ant. Cuthbert v. Gostling, 3 Campb. writer on a policy on goods, the captain 515. Ellenborough, C. J. 1814. is not a competent witness to prove that 162. In an action by the owner of a he has not been guilty of a deviation; waggon against the proprietors of a coach for though a verdict obtained by the for the negligent driving of the coach- defendant would not be evidence of the man, whereby plaintiff's fore-horse was fact of deviation in an action against the killed, the waggoner is a competent witness, it would shew that certain exwitness for his master without a release. penses had been incurred in the proseMorish v. Foote, Abbott, J. Devon cution of an action which had failed Spring Assizes, 1818. through his misconduct. Taylor v. M'Viccar, 6 Esp. 27. Mansfield, C. J.

1806.

171. In an action against the owner for moneys advanced for the use of the

C. (m) Ship owners and masters. (And see post, pl. 211.) 163. Semble, that in an action for ship, the captain is a competent witness sinking a barge laden with plaintiff's to prove that the moneys advanced to corn, the owner of the damaged barge him have been so applied. Rocher v. is a good witness for the plaintiff upon Busher, 1 Stark. 27. Ellenborough, being released, notwithstanding the in- C. J. 1815. jury sustained by himself. Spitty v. Bowens, Peake, 53. Kenyon, C. J. 1791.

And see Evans v. Williams, 7 T. R. 481, n. coram Lord Kenyon, at Guildhall, 1788, in which case it was ruled 164. In an action upon a policy on that the captain was a competent witgoods, the owner cannot prove the ves-ness, not on the ground of necessity, sel seaworthy without a release from but as standing indifferent between the the plaintiff. Rotheroe and others v. parties; ante, pl. 162, 168. Elton, Peake, 84. Kenyon, C. J. 1791. 165. S. P. ruled in Fox v. Lushington, Peake, 85, n. Kenyon, C. J. 1791. Acc. Martyn v. Hendrickson, 1 Salk. 287. S. C. 2 Lord Raym. 1007. S. C. Holt, 756.

172. A. whose name has been registered as a part owner, on the oath of B., afterwards conveys to B., covenanting for the goodness of his title. He cannot call B. to prove that he had no interest in the vessel, although the con166. In an action by shipper of cornveyance was, in fact, made for the puragainst owner of vessel for negligence, pose of correcting B.'s mistake. Nickthe plaintiff may release the captain son v. Thomas, Ĭ Stark. 85. Ellenboand examine him as to the occasion of rough, C. J. 1815. the loss. Lay v. Holock, Peake, 101. Kenyon, C. J. 1790.

C. (n) Trustees.

167. S. P. Spitty v. Bowens, ubi supra. (And see ante, TRUSTEES.) 168. In an action on a policy for a 174. Trustees of an incorporated publoss by barratry, the captain is not a lic charity are good witnesses in an accompetent witness to prove the consent tion brought against themselves in their of the owners to the supposed act of corporate capacity. Weller v. The barratry, without a release from the un-Governors of the Foundling Hospital, derwriter. Bird v. Thompson, 1 Esp. Peake, 153. Kenyon, C. J. 1792. 339. Kenyon, C. J. 1795. And see Rex v. St. Mary Magdalen, Bermondsey, 3 East, 7, 12, 13.

And see Evans v. Williams, 7 T. R. 481, n. post, pl. 171.

And for a definition of barratry, see Nutt v. Bourdieu, 1 T. R. 323.

169. In an action by two part owners for an injury done to a ship, the master is a competent witness if released by one of the plaintiff's only. Hockless et alt. v. Mitchell, 4 Esp. 86. Kenyon, C. J. 1802.

175. A trustee in whom a power is vested to nominate an endowed school, is a good witness in support of his own nominee. Withnell, clerk, v. Gartham, clerk, 1 Esp. 322. Kenyon, C. J. 1795. S. C. not S. P. 6 T. R. 388.

176. Where defendant in replevin makes cognizance under the party beneficially interested, and also under the 170. In an action against an under-person who has the legal estate, the

183. A defendant who has not paid debt and costs, though his bail are fixed, is not competent to prove perjury committed at the trial. The King v. Eden, 1 Esp. 97. Kenyon, C. J. 1794.

