Bloor v Davies and Bloor
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 753
EXCH. OF PLEAS.
S. C. 10 L. J. Ex. 222.
7 M. &W. 236. BLOOR V. DA.VIES 753 blook ?. davies and bloor. Exch. of Pleas. 1840.-In an action of debt against a devisee on a bond of his testator, in which the question is whether the signature of the testator is a forgery or not, a party entitled, under the testator's will, to an annuity charged on his real estate, is not u competent witness for the defendant. [S. C. 10 L. J. Ex. 222.] Debt on bond, in the penal sum of £2000, brought against the defendants as the devisee and heir of Thomas Bloor, deceased. Plea, by the defendant Davies, non est factura : by the defendant Bloor, riens per descent. At the trial before Patteson, J., at the Denbighshire Summer Assizes, 1839, the defence on the part of the defendant Davies, the devisee, was that the signature of the testator to the bond was a forgery. Many witnesses were called on both sides to speak to their knowledge of the handwriting, and among those called for the defendant was a grand-daughter of the testator, who stated on the voir dire that she was entitled under his will to an annuity of £10 for her life, charged upon his real property (which it appeared was of consider-[236]-abla value). The witness was thereupon objected to as being incompetent, by reason of her interest to prevent the funds applicable to the payment of the annuity from being diminished by the plaintiff's obtaining judgment in this action : and the learned Judge (after referring to the stat. I Will. 4, c. 47, s. 2), being of that opinion, rejected the^witness. A verdict having been found for the plaintiff,- Welsby, in the following Michaelmas Term, obtained a rule nisi for a new trial, on the ground that the evidence ought to have been received :-relying on Nowell v. Davies (5 B. & Adol. 368). In last Easter Term, ilervis and W. Yardley showed cause. The witness was properly rejected. The case of Nowell v. Davies, upon which the defendant relies, appears to have been decided altogether upon the supposed authority of I'aull v. Brmvti (6 Ksp. 31), from which Lord Oetimati says, " there is no distinguishing it:" and no other reasons are given for the decision. Paull v. Vrmon was an action by an executor for a debt due to the intestate, and a creditor of the intestate was held to bo a good witness for the executor to prove the debt, on the ground, as stated by Macdonald, C. B., that it was not distinguishable from the case of an action by the intestate himself, for whom his creditor would clearly have been a witness. Nowell v. Daviex, on the other hand, was an action against executors for a debt of the testator, in which an annuitant under the will was held not to be disqualified by interest from giving evidence for the executors. But supposing the authority of Paull v. Brown to have been applicable, it may be questioned whether the doctrine laid down by Macdonald, C. L ., be a sound one. After the death of the testator or intestate, the creditor has nothing further to look to than the speoi-[237]-fic limited fund of which the estate consists, which cannot be...
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