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Decisions of the Superior Courts of New South Wales, 1788-1899

Payne v Smithers [1825] NSWKR 5; [1825] NSWSupC 50

evidence - competence of witness - bill of exchange - appeal - new trial

Supreme Court of New South Wales

Trial: 17 October 1825

Source: Sydney Gazette, 20 October 1825


This was an application, on behalf of the plaintiff, for a new trial, on the ground of the incompetency of a witness, who, it was contended, had an interest in the event of the action, and upon which a Rule Nisi had been granted.

Mr. Norton, for the plaintiff, stated, that in this case Matthew Bacon drew a bill for £500 on the defendant, Thomas Smithers, and afterwards endorsed and delivered to the plaintiff, Payne.  When the note became due, the defendant resisted the payment, and on the trial of the action, which was brought in consequence, he produced Bacon, the drawer, to prove that the plaintiff gave no consideration for it, and a verdict was found for the defendant, a point having been saved as to the admissibility of Bacon's evidence.  Now he (Mr. Norton) contended that Bacon's evidence could not be received, as he must have been interested in the result, inasmuch as the nature of his evidence went to exonerate himself from any liability to Smithers; for, if the plaintiff had obtained a judgment against the acceptor, then the acceptor would have had a claim against Bacon, and could have sued him for money paid for his use, and it was his interest therefore to prevent a recovery.  Upon these grounds, supported by the authority of various cases, he contended that a party standing in such a situation, with respect to the issue, could not be a competent witness.

Counsel for the defendant contended, that the only question for the consideration of the Court, was, did Bacon stand indifferent between the parties?  And, to save the time of the Court, he would admit, that he did not with regard to cost.  If Payne had given any consideration for the note, could he not have sued the drawer?  And, therefore, it was immaterial whether Bacon exonerated the defendant or not.  There were cases much stronger, and directly in the teeth of those quoted by Mr. Norton; and it was clearly laid down by Lord Ellenborough, whom he would contend was a greater authority than Sir James Mansfield, that liability to costs did not destroy the competency of a witness.  The same doctrine was also held in the cases of Burke, and others, against Kirshaw, and Ildenton, and Atkins, in 2d. East, 457, upon the strength of which authorities he contended, that the evidence of Bacon, in this case, was admissible. --- Judgment deferred.



Forbes C.J. and Stephen J., 20 October 1825

Source: Sydney Gazette, 24 October 1825


This morning His Honor the Chief Justice delivered the opinion of the Court on this matter, which was an application for a new trial, on the ground of an incompetent witness.

``This was an action brought by the holder of a bill of exchange for £500, drawn by Matthew Bacon, and accepted by the defendant Smithers.  At the trial, Bacon was called upon as a witness, to prove want of consideration, upon which the holder obtained the bill.  His testimony was objected to by Counsel for the plaintiff, some discussion took place, and the result was, that he appeared to me to be an indifferent witness, at the same time I suggested that it was open to the plaintiff to move for a new trial.  Bacon's testimony was most material; so material, that it was in fact the cardinal hinge on which the verdict turned.  I am now, however, called upon to give an opinion as to the admissibility of this man's evidence, and I am free to confess, that it is a point of extreme difficulty, and which will be allowed, when I state, that the Courts of King's Bench, and Common Pleas, in England, have held precisely opposite opinions on this subject.  In a case before the King's Bench, in 1802, it was adjudged that the drawer of a bill might be admitted as an evidence, to prove that the holder gave no consideration; a case similar came before the Common Pleas, in 1812, when Sir James Mansfield expressed his opinion quite the reverse, and decided that a party so situated was not an indifferent witness, and therefore this court may well be at a loss, and feel some delicacy in deciding a point when such high authorities differed.  The principle, however, appears to me to be a plain one, that a witness, who is interested in the event of a suit, cannot be examined on the trial, and the whole question therefore is, was this witness indifferent, or was he not?  If the drawer of a bill, examined as a witness, defeats the action against the acceptor, he is liable to the holder in the amount of the bill; if, however, the verdict should be for the holder, he is then liable to the acceptor in the principal and costs; it is, therefore, his pecuniary interest to defeat the action against the acceptor, as he would not only be liable to him for the amount of the bill, but for the costs, in consequence of his acceptance, and on the contrary, to the holder he is liable only for the principal; he could not therefore be an indifferent witness.  Still I cannot find the broad principle in the books, that the drawer is bound to indemnify the acceptor for all the consequences of his acceptance, nor do I think the principle a sound one.  If, when a bill is presented, the acceptor refuses to honour it, and drives the holder to an action, by which expense is wantonly entered up on it, he cannot turn round upon the drawer and make him responsible for all this, where in the first instance if he had paid the bill he had his action for money paid.  The drawer is liable for all the fair consequences and nothing more, except where he was under a special agreement, to provide funds which he neglected to do, but the acceptor has no right to look to the drawer of the bill for expense, perhaps wantonly incurred, and in defiance may be, of express agreement.  I think the principle to be that a witness must be indifferent, and whether the drawer of a bill of exchange is indifferent, must depend upon circumstances; but where in one case, he is likely to be saddled with costs, and in the other not, he is certainly not indifferent.  I think the case of Bacon falls within this rule; if he had been sued by the holder of the bill, he would be liable only to the amount of the bill; if Smithers had failed, he certainly would have been liable for all the consequences arising from a breach of his engagement, not to put the bill into circulation.  It does appear then, that he was not an indifferent witness, and therefore there must be a new trial.

Published by the Division of Law, Macquarie University