Where one plea is pleaded to several notes or bills, the plaintiff may often reply by one replication, which will be construed distributively.(p)

EXCEPT in actions for personal wrongs the party on whom lies the burthen of proof is entitled to begin. But if an error in this respect be committed at the trial, a new trial will not therefore be granted, unless some injustice has been done. (a)

Where, in an action on a bill of exchange, the only issues lying on the plaintiff arise on the common counts, the plaintiff is not entitled to begin, unless he proposes to give evidence on those issues ;(b) and using the bill as evidence under the common counts will not be sufficient. A defendant will not entitle himself to begin, by admitting all the issues that lie on the plaintiff. (c)

(p) Wood v. Peyton, 13 M. & W. 30.

(a) Cannam v. Farmer, 3 Exch. Rep. 698.

(b) Homan v. Thompson, 6 C. & P. 717; Smart v. Rayner, ibid. 721; Oddy, ibid. 728; 3 Dowl. 722, 2 C., M. & R. 103, S. C.

(c) Pentifex v. Jolly, 9 C. & P. 202.

Mills v.

[*348]

*A plaintiff cannot split his case, (d) except by first proving only the issues which lie on him.

The being a party to the same bill or note, on which the action is brought, is of itself no objection at common law to the competency of a witness. Unless he is directly and necessarily interested in the event of the suit, and is called in support of such interests, or unless a verdict for or against the party by whom he is called, would be admissible evidence for or against the witness in another suit, the witness is competent at common law.(e)

And he was first made a competent witness by statute in cases where the ground of objection was merely, that the verdict or judgment would be evidence for or against him. The witness's name was to be indorsed on the record; and then the verdict or judgment was not to be evidence for or against him: 3 & 4 Wm. 4, c. 42, ss. 26 & 27. The decisions as to the effect of this statute are not very consistent. But it would seem to have applied in most cases where liability to costs would otherwise disqualify a witness.(ƒ)

But the decisions on the former act are now immaterial, for incapacity from interest is now removed in nearly all cases, by Lord Denman's Act, 6 & 7 Vict. c. 85.

It may, however, not be entirely useless to state what the common law on the subject of the interest of witnesses in actions on bills of exchange still is.

If the witness have an interest both ways, he stands indifferent between the parties, and may give evidence for either. Thus, one joint maker of a note is evidence for the payee to prove the handwriting of the other maker, the defendant; for, if the plaintiff recovers of the defendant, though the witness will be discharged from his liability to the present plaintiff, he will be liable to the defendant for contribution. If, on the other hand, the plaintiff fails, though the witness will then be liable to the plaintiff, he will be entitled to recover contribution from the defendant. In either case, he must eventually pay his part, and no more, and is, therefore, a competent

(d) Jacobs v. Tarleton, 17 L. J. 194, Q. B.

(e) Bent v. Baker, 3 T. R. 27; Jordaine v. Lashbrooke, 7 T. R. 601; Smith v. Prager, 7 T. R. 60; Jones v. Brooke, 4 Taunt. 464.

(ƒ) Kilpack v. Major, 11 L. J. 82, Q. B.; 2 Q. B. Rep. 737, S. C.

witness on either side.(g) So, where one of two partners delivered a *bill, drawn by the partnership, to a separate creditor of his [*349] own, in payment of a private debt, it was held, in an action by the creditor against the acceptor, that either partner was a competent witness for the defendant, the acceptor: the partner indebted, because, if the plaintiff recovered, the acceptor would charge the firm, and the firm would charge him; and, if the plaintiff failed, the plaintiff would do the same. The other partner was competent, because, if the plaintiff recovered, the firm would be liable to the acceptor, and, if not, to the plaintiff, and in both cases the firm could charge the sum to the indebted partner's private account.(h)

But, if the witness be liable for more costs in one case than in the other, he is interested and incompetent. Thus, in an action by the indorsee against the acceptor of a bill, accepted for the accommodation of the drawer, the drawer is not a competent witness to prove that the holder came to the bill on usurious consideration; for, though as to the sum due on the bill the witness may be indifferent, since he would have to pay it to the acceptor if the plaintiff recover, and to the plaintiff if the plaintiff do not recover (for in action against himself he cannot be a witness to prove the usury,) yet the plaintiff cannot charge him with the costs of this action, which the acceptor may do. He cannot, therefore, be a witness for the acceptor. (2) Upon the same principle, it should seem that, in an action on a joint and several promissory note, though if the action be against the principal, the surety is a good witness either for plaintiff or defendant, and if the action be against the surety, the principal may be a witness for the plaintiff, yet the principal cannot be a witness for the defendant, the

(g) York v. Blott, 5 M. & Sel. 71; Lockart v. Graham, 1 Stra. 35; Poole v. Palmer, 9 M. & W. 71; Russell v. Blake, 2 Scott, N. R. 574; 2 M. & Gr. 374, S. C.; Page y. Thomas, 6 M. & W. 733.

(h) Ridley v. Taylor, 13 East, 175.