184. In a qui tam action for usury, the borrower is a competent witness to prove the whole case, whether the loan be repaid or not. Smith, qui tam, v. Prager, 2 Esp. 486. Kenyon, C. J. 1796.

And the court of K. B. discharged a rule for a new trial. Ibid. and 7 T. R. 60.

185. A person who has undertaken to indemnify the plaintiff's attorney, cannot be examined for the plaintiff without a release from the attorney. York v. Gribble, 1 Esp. 319. Kenyon, C. J. 1795.

186. But he requires no release from the defendant. Ibid.

179. It has since however been held, on the authority of Rex v. Bostock, 4 East, 572, (S. C. 1 Smith, 202,) that 187. The plaintiff in a foreign atwhere A. is convicted under a statute tachment cannot be called to support upon the evidence of B. the conviction the proceedings in that suit, in a subseis not evidence to support a justification quent action brought by the defendant pleaded by B. to an action of trespass, in the attachment against the garnishee. though B.'s name do not appear on the Lord Barrymore, administrator, v. Tayface of the proceedings. Smith v. Rum-lor, 1 Esp. 327. Kenyon, C. J. 1795. mens, 1 Campb. 9. Ellenborough, C. 188. A witness will not be rejected

Sed vide Regina v. Muscot, 10 Mod.

misrepresenting the solvency of J. H., Jof a witness may be raised in any stage J. H. is a competent witness for the of the trial. Stone v. Blackburne, 1 plaintiff, as he cannot avail himself of a Esp. 37. Kenyon, C. J. 1793. recovery in this action, when sued for the price of the goods. Richardson and another v. Smith, 1 Campb. 277. El- 200. Where the incompetency of the lenborough, C. J. 1808. witness appears on the face of his anSed vide Bird v. Randall, 3 Burr.swer to interrogatories, the objection is 1345. S. C. 1 Bla. 373.

193.

waived by putting cross interrogatories, and cannot be insisted on at the trial. Ogle v. Paleski, Holt, 485. Gibbs, C. J. 1816.

193. In an action for goods sold to the defendant and by his order delivered to a third person for her own use, the latter is not a competent witness to 201. A witness who, from the stateprove the contract without a release ment of his partner, made under no from the plaintiff. Wright v. Wardle, circumstance of suspicion, believes that esq. M. P. 2 Campb. 201. Ellenbo- he is a creditor of a bankrupt, cannot rough, C. J. 1809. be called by the assignees. Atkins and 194. And semble, that if she be a others v. Seward and others. Holroyd, married woman, though living in adul-J. Winchester Spring Assizes, 1819. tery apart from her husband, a release, must be executed to him also. Ibid. 195. A person who has bought goods in his own name is not a competent 202. Where an objection to the comwitness to prove that he purchased them petency of a witness arises out of his as agent for the defendant. M'Brain examination on the voir dire, he may be v. Fortune and another, 3 Campb. 317. asked any question to shew that his inEllenborough, C. J. 1812.

C. (q) Objection, how repelled.

terest has ceased, though the proceedre-ings by which it was determined, could, under other circumstances, have been proved only by written evidence. chers' Company v. Jones, 1 Esp. 160. Kenyon, C. J. 1794.

N. It does not appear that any lease was offered; see the last case. 196. A carrier who is employed by A. to convey a sum of money to B. and pays it by mistake to C. is a good witness from necessity, to prove the payment to C. in an action brought against him by A. for the amount without a release. Barker v. Macrae, 3 Campb. 144.

But

And see Regina v. Muscot, 10 Mod. 193. Turner v. Pearte, 1 T. R. 717.

203. Thus where in an action by a corporation, the witness admits that he Ellenborough, C. J. 1811. was once a member, he may state that 197. If the sheriff's officer who he is now disfranchised, without promakes an arrest, attest the execution of ducing the corporation books. Butchers' the bail bond at the request of the per- Company v. Jones, ubi supra.

