitty & Hulme on Bills, p. 674 (9th ed.). But see Barkins v. Wilson, 6 Cowen, 471. See further, ante, vol. i. § 385, n., and 88 399–401.

8 Talbot v. Clark, 8 Pick. 51; Cropper v. Nelson, 3 Wash. 125. But a prior indorser has been held a competent witness, for the defendant, in an action against a subsequent indorser. Hall v. Hale, 8 Conn. 336.

4 Warren v. Merry, 3 Mass. 27; White v. Kibling, 11 Johns. 128; Bryant v. Rittorbush, 2 N. H. 212. So in Louisiana, if the indorser has not been charged with notice. Bourg v. Bringier, 20 Martin, 507.

5 Baker v. Arnold, i Caines, 248; Baird v. Cochran, 4 S. & R. 397; Smith v. Lovett, 11 Pick. 417.

Parker v. Hanson, 7 Mass. 470; Shamburg v. Commagere, 10 Martin, 18. 7 Barker v. Prentiss, 6 Mass. 430; Maynard v. Nekervis, 9 Barr, 81. & Tuthill v. Davis, 20 Johns. 287; Tucker v. Wilamonicz, 3 Eng. 157. 9 Richardson v. Allan, 2 Stark. 334. 10 Zeigler v. Gray, 12 S. & R. 42.

11 See the cases already cited in this section; also Powell v. Waters, 17 Johns. 176; McFadden v. Maxwell, Id. 188. In several of the United States, all the parties liable on a bill or note may be sued in one action; in which case, however, the parties are respectively entitled to the testimony of any other parties defendant in the suit, in the sarne manner as if they had been sued in several actions. See Wisconsin Rev. Stat. 1849, c. 93, $$ 9, 19, 20; Michigan Rev. Stat. 1846, c. 99, SS 6, 12, 17.

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$ 208. Carriers by land and water subject to same liabilities. There is no distinction, in regard to their duties and liabilities, between carriers of goods by water and carriers by land, nor between carriers by ships, steamboats, and barges, and by railroad cars and wagons. The action against a carrier in any of these modes is usually in assumpsit upon the contract; and this is generally preferable, as the remedy in this form survives against his executor or administrator. The declaration involves three points of fact, which the plaintiff must establish, upon the general issue, - namely, the contract; the delivery of the goods, or, in the case of a passenger, his being in the carriage; and the defendant's breach of promise or duty. Carriers are also liable in trover, for the goods, and in case, sounding in tort, for malfeasance or misfeasance; but although the remedy in tort is on some accounts preferable to assumpsit, (a) the form of action does not very materially affect the evidence necessary to maintain it.

i See 1 Chitty on Plead. 161, 162 (7th ed.) (125, 126]; Govett v. Radnidge, 3 East, 70.

(a) Trover will not lie against a com- who innocently receives goods from a mon carrier for non-feasance only. Bow. wrongdoer, without the consent of the lin_v. Nye, 10 Cush. (Mass.) 416; Collins owner, express or implied, has no lien v. Boston & M. R. R., Id. 610; Scoville v. upon them for their carriage, as against Griffith, 2 Kernan (N. Y.), 509. There such owner. Robinson v. Baker, 5 Cush. must be a previous demand. Robinson v. (Mass.) 137; Fitch v. Newberry, 1 Doug. Austin, 2 Gray (Mass.), 564. And where (Mich.) 1. a carrier, having no legal claim upon the The distinction between assumpsit and goods except for the freight, refuses to de. case is now generally unimportant, by realiver them unless a further sum should be son of the changes in the modes of pleading. first paid, the consignee is not bound to Cf. Hutchinson on Carriers, $ 737 et seq. tender the freight money, and the carrier's When the form of declaration is only on refusal to deliver is evidence of a conversion the liability of a common carrier, the plainof them. Adams v. Clark, 9 Cush. (Mass.) tiff cannot recover for losses happening 217; Rooke v. Midland R. Co., 14 Eng. Law from misrepresentations of the defendant's & Eq. 175. The receipt by the owner of agent. Maslin v. Balt. & Oh. R. R. Co., the whole number of casks of goods shipped 14 W. Va. 180. When a common carrier does not prevent him from maintaining an refuses to carry goods, as in the case of action against the carrier for a loss of part his employees striking, and leaving him of their contents, unless he receives the unable to handle the freight, the shipper's property as and for a compliance with the remedy is by an action at law, not by contract of the carrier. Alden v. Pearson, mandamus. People v. New York, &c. R. Ř. 3 Gray (Mass.), 342. A common carrier, Co., 22 Hun (N. Y.) 533.

$ 209. Contract to be proved as laid. In any form of action, the contract must be proved as Jaid in the declaration. If the contract is stated as absolute, proof of a contract in the alternative will not support the allegation, even though the option has been determined ;2 neither will it be supported by proof of a contract containing an exception from certain classes of liability; as, for example, that the carrier will not be responsible for losses by fire, perils of the seas, or the like. But if the exception does not extend to the obligation of the contract itself, but only affects the damages to be recovered, the declaration may be general, without any mention of the exception, the proof of which at the trial will be no variance. (a) Thus, where the action was in the common form of assumpsit, and the evidence was, that the carrier had given notice that he would not be accountable for a greater sum than £5 for goods, unless they were entered as such and paid for accordingly, the variance was held immaterial.4 And if, in a like form of action by the consignor of goods, the allegation is, that the consideration or hire was to be paid by the plaintiff, and the evidence is, that it was to be paid by the consignee, it is no variance; the consignor being still in law liable. A variance between the allegation and proof of the termini will be fatal. (6) But here, the place, mentioned as the terminus, is to be taken in its popular extent, and not strictly according to its corporate and legal limits; and therefore an averment of a contract to carry from London to Bath, is supported by evidence of a contract to carry from Westminster to Bath. But in an action

1 Ireland v. Johnson, 1 Bing. N. C. 162; Bretherton v. Wood, 3 B. & B. 54; Max . Roberts, 12 East, 89.

2 Penny v. Porter, 2 East, 2; Yate v. Willan, Id. 128; ante, vol. i. $$ 58, 66; Hilt v. Campbell, 6 Greenl. 109.

8 Latham v. Rutley, 2 B. & C. 20. And see Smith v. Moore, 6 Greenl. 274; Ferguson v. Cappeau, 6 H. & J. 394.

4 Clark v. Gray, 6 East, 564.

6 Moore v. Wilson, 1 T. R. 659; Turney v. Wilson, 7 Yerg. 340; Moore v. Sheridine, 2 H. & McH. 453. If the declaration is on a loss by negligent carrying, it will not be supported by proof of a loss in the defendant's warehouse, before the goods were taken to the coach to be carried. Roskell v. Waterhouse, 2 Stark. 461; In re Webb, 8 Taunt. 443; s. c. 2 Moore, 500.

6 Tucker v. Cracklin, 2 Stark. 385.

7 Beckford v. Crutwell, 1 M. & Rob. 187; 8. c. 5 C. & P. 242; Ditcham v. Chivis, 4 Bing. 706; 8. c. 1 M. & Payne, 735. See also Burbige v. Jakes, 1 B. & P. 225.

(a) Ferguson v. Cappeau, 6 H. & J. shipped at any other time than that men394; Fairchild v. Slocum, 19 Wend. (N. tioned in the writ. Witzler v. Collins, 70 Y.) 329; Tuggle v. St. Louis, &c. R.R. CO., Me. 290. 62 Mo. 425; Lawson, Carriers, p. 380. (6) Fowles v. Great Western R. Co., 16 But no evidence is admissible of goods Eng. Law & Eq. 531.

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