(i) Jones v. Brooke, 4 Taunt. 464, recognised in Stratton v. Matthews, 18 L. J., Exch.; 5. This decision overrules the case of Birt v. Kershaw, 2 East, 458, and Shuttleworth v. Stephens, 1 Camp. 407; but see Roach v. Thompson, M. & M. 488; 4 C. & P. 194, S. C.; and Bagnall v. Andrews, 7 Bing. 217; 4 M. & P. 839, S. C. Whether the witness's name can be indorsed on the record under the 3 & 4 Wm. 4, c. 42, does not seem clearly settled. According to Burgess v. Cuthill, 1 Mood. & R. 315; 6 C. & P. 282, S. C., it cannot. According to Faith v. M'Intyre, 7 C. & P. 44, it may, and with this case accords the most recent decision, Kilpack v. Major, 2 Q. B. 737. But Lord Denman's Act (6 & 7 Vict. c. 85,) has rendered these subtleties unimportant.

surety; for if the surety is charged, he may recover against his principal, not only the debt, but the costs of the first action. (k) But if the accommodation acceptor release the drawer, he will be rendered competent.(7) Again, where the defendant, the drawer, drew a bill

for 5001. on the acceptor for the acceptor's accommodation, [*350] and the acceptor delivered it to the witness to get it discounted,

and the witness delivered it to the plaintiff, it appearing that the witness was previously indebted to the plaintiff in the sum of 89%., he was called by the defendant's counsel, to prove that the plaintiff gave no consideration for the bill, and that it was not delivered by him to the plaintiff in payment of his own previous debt of 897., but that the plaintiff might discount it. It was insisted that the witness was indifferent, inasmuch as if the verdict was for the defendant, the witness would still be liable for his debt to the plaintiff; and, if the plaintiff succeeded, the witness would be liable to the defendant. But Gibbs, C. J., said, "The witness bought goods of the plaintiff, and afterwards gave him this bill, out of which bill, according to the evidence, the price of those goods was to be paid. The defence is, that the witness did not deliver the bill as payment, but in order that the plaintiff might discount it. Now, if the witness received the bill merely to get it discounted, and then pledged it for a debt of his own, I am clearly of opinion, that, in a special action, he would be liable to the costs of this action, as special damage resulting from the violation of his duty."(m)

In an action by the indorsee against the acceptor, the drawer or indorser is a competent witness for the plaintiff, to prove his own indorsement; for, though recovery by the plaintiff will discharge him from his liability to the plaintiff, yet, "the indorser, by proving the handwriting to be his own, will charge himself;"(n) and, if the plaintiff resorts to him, he will have his remedy against the acceptor.(0) He is also compet ent to prove the handwriting of the acceptor.(p) And he is a competent witness for the defendant, to prove that

(k) See Townend v. Downing, 14 East, 565.

(1) Hardwick v. Blanchard, Gow's N. P. C. 113.

(m) Harman v. Lasbrey, Holt, N. P. C. 390; Edmonds v. Lowe, 2 Man. & Ry. 427; 8 B. & C. 407; Hall v. Rex, 6 Bing. 181; 3 Moo. & P. 273, S. C.

(n) Per Lord Ellenborough, in Richardson v. Allan, 2 Stark. 334.

(0) Willsheir v. Cox, 1826, Chitty, 9th ed. 673; Hobson v. Richards, ib. 673. (p) Dickinson v. Prentice, 4 Esp. 32; Barber v. Gingell, 3 Esp. 60.

the plaintiff discounted the bill upon an usurious consideration,(q) or that it has been paid.(”)

In an action by the indorsee against the drawer, a prior indorser is a competent witness to prove that the defendant promised to pay the bill after it had become due.(8) And the acceptor is a competent *witness for the plaintiff, to prove that he had no effects of the drawer in his hands, and consequently that notice of dis- [*351] honour was unnecessary; for though a recovery by the plaintiff may, perhaps, relieve him from his liability to the present plaintiff, yet there is still, prima facie, a debt due from himself to the drawer, and the evidence given by him in this action cannot have any effect in an action to be brought against himself.(t) And the payee in such an action is competent to prove that a bill purporting to have been drawn abroad, was in reality drawn in England, and was, therefore, inadmissible in evidence. (u) In an action by the second indorsee against the first indorser, the second indorser was held a competent witness to prove that he, on receiving notice of dishonour from the plaintiff, had communicated due notice to the defendant.(v) The Court of King's Bench held, in the case of Buckland v. Tankard, (w) that a witness who might have a remedy by action, whether the plaintiff or defendant had a verdict, was incompetent, because, under the particular circumstances, he would have a greater difficulty in one case than in the other to enforce that remedy. But it has been observed, that this is the only case which has been decided on such a ground, and that from the leading cases on this subject, which rest on the broad ground of interest, such a circumstance may now more properly be considered as having a strong influence on the witness, but not as forming any solid objection to his competency.(x)

(9) Rich v. Topping, Peake, 224; 1 Esp. 176, S. C.; Brard v. Ackerman, 5 Esp.

119.

(r) Charrington v. Milner, Peake, 6; Phetheon v. Whitmore, ib. 40; Humphrey v. Moxon, ib. 52; Adams v. Lingard, ib. 117.

(s) Stevens v. Lynch, 2 Camp. 332; 12 East, 38, S. C. In an action by indorsee against acceptor, where issue was joined on a plea of payment, a prior indorser was held to be a competent witness for the defendant, though he acknowledged the voire dire, that he received the money from defendant to pay plaintiff the bill Reay v. Packwood, 7 Ad. & Ell. 917.

(t) Staples v. Okines, 1 Esp. 332; Legge v. Thorpe, 2 Camp. 310; 12 East, 171, S. C.

(u) Jordaine v. Lashbrooke, 7 T. R. 601.

(v) Chitty, 9th ed. 674.

(w) 5 T. R. 579.

(2) Phillipps on Evid., 7th ed. 69.