Thomas Howell, and Thomas Scott, the Younger, Assignees of the Estate and Effects of John Waters and David Jones, Surviving Partners of Robert Waters, Deceased, Bankers v William Jones
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1834 |
| Date | 01 January 1834 |
| Court | Exchequer |
English Reports Citation: 149 E.R. 1009
EXCH. OF PLEAS.
S. C. 4 Tyr. 548; 3 L. J. Ex. 255. Referred to, Maingay v. Lewis, 1870, Ir. R. 5. C. L. 230.
[97] thomas howell, and thomas scott, thb younger, Assignees of the Estate and Effects of John Waters and David Jones, Surviving Partners of Kobert Waters, Deceased, Bankers 11. wim.iam jones. Exch. of Fleas. 1834. - B., in January, 1825, gave the following guarantee to A., a banker: " Please to open an account with, and honour the cheques of, C. on Mill Account, for whom I will be responsible" The aeoount was accordingly opened, and advances were made by A. It appeared to be the mode of dealing at the bank for the customers to give acceptances occasionally for the balance of their accounts. In February, 1827, A. ceased to make advances. In October, 1827, a payment into the bank was made by B. In February, 1828, (and not before), A. took B.'s acceptance at three months for the amount of his balance. It did not appear that B. had actual knowledge of the course of business at the bank, although he was solicitor to the (6) In Morgan v. Brydges, 2 Stark. N. P. C. .'SI 4, the bailiff, who had executed the writ, waa called to produce the warrant, and, being sworn, he produced arid proved the warrant from the defendants. His cross-examination was objected to on the ground that this was, in fact, the witness's own suit, and not the sheriff's ; but Lord Ellenborough permitted him to be cross-examined. It was not even urged here, that the witness was exempt from cross-examination on the ground of simple production, for he proved the warrant. Lord Ellenborough observed, that, since he had been called as a witness, he might be cross-examined. In Simpson v. Smith, I Phill Ev. 260,( z), !6th ed., (an action for maliciously making a charge of felony), the plaintiff's counsel, (having called upon the justice to produce the information, was proceeding to prove it by the justice's clerk, when it was insisted by the defendant's counsel that he should be allowed to cross-examine the justice ; but Holroyd, J., held that this could not be done, and that the plaintiff's counsel might proceed to prove the information in the regular manner. Where, on an indictment for perjury, the attorney for the prosecution was called and sworn, and produced a copy of a declaration in an action brought by the defendant against the prosecutor, but he was not asked any question on the part of the prosecution ; on its being insisted that the defendant had a right to cross-examine this witness, Abbott, C. J., was of opinion, that, in strictness, the defendant was so entitled. Rex v. Brooke, I Stark. N. P. C. 472. That the other side cannot insist upon a person, who is called only to produce documents, being sworn, , see Davis v. Dale, M. & M. 514; and Hex v. Murtis, id. 515, (a) ; and Evans v. Maxeley, 2 Dowl. P. C. 364. In the case of Summers v. Mosdey, Hilary Term, 1834, the Court of Exchequer, after consulting the other Judges, determined that a party is not entitled to cross-examine a witness who is called by the other party merely to produce a document under a subpoena, duces tecum. This case was mentioned to the Court bf King's Bench, in the case referred to, by Mr. Baron Gurney, which was the same case as that mentioned by Mr. Baron Alderson, and they considered the point so completely settled, that they refused to grant a rule nisi. 1010 HOWELL V. JONES l C. M. & R. 98. bankers:-Held, that taking the acceptance was a giving of time to the debtor, and that B., the surety, was thereby discharged. [R. C. 4 Tyr. 548; 3 L. J. Ex. 255. Referred to, Maingay v. Lewix, 1870, Ir. R. 5 C. L. 230.] Assumpsit. The first count of the declaration stated, that, heretofore, in the lifetime of the said Robert, and before the bankruptcy of the said John and David, to wit, on the 4th day of January, in the year of our Lord 18L!5, and from thence until and at the time of the death of the said Robert, they the said Robert, John, and David were carrying on the business of bankers in co-partnership, to wit, in the county of Carmarthen, and afterwards, and in the lifetime of the said Robert, and before the bankruptcy of the said John arid David, to wit, on the day and year aforesaid, in the county aforesaid, in consideration that they the said Robert, John, and David, at the special instance and request of the said defendant, would open an account with and honour the cheques of one Henry Bowers on a certain account, to wit, an account to be called the "Mill Account," he, the said defendant, undertook, and then and there faithfully promised the said Robert, John, and David, to be responsible to them for him the said Henry. And the said plaintiff's aver, that the said Robert, John, and David, confiding in the said promise and undertaking of the said defendant, did then and there, in the lifetime of the said Robert, and before the bankruptcy of the said John and David, open an account with the said Henry on the said mill account; and did afterwards, to wit, on the day and year aforesaid, and on divers other days and times in the lifetime of the said Robert, and before the bankruptcy of the said John and...
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