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wards by giving evidence to invalidate it." This appears to have been the first case in support of such a rule. In the latter case of Jordaine v Lashbrooke,(1) this subject was very fully discussed; and the Court there determined, that in an action on a bill of exchange against the acceptor, the payee (who was also indorser) was a competent witness for the defendant to prove, that the bill, which was unstamped, and purported to be drawn at Hamburgh, was in fact drawn in London, and therefore void, for the want of a stamp.(a) · "I find no rule," said Mr. Justice Lawrence in delivering his opinion, "less comprehensive than this, that all persons are admissible witnesses, who have the use of their reason and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and are not influenced by interest. Under none of these classes does the witness in this case fall. Whether a defendant shall be allowed to set up such a defence, is quite another consideration, *than whether the witness be competent. It certainly is of consequence to prevent men from hanging out false colours; but this must be applied to the parties in the cause, or you may preju dice men who have not hung out such colours." (c)

(1) 7 T. R. 601. Ashhurst J. contra. Ves. & Beam. 208. See Jones v Brooke, 4 Taunt. 464. I

(a) In Adams v. Lingard et al. Peake 117, the question in which was exactly the same as in the subsequent case of Jordaine v. Lashbrooke, Lord Kenyon was of opinion, that the indorser was a competent witness to prove that a bill deted at Madeira, was in fact drawn in London. Et vide Buckland v. Tankard, 5 Term Rep. 579, per Lord Kenyon. Rich 7. Topping, 1 Esp. 176. S. C. Peake's case 224, per Lord Kenyon, who denies the authority of Walton v Skelly: but he is opposed by Buller, J. in Hart v M'Intosh, 1 Esp. 298, Bent v Baker, 3 Term. Rep. 36. Phelheon y Whitmore, Peake 40, and Adums v Lingard et al. Peake 118. In 1 Esp. 177. Lord Kenyon denies that he ever used the words imputed to him in 3 Term Rep. 34. viz. that where a person has signed a negotiable instrument, ke shall not be permitted to invalidate it by his testimony. In Jones v Brook, 4 Taunt. 464, the Court of C. B. expressly recognize the admissibility of a party to a negotiable instrument to impeach it.

(b) The rule adopted by the courts of New-York, Pennsylvania, and Massachu. setts is, that a party to a negotiable instrument is incompetent to prove it to have

CHAP. V.

Of the Incompetency of Witnesses from Interest.

THE fourth ground of incompetency is on account of interest. It is a general rule, that all witnesses, interested in the event of the cause, are to be excluded from giving evidence in favour of that party, to which their

originally, been void. Winton v Saidler, 3 Johns. Cas. 189. Coleman v Wise &
others, 2 Johns. Rep. 165. Stille v Lynch, 2 Dall. 194. Respublicai v Ross, Ib.
239. Warren v Merry, 3 Mass. Rep. 27. Parker v Lovejoy, Ib. 565. Churchill
v Suler, 4 Mass. Rep. 156. Putnam v Churchill, Ib. 516. Widgery v Munroe &
another, 6 Mass. Rep. 449. Jones v Coolidge, 7 Muss. Rep. 199. Butler v Da-
men, 15 Mass. Rep. 223. This question has been discussed in the Supreme Court
of the United States, but no opinion given on the point, further than a die-
tum of Clease, J.:-" Upon the statute of gaming, usury, and the like, but in no
ether case, are the drawers, indorsers, &c. competent witnesses. The cases all
show it." Wilson v Lenox 1 Cranch 201, Vide post 41 n. (a). I cannot find
that there has been any decision on the subject in Virginia. In Baring v Reeder,
Hen. & Mun. 154. one of the judges expresses his opinion strongly in favour of
the doctrine, in Walton v Shelley, while another hints a preference to that of
Jordaine v Lashbrooke. In Connecticut the law is still unsettled. Swift's Ev.
96. et seq. Et vide Allen v Holkins, 1 Day 17. Webb Danforth Ib. 301.
The rule in Walton v Shelley, was, in England, soon after the decisi on in that
case, limited to negotiable instruments. Bent v Baker, 3 Term Rep 32, and 36.
and excepting the case cited, n (a) the courts in this country, have resisted every
attempt to extend it to instruments not negotiable. Steinback v Rhinelander, 3
Johns. Cas. 269 Pleasant v Pemberton, 2 Dall. 196. Baring v Shippen, 2 Binney
154. Brown v Babcock, 3 Mass. Rep. 29. Storer v Logan & others, 9 Mass. Rep. 55.
ante 31 n. (a) The Inhabitants of Worcester v Eaton, 11 Mass. Rep. 368. And
a party to a negotiable instrument may testify to subsequent facts which do not
prove it to have been originally void, as payment:-Carrington v Miller, Peake
6. Humphrey v Moxon, Ib. 52. Warren v Merry, 3 Mass. Rep. 27. White v
Kibbing, 11 Johns. Rep, 128-that the note was indorsed after it became due.
Baker & Rowlson v Arnold, 1 Caines' Rep. 258-that the date had been altered.
Levy Essex, Chitty on Bills 284. Parker v Hanson, 7 Muss. Rep. 470. That
the holder and indorsee of the bill had received it from the indorser, the witness
(who had secured himself from liability by a special indorsement,) in trust for
the payees, and as their agent to collect, so as to let in the defence, that the
drawer had been requested by the payees not to pay it to the indorsee, and there-
by to defeat his action. Barker v Prentiss. 6 Mass. Rep. 430. Or, that an ac-
commodation note which had been delivered to a third person to get discounted,
was converted by him to his own use." Woodhull v Holmes, 10 Johns, Rep. 231.