C. J. 1812.

son arrested, the latter is precluded from 204. So where in an action by asobjecting to the examination of the offi-signees, the witness acknowledges that cer, in an action on the bail bond, though he was a creditor of the bankrupt, it is he is substantially a party to the suit. sufficient for him to allege, that he has Honeywood, bart. sheriff of Kent, v. since become a bankrupt himself, and Peacock, 3 Campb. 196. Ellenborough, obtained his certificate, without producing such certificate. Botham v. 198. A clerk to commissioners of Swingler, 1 Esp. 164; differently retaxes, is bound, when subpoenaed, to ported, Peake, 218. Kenyon, Č. J. produce his books, and answer all ques- 1794. tions relevant to the issue, notwithstanding his oath of office. Lee, qui tam, v. Birrell, 3 Campb. 337. Ellenborough, C. J. 1813.

C. (p) Objection, when taken. 199. An objection to the competency

205. But this privilege extends only to a regular examination on the voir dire before any examination in chief. Therefore a witness cannot, upon his cross examination, be interrogated as to the contents of written instruments, for the purpose of raising an objection to his

competency. Howell v. Lock, 2 Campb. Jchargeable with the defendant's costs. 14. Ellenborough, C. J. 1809.

C. (r) Competency, how restored.

Ibid.

D. PERSONAL defect.

(And see post, E. (c). As to alien enemies, see Falcon, Atkins, 6 Rob. A. R. 197.)

D. (a) Crime.

206. In an action against the owner of a vessel for a loss occasioned by the negligence of the pilot, the latter is a good witness for the defendant, upon 214. The record of a conviction being released by him, without a release from the captain. Aldrich v. Simmons, without a caption, cannot be read to 1 Stark. 214; 4 Campb. 392. Gibbs, incapacitate a witness. Cooke v. Maxwell, 2 Stark. 183. Bayley, J. 1817. C. J. 1816.

And see ante, SHIP, G.

207. A general release discharges,the party from all liability in respect of past transactions, although no cause of action have accrued. Scott and others v. Lifford, 1 Campb. 249. Ellenborough, C. J. 1808.

S. C. not S. P. 9 East, 347.

208. In an action by tenants in common, a release, executed by only one of the plaintiffs, is sufficient. Hockless et alt. v. Mitchell, 4 Esp. 86. Kenyon,

C. J. 1802.

209. To restore the competency of an interested witness, it is necessary either to produce a release or to shew that it has been lost. Corking v. Jarrard, 1 Campb. 37. Ellenborough, C. J. 1807. 210. A guardian ad litem, possesses, as such, no authority to release a witness. Fraser v. Marsh, 2 Stark. 41. Ellenborough, C. J. 1817.

And see ante, EVIDENCE, pl. 290. 211. Semble, that in an action for running down a ship, the captain may be rendered a competent witness by a release to himself and the rest of the crew, with a single stamp. Perry v. Bouchier, 4 Campb. 80. Ellenborough,

C. J. 1818.

E. EXAMINATION OF WITNESSES.

E. (a) Oath, how administered.
(2 Anst. 279.)

215. A jew, who has never formally. renounced the religion of his ancestors, but considers himself a member of the established church, may be sworn on the gospels. Rex v. Gilham, 1 Esp. 285. Kenyon, C. J. 1795.

216. A member of a religious community which objects to the ceremony of kissing the book, may be examined Mee v. Reid, Peake, 23. without it.

Kenyon, C. J. 1790.

S. P. Dutton v. Colt, 2 Siderf. 6.
Mildrone's case, Leach, C. C. 459.
Acc. Omychund v. Barker, 1 Atk.
21, 42.

E. (b) Declarations in articulo mortis.

217. It is exclusively a question for the court whether a declaration made in articulo mortis, be under the circumstances admissible evidence. Per 12

Rex v.

judges, on a question referred to them by the judges in Ireland. N. Especially when the captain's Hucks, 1 Stark. 523. name stands first, and the release is first tendered to him. Ibid.

212. In an action by an executor, the residuary legatee is not rendered a competent witness for the plaintiff by releasing all claim to the debt, since the costs would be a charge on the estate. Baker, widow, executrix, &c. v. Tyrwhitt, 4 Campb. 27. rough, C. J. 1814.

E. (c) Questions affecting the witness personally.

(And see ante, C. (b) 78, 79, 80; AcTION ON THE CASE, A. (c) pl. 24, 25.)

