Burgess v Merrill
| Jurisdiction | England & Wales |
| Judgment Date | 03 June 1812 |
| Date | 03 June 1812 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 410
Common Pleas Division
910 BURUEN8 7'. MERRILL 4 TAUNT, 467. acceptor might recover in a special count ; whereas it was hazardous and uncertain whether the holder, if he failed against the acceptor, might ever succeed in the action against the drawer. This objection has not been overruled, but it has never before been taken, either in Ilderton v. Atkinson, or any of the other cases of that class. Shepherd mentioned a MS. case of Carter v. Hemel, in which he was engaged with Mr. Bearcroft, and which was one of the first causes wherein Lord Kenyon C. J. received the drawer of a bill as a witness in an action on the bill ; two objections were made, the first, as in Walton v. Shelly, 1 T. R. 296, that the witness was not competent to impeach the instrument to which he had set his name : the second, that he was an interested witness. A new trial was granted, and on the second trial a release was given, and be had ever thought, that that was the right practice. The drawer does not stand indifferent in this case, for another reason, that he could never set up the usury committed by the first indorses as a defence against the acceptor ; his only possible answer would be, payment: but if the action is brought against the drawer [467] by the holder, the drawer may avail himself of the usury. This differs the case from that of principal and surety. [Mansfield C. J. observed that iu BO and Kershaw it was held that the acceptor might recover his costs as well as the contents of the bill, and that was the only case in which that distinction bad been noticed.] The case of Buckland v. Tankard was in point with the present case, where it was held by Lord Kenyon, that the witness was properly rejected, because his situation would be bettered by the event of the verdict, inasmuch as, if the Plaintiff should succeed, the witness would be put to much greater difficulties to get back his money, than if the Plaintiff should be foiled through his testimony ; and that reasoning is very applicable to the present case. Dingwall v. Dander, 1 Doug. 247. The acceptor may be sued at any time, unless he has been expressly discharged. Whittenbary v. Jackson cited iu Walton v. Shelley, 1 T. R. 298, is also in point, where a witness who had indorsed an accommodation-note of the Defendant's testator to the Plaintiffs, being called to prove that be had satisfied the note to the Plaintiffs, was rejected by Buller J. because...
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Maragh v Williams & Williams; Maragh v Williams
... ... p.512Howe v. Smith (1884) 27 Ch.D. 89 ... 21 On the third question, it has been held in Burgess v. Merrill (1812) 4 Taunt. 468 that where a contract made by an infant jointly with adult persons has been repudiated by the infant, an action on the ... ...
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Boyle against Thomas Webster and William Webster. [QUEEN'S BENCH.]
...nonjoinder; replication, that the other acceptor was an infant: would not that be good 1 ] That was the case of Burgess v Merrill (4 Taunt. 468), where infancy was replied, and the fact admitted by demurring. [Lord Campbell C.J. Is not entering a nolle proaequi a solemn admission?] That app......
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Brittain v Kinnaird and Longley, Esqrs
...pleading in abatement that the other acceptor ought also to have been sued, the plaintiff may reply his infancy. Butgess v. Merrill, 4 Taunt. 468. See the note to Cabell v. Vaughan, 1 Wins Saund. 291, b. where most of the law on this subject is collected by the learned editor of those repor......