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interest inclines them. They are excluded from a supposed want of integrity; and not, as some have supposed, that they may be saved from the temptation to commit perjury. If that were the true principle, there would be some inconsistency in excluding witnesses, who have an interest even to the smallest amount, at the same time that a son is allowed to give evidence for the father, and a witness is not privileged from answering, when called to speak against his interest. The temptation to perjury may be much stronger in these two last cases, than in the former; yet in the one, the witness will be permitted, in the other, compelled to give evidence. "Where a man," says Chief Baron Gilbert, "who is interested in the matter in question, comes to prove it, it is rather a ground for distrust than any just cause of belief; for men are generally so short-sighted, as to look at their own private benefit which is near to them, rather than to the good of the world, that is more remote; therefore,

But it has been held in an action between the indorsee and maker of a promissory note, that the indorser was not a competent witness to prove usury in the transfer. Minning v Wheatland, 10 Mass. Rep. 502. The subsequent decisions in the state of New-York, upon the propriety of admitting parties to negotiable instruments as witnesses, go so far as to establish, that a party to a negotiable instrument, is a competent witness in a suit on the note, to prove any fact which has arisen subsequent to his becoming a party to such note, if he stands disinterested between the parties to the suit. Vide Skelding and Haight v Warren, 15 Johns Rep. 270. J. & T. Powell v Waters, 17 Johns Rep. 176. Hubby v Brown and Nickols, 16 Johns Rep, 70. In the case of Powell v Waters, Ch J. Spencer says, that the rule laid down by Justice Thompson in the case of Winton v saidler, that a party to a note should not be permitted to invalidate it, is to be understood to the extent, only that a person whose name appeared on negotiable paper, and had thereby contributed to its circulation, should not be admitted to say that the paper thus sanctioned by his name, was tainted when it passed from his hands. But if it receives its taint when it is negotiated to the party plaintiff, by the facts then happening, it is not contrary to public policy or morality, nor would it come within the principle of the decision in Winton v Saidier, to hear the witness to such facts; yet the party to a negotiable instrument cannot be admitted as a witness to shew it void, for usury or for any other cause, at the time of its execution, even although the fact of usury was known to the plaintiff at the time he took the note. Skelding & Haight, v Warren, cited above. And Mann v Swann 14, Johns Rep. 270. In Connecticut it is held, that a party to a negotiable instrument, who is divested of his interest, is a competent witness to prove it usurious in its creation. Townsend v Bush. 1 Con. Rep. 260.

from the nature of human passions and actions, there is
more reason to distrust such a biassed testimony, than
to believe it." Perhaps it may appear rather doubtful,
whether such an exclusive rule has answered the pur-
poses for which it was intended, and whether upon the
whole *it may not have contributed to obstruct, rather
than to promote, the ends of public justice. It is cer
tain, that courts of justice now generally adopt the prin
ciple, that it is wiser to hear the witness, than at once
reject him unheard and untried; and they endeavour
as far as possible, consistently with former decisions, to
receive the testimony of witnesses, leaving it afterwards
to the jury to consider, how far it has been supported by
other evidence, or from its own character may be enti-
tled to credit. The legislature also shows, that it acts
upon the same principle, by having provided in many
instances for the admissibility of witnesses, when they
aust otherwise have been rejected as incompetent..

In treating of the incompetency of interested witness-
es, it is proposed to consider the subject in the following
order :-

First, with respect to the nature of the interest, which will disqualify ;

Secondly, of the rule on the subject of interest, considered with reference to the parties in the suit;

Thirdly, of the same rule considered with reference to the husband or wife of the party;

Fourthly, of the effect of admissions by a party to the suit or by his agent, against the party's interest;

Fifthly, of the admissibility of the confession of a pris oner against himself;

35

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Sixthly, of the competency of the party injured, as the witness in criminal prosecutions;

Seventhly, of certain exceptions to the general rule on the subject of interest; and

*Lastly, of the means by which the competency of an interested witness may be restored.

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SECT. I.

Of the Nature of the Interest which disqualifies a Witness.

IT is scarcely possible to reconcile the earlier cases on this subject with those of a more recent date. The old cases respecting the incompetency of witnesses, were generally decided on very narrow grounds. Evidence, which ought to have been admitted, although received with caution, was at once excluded without being heard";" as if juries were not to be trusted with all the means of deciding right, because it was possible their decision might be wrong. At one time it was generally held, that, if a witness had an interest in the question put to him, he was incompetent. Thus it has been laid down in some of the earlier cases, as a general rule, that one commoner cannot be a witness for another commoner; and that in an action on a policy of insurance, one underwriter cannot be a witness for another. But a distinction has since been made between an interest in the question put to a witness, and an interest in the event of the suit(1); and the general rule now established is, that a witness will not be disqualified on the ground of interest, unless he is interested in the event of the suit. (a) The

(1) 1 T. R. 302. 3 T. R. 36. 7 T. R. 603.

(a) The rule in the text has been frequently recognized in this country. The Supreme Court of the state of New-York sum up the law on this subject in 15e