218. A witness should not be asked Ellenbo-whether he believes in Jesus Christ or in the Gospels, but whether he believes 213. The witness must release the in God, in the obligation of an oath, The King v. residue altogether, or the attorney must and in a future state. release his costs, the estate not being Taylor, Peake, 11. Buller, J. 1790.

219. Semble, that a witness is bound tracted by the commissioners, however to answer questions which may subject irrelevant to the bankruptcy, may be him to a civil responsibility. Doxon v. used against the examinant. Stockfleth Haigh et alt. 1 Esp. 409. Kenyon, C. v. De Tastet and others, 4 Campb. 10. J. 1795. Ellenborough, C. J. 1814.

S. P. declared to be law by 46 Geo. III. cap. 37. s. 1.

And see 13 & 14 Car. II. cap. 18. sect. 11; Regina v. Newell, Parker, 270. 220. A letter written by a witness, contradictory to his present testimony, may be read for the purpose of impeaching his credit. De Sailly v. Morgan, 2 Esp. 691. Kenyon, C. J. 1798.

And see ante, INSURANCE, pl. 231. 221. It is no ground for rejecting a witness, that upon his cross-examination a question may be put which may affect him criminally. Barber v. Gingell, 3 Esp. 60. Kenyon, C. J. 1799.

But see Cates v. Hardacre, 3 Taunt. 424.

222. A witness who answers questions tending to criminate himself on his examination in chief, is bound to answer on the cross examination, though his answer may implicate him in a transac tion affecting his life. Per Dampier, J. Winchester Summer Assizes, 1815.

223. Held, that a witness cannot be interrogated as to his having been in a house of correction. Rex v. Lewis and others, 4 Esp. 225. Ellenborough, C.

J. 1802.

224. If, however, upon such a question being put, he admits the fact, the prosecution may call evidence of his subsequent good conduct. Rex v. Clarke, 2 Stark. 241. Holroyd, J.

1817.

225. And semble, that a witness should not be asked questions which tend directly to disgrace him. Macbride v. Macbride, 4 Esp. 242. Alvanley, C. J. 1802.

229. But semble, that the chancellor would order such examination to be taken off the file. Ibid.

230. It being a misdemeanour to copy an extrajudicial affidavit which contains libellous matter, even for the purpose of presenting it to the magistrate to be sworn, a person who has made such a copy cannot be compelled to disclose the contents of such affidavit. Maloney v. Bartley, 3 Campb. 210. Wood, B. Gloucester, 1812.

E. (d) Repudiation of evidence.

231. If a witness upon his examination in chief give evidence against the plaintiff, by whom he is called, his testimony may be entirely repudiated by calling witnesses to contradict him. Alexander v. Gibson, 2 Campb. 556. Ellenborough, C. J. 1811.

But see Adams v. Arnold, 12 Mod. 375; 1 Nolan, 442.

232. But a party is not at liberty to set up so much of his witnesses' testimony as makes for him, rejecting and disproving such part as makes against him. Ibid.

Secus, as to witness produced by the adverse party. Bermon v. Woodbridge, Dougl. 788.

And see LIMITATION OF ACTIONS, A. (c) pl. 33.

E. (e) Cross examination.

(And see ante, pl. 221, 2.)

233. Witnesses cannot be cross examined to rebut an assertion made by 226. In an action for seduction, the counsel, which they have not attempted servant cannot be asked if she previously to prove. Lucas v. Novosilieski, 1 Esp. had intercourse with other men. Dodd 296, 8. Eyre, C. J. 1795. v. Norris, 3 Campb. 519. Ellenbo- 234. A witness may be cross exarough, C. J. 1814. mined, though the party calling him 227. Answers given to questions to may not have chosen to examine him which the witness or examinant might in chief. Phillips v. Eamer et alt. have demurred, may be employed against sheriffs of London, 1 Esp. 357. Kenhim. Smith and others, assignees of yon, C. J. 1795. Parquet, v. Beadnell, 1 Campb. 30. Ellenborough, C. J. 1807.

228. So any acknowledgment ex

And see Valliant v. Dodomead, 2 Atk. 524.

235. A witness cannot be cross exa