|
|
|
|
|
|
|
HEPBURN'S CASE. 107
fered to exhibit proof of facts; and then to prove in any way, that
the proof so exhibited by himself is false. In this instance, the
petitioner does not merely deduce principles of law from the testi-
mony he exhibits; but the entry of the 12th of January, 1779, is
exhibited as a part of his proof, and proves the simple fact of pay-
ment; and then he produces circumstantial evidence to shew, that
the entry is untrue; that there was no payment at that time; nor
indeed any payment at all; but a mere credit for the proceeds of a
bill of exchange sold in 1776. This latter proof is utterly incom-
patible with the first; the one or the other must be false. The
entry is, however, a material part of the petitioner's own proof;
he cannot, therefore, be allowed thus to impeach and falsify his
own testimony, (a)
But the petitioner blends all the transactions in relation to the
bill of exchange, with the accounts of Samuel C. Hepburn, as
executor, and thus attempts not only to falsify an entry in his
hand-writing, to shew that no such payment, as there stated, was
in fact made; but he also uses the bill of exchange to swell the
debt said to be due from the Mollisons; and so to increase the
demand against the state.
The holders of the bill instituted suit upon it against Thomas
the endorser, and recovered, according to the act for ascertaining
what damages shall be allowed on protested bills of exchange; (6)
over and above the principal, with costs of protest and suit, twenty
per cent, damages. Samuel C. Hepburn being liable, as drawer,
for the whole, he accordingly paid the whole amount. And now
the petitioner contends, that those damages and costs must be con-
sidered as a part of his claim against the Mollisons and the state.
But I know of no rule of law by which the drawee who refuses to
accept a bill, even where he has funds in his hands at the time,
can be charged with the damages and costs of protest. And if
the Mollisons cannot be so charged, then there certainly can be no
claim, on that account, against the state, who stands in the place
of the Mollisons only, even supposing those damages and costs of
protest to have been actually paid out of the estate of the late
John, Hepburn. Upon Samuel C. Hepburn's receiving notice of
the non-acceptance of the bill, his right to sue, which by drawing
it, he might be said to have tacitly consented thus far to suspend,
(a) Fenton v. Hughes, 7 Ves. 290; Purcell v. McNamara, 8 Ves. 327; 1 Brown
Civil Law, 478; Queen v. The State, 5 H. & J, 232.—(b) 1715, ch,7; 1785, ch. 38.
|
|
|
|
|
|
|
|
 |
