Delaware state journal. [volume] (Wilmington, Del.) 1870-1883, 1873-05-31

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forwards renewed.
That In Oct. III Lewis q Son borrowed l
further sum of $500 from Cleaden for
ne day for which they paid Cleaden s.
nd q check. This was not paid the next
lay nor for some time, when on March 10,
N, they gave Clseden note at 30 days for
800, also 5000 (totai Of said note
'560.3S, fof the interest, &C., % the
original $1,000 note, and also gave James
Webb as an indorser, and claimed that
his $500. 33 note now sued on was founded
IN an usurious consideration, and that
lanes Webb was only an accommodation
ndorser, and never did receive one dollar
n the way of value.
James Lewis, one Of the firm Of Lewis
Son, aud one Of the makers OF this note,
v as called as q witness 10 establish these
Iaets. Before he was sworn was be
objected 10 by Mr.. Bayard, Eco, counsel
for plaintiff on these grounds
|. That there was nothing on the face
Of this note to show but that 1t was
fair and legitimate business note or an
ordinary commercial note properly drawn |
by Lewis and Son to James Webb, the |
peyee, and by him Endorsed to james |
Cleaden, and by him Endorsed for collec- |
ton, and that this being the facts |
from the note gathered he was
not or could not be q competent
witness 10 this, that as the present suit
had been brought against Webb his surely
that Lewis could be sued by said surety
Tin case Judgment against him) and re-
cover the face of the note and costs as
well as interest and damages which he,
Webb, had sustained in so being COM
PEELED to pay and in this he was intcr-
ested directly in the result Of the suit,
2. That the broad rule, as laid down
by Lord Mansfield and sustained by the
Supreme Court Of the United States,
would exclude him, which In effect In
general that when man puts his name
to piece of paper, and tells to the world
for VALUE received, promise to pay so
much money without defalcatlon, and as
such lt.goes into circulation, he shall not be
allowed TO come Into Court and stultify
himself by saying, Il was not given for
value, and deny the plain, simple face OF
the note and tue truth thereon get forth.
He cited many cases, both English ard
American, in support OF these principles,
finishing his argument at about 2 O'Clock.
Mr.. Higgins replied, and disposed Of the
6rst election by saying that Mr.. Lewis
had been released from liability for costs
&c, and this objection was fully met,
and as to the second objection he said
that the current OF authority in America
has been against the rule as laid down by
the great English judgei and further,
that 10 these States which still adhere TO
II, they only apply 1t to these cases OF
nsootlo6ls paper when the suit has been
brought by an innoeent holder or f'dorser
for valt.e. That II had been thus modified,
faA In a nj
Massachusetts and Pennsylvania as well
as some others.
He cited many authorities to sustain
this principle, and argued the point at
length, continuing until near the hour oil
adjournment.
The Court learning that the jury In
the case of Pearce Us. Provost had moi
vet come TO conclusion ordered the Clerh
to say that should they agree during tn,
night they might bring In sealed
verdict. This verdict will govern th'
other case by consent Of COUNSEL Th'
Court accordingly took recess until
tomorrow morning al 10 O'Clock.
NEW CASTLE, May 9Th, 1s7S.-In th'
case of b. c. Pearce, q. b. a., vs. Edmund
Provost, p. b. T., 1.-THE bet ease) the Jury
Who were charged by the Court yesterda.
I
night. which was for plaintiff provost.
for 400 Ohe amount of his deposit) will
interest from the time agreed upon be
tween the counsel. The jury. however
retired. by direction of the Court, 10 thei
chamber to compute the interest, an'
soon afterwards returning rendered yer
dict for t114.62 for plaintiff.
In the ease of James Cleaden W. jaime
Webb, upon the question of the admissi
bility Of James Lewis, one OF the maker
T OF the promissOry note upon which thi
suit was brought, as a witness, the Couf
decided he was competent witness. Tn
| opinion OF the Court was delivered b
! Judge Houston, In substance as follows
! This Ia tie broad and simple question
whether the maker of a note Is compt
! tent witness in suit against an indorse
7 on the note. At common law, befor
, there was any decision upon the subjec
5 he would have been admissible, unle:
I Interested In the suit In this case he ha
I been released from ali costs incurred, an
r is, therefore, not excluded on that grouni
4 In Walton Us. Shelley the Court, Il
y the first time, took exception 10 the ru
in favor of commercial paper on u
:. ground of public policy. But the decisio
" was not satisfactory to the Bar or Bene
}, in England, and in Jordauil Us. Lashbroo
n decided afterwards) ii was overrulet
:. The English statutes against the excl
II sion of witnesses were passed 10 the thi
o and fourth years Of the reign of Villa
", and from the fact that they did n
lie see proper TO make an exception In fav
Is of commercial paper, the presumption
lie they were satisfactory. In this count
re il is questionable whether the Fed raj
t, cIsions in the United States Courts a
Is entitled to more weight than those
y. England and of other of the Unit
ie States, except from the acknowledg
ne ability of the tribunals in which they we
decided. The decisions of other States O
&c in conflict, SO also .ars the preceden
Of The learned Judge here cited one Gree
i'd leaf on evidence, section $50.
'st The question whether the holder
= the note had notice Of the usurious trai
as action has not arisen, and It is not
el cessary to decide II. As TO the conf
of tency Of the witness, we have arrived
he our conclusion In accordance with Q
he former decisions, and OF those OF ma
Ter of the other States, on the broad quest
TO of public policy. Exceptions 20
be opinion were noted.
ty James Lewis was then called BY
~ Gelenct " lloNo hhO hoNaiSeo N~N7NN
g, lion for the note.
nd 10 The question s'what did Mr.. Clead
he give you for the Rete " Mr.. Cord
is objected that such testimony was not
by missible on the pleading of "non sssun
he sit." It would be offering in evidel
u uuder the general issue" to plead
indirect effect of statute. Where
aid statute directly prohibits an act, 1t
he necessary to plead II specially, and
mt party is entitled to notice of what defel
his Ia to be made against claim, which
, is on its face valid and just. Several auth.
Ter, tiles were cited by the learned counsel
pth support of his objection. Mr. Higg
nod argued contra, producing also quit
,od number of authorities and was follow
!. n by Mr.. Bayard in reply. The Court
ged cided that any defence which shows
Ter. plaintiff, at the time the action
for brought was not entitled to recover,
the be given in evidence on the "gen
Der issue" 80
,ald The defence rested the case with
lice examination of Lewis and after
and arguments before the Court and TO
(ns iuTy, nv Messrs. Gordon and Baysrd
! In plaintiff, aud Messrs. Higgins and
suf- for defendant, in which many repo
a 10 decisions were referred to. Judge ii
les ton delivered the charge Of the Cou
lion the Jury.
mat This is an action Of assumpsit brol
v to by James Cleaden against James W
1dor founded upon promlssory note mad
rate Lewis Il Son, dated Wilmington, NJ
for 10, 1872, for $500. SS, payable to the 9
this of James Webb, aud by him indors'
end the present holder.
ing, There is but one legal defence, VI
in corrupt and ueurious contract fol-
a il loan Of money, which by the statute
.uffi- cannot be recovered.
Tho The effect of the statute is to avoid