Jordaine against Lashbrooke and Another
| Jurisdiction | England & Wales |
| Judgment Date | 10 May 1798 |
| Date | 10 May 1798 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 1154
IN THE COURT OF KING'S BENCH.
joedaine against lashbeooke and another. Thursday, May 10th, 1798. In an action by an indorsee of a bill of exchange against the acceptor, the latter may call the payee as a witness to prove that the bill was void in its creation. [4 Taunt. 464.] This was an action against the defendants as acceptors of the following bill of exchange; "Hamburgh 30th December 1790, for 1001. At three usances pay this my first bill of exchange to the order of Messrs. J. Thynne and Co. 1001. sterling, value in account, and place it to account of G-. W. as advised by ,David Hinr Meijer. To Messrs. T. Lashbrooke and Son, London :" which was accepted by the defendants, and indorsed by Thynne and Co. The declaration also contained the common money counts. At the trial at the sittings at Guildhall after the last term before Lord Kenyon Cb.J. Thynne was called by the defendants to prove that the bill, though dated at Hamburgh, was in fact drawn in London, in which case it could not be received in evidence, it not being stamped. On the part of the plaintiff it was objected that it was [602] not competent to the defendants, who had accepted the bill to produce any evidence to shew that the bill was void in its creation, and if it were, that Thynne the payee and indorser, was not a competent witness to prove that fact. Lord Kenyon overruled the objection. The jury found that the bill was drawn in London, and at first gave a verdict for the defendants, but by Lord Kenyon's advice, they afterwards iound a verdict for the plaintiff, subject to the opinion oi this Court on the above point; and the plaintiff took a y-erdict on the money counts only. ò Nolan on a former day in this term, obtained a rule,; calling on the defendants to shew cause why there should not be a new trial, on the ground that the evidence given on the part of the defendants, was inadmissible. This rule was moved for with a view of enabling the plaintiff to recover on the bill. ò Bayley at the same: time made a cross motion, to enter a non-suit, on the ground that if the evidence given by the defendants were properly received, the plaintiff was not entitled to recover, inasmuch as there was no evidence whatever on the part of the plaintiff, but the bill of exchange. - Both these rules now came on together, and were argued at length and with great ability by Erskine, Grarrow and Bayley, for the plaintiff, and by Mingay, Nolan, and Taddy, for the defendants: but as the cases cited and the points made at the Bar were afterwards taken notice of ,by the Bench, the arguments are here omitted. In the course of the argument it seemed to be admitted that, if the bill of exchange were inadmissible in evidence, the plaintiff could not recover on the common counts, there being no other evidence to support the plaintiff's demand, but the bill. - Immediately after the argument Lord Kenyon gave his opinion : but the other Judges desired to consider of the ease, and did not deliver their opinions until a subsequent day in the term. Lord Kenyon, Ch.J. As no other evidence was given by the plaintiff, but the bill of exchange, the only question is, whether the bill were or were not admissible in evidence, it not being stamped? If it were made in this country, there is no doubt but that it ought to have been stamped. The question for our consideration is, whether it was proved by competent evidence that the bil^ which professed to be a foreign bill and to have been drawn at Hamburgh, was really drawn in England 1 The case has been argued most ably, and every topic has been brought forward [603] on the part of the plaintiff that bears upon the point; but stilll have a very strong opinion upon this question, which I wish to deliver now lest it should be supposed that I entertain doubts upon it. The proposition attempted to be established by the plaintiff is this, that for some technical reason, or for some reasons of policy, a Court of Justice must shut its ears, and not suffer facts to be disclosed, which may be laid before them by a witness who is not infamous in his character, and who has no interest in the cause. If the law be 7T.B.6M, JORDAISffi V. LASHBROOKE 1155 so, there is some novelty in it. I have always understood the rule to be that where a witness is infamous, and his record of conviction is produced, or where he is interested in the event of the cause, he cannot be received; but to carry the rule beyond that, would be extending it farther than policy, morality, or the interests of the public require. The rule contended for by the plaintiff is this, that " however infamously you (the defendant) have been used, whatever fraud may have been committed on you, whatever may be the rights of other persons, if I (the plaintiff) the party to the fraud, can get on the instrument the name of the person who may be the only witness to the transaction, I will stand entrenched within the forms of law, and impose silence on that only witness, though he be a person of unimpeachable character, and not interested in the cause." But I cannot conceive on what ground such a proposition can be established. It is contradicted by every hour's experience : it would tend to shew that a party to an instrument shall not be permitted to contest the validity of it in a Court of Law, not only by his own evidence, but by any evidence whatever. But in actions brought on Mils of exchange and notes of hand, it is permitted to the defendant to shew that the bill or note was given on an usurious or a gaming consideration ; that is proved by every day's experience. Then the general proposition is not true. But does the policy of allowing such a defence to be made, apply to this ease as strongly as to those 1 Precisely the same. And not finding any case prior to that of Walton v. Shelly (a)1 in which such a defence was excluded, I cannot bring my mind to accede to the authority of that ease. This is one of the most important questions that can be discussed; on the rules of evidence, depend those facts which are introduced in every case, and therefore it is of the most importance to preserve those [604] rules. It has been argued that the defendant is estopped in this case : but estoppels are odious, and ought not to b& extended farther than the law has already carried them; the word " estoppel " does not apply to such a case as the present. When the drawee accepts a bill, he admits that the bill was signed by the person by whom it professes to have been made, but he does not thereby admit that the holder of the bill is in a condition to enforce payment of it. Most of the cases cited, I admit to be law. That of Bent v. Baker (a)2, is of great authority: it came here by a writ of error from the Court of Common Pleas, and though a writ of error was afterwards brought to reverse our judgment, it was at length abandoned. But I wish to correct an expression imputed to me in the report (5) of that ease, that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his testimony; because having frequently weighed this subject in my mind, and having not only entertained a contrary opinion, but having also always acted upon that opinion at Nisi Prrus, I think I never could have used the expression imputed to me. The case of instrumentary witnesses cannot, in my opinion, be distinguished from the present; and if not, there is abundant authority in support of my opinion. Sir J. Jekyl permitted the subscribing witnesses to a will, to give evidence to impeach the will, and the same thing was dorie in Lowe v. Jetliffe (c). It was then contended by the plaintiff in this case that policy required that the evidence offered by the defendant should be excluded : but it appears to me that there is at least as much policy in admitting it; for the consequence of admitting such evidence may be only to disappoint a remedy in a civil action, while the consequence of excluding it will be to encourage fraud and to authorise the person who has committed it to rely on his own fraud in a Court of Justice. Considering the question therefore in all these different points of view, and not finding any case prior to tfaft;of Walton v. Shelley...
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