therefore void for the want of a stamp. The constant practice of examining accomplices, (said Mr. Justice Lawrence, in delivering his opinion,) and the case of a witness to a forged will who has obtained probate, show, that the mere circumstance of a man's representing himself as having done things inconsistent with common honesty, is not sufficient to reject his testimony, however it may weaken and impeach it. (1) Nor is there any distinction with respect to negotiable securities, where the point to be considered is the competency of the witness; for supposing what he has done in putting such instrument into circulation to be ever so great a fraud and ever so mischievous, he is still a witness unconvicted of any crime, and without interest, and not more devoid of principle than many who have been mentioned as constantly admitted." (2) (k). In an action of assumpsit for goods furnished to a ship, it was proved on the part of the plaintiff, that the defendant's name was in the register as joint owner with another person, on whose oath the register was obtained; and that after the time of furnishing the goods, the defendant executed to him a conveyance of the share, which he appeared from the register to have; the Court of King's Bench held, that this person was a competent witness, on the part of the defendant, to prove that he had inserted the defendant's name without his privity and consent, and that the conveyance was executed in order to divest him of all alleged interest. (3) In this case, it is to be observed, there was not any ground of charging the defendant with the amount of the goods, except in virtue of the supposed interest, which the register represented him to have in the ship; and under such circumstances, it was competent to him to show that the property never belonged to him. (1) 7 T. R. 610. (2) 7 T. R. 611. By this case of Jordaine v. Lashbrooke, the case of Adams v. Lingard, 1 Peake N. P. C. 117, and some other cases of the same kind are overruled. (3) Rands v. Thomas, 5 Maule & Sel. 246. (k) See Note 78, p. 71. CHAPTER V. Of the Incompetency of Witnesses from Interest. THE fourth ground of incompetency is interest. (1) It is a general rule, that all witnesses, interested in the event of General rule. a cause, are to be excluded from giving evidence in favour of that party, to which their interest inclines them. They are excluded from a presumed want of integrity or impartiality; and not, as some have concluded, 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 others are admitted who may be subject to the more powerful influence of relationship, friendship or feeling. "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 prirate benefit, which is near to them, rather than to the good of the world, that is more remote; therefore, from the nature of human passions and actions, there is more reason to distrust such a biassed testimony, than to believe it." In treating of the incompetency of interested witnesses, 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 busband 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; (1) See Note 79, p. 81, Fifthly, of the admissibility of the confession of a prisoner against himself; Sixthly, of the competency of the party injured, as 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. 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. "The old cases on the competency of witnesses," said Lord Mansfield, (1) have gone upon very subtle grounds. But of late years the courts have endeavoured, as far as possible, consistently with those authorities, to let the objection go to the credit rather than to the competency of a witness." At one time it was generally held, that, if a witness had no 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; (2) (m) and the (1) Walton v. Shelley, 1 T. R. 300, (2) 1 T. R. 302. 3 T. R. 36. 7 eited by Lord Kenyon in Bent v. Ba- T. R. 603. ker, 3 T. R. 32. ; and see R. v. Bray, Cas. Temp. Hard. 360. 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. (n) The question then resolves itself into this, Whether the witness proposed to be examined, has an interest in the event of the suit? In considering this subject, the simplest method will be, to ascertain, in the first place, what is not such an interest in the event, as will disqualify a witness from giving evidence: and then to enquire, what is such an interest, as will disqualify him. I. First, what is not such an interest, as will disqualify. It is not an objection to the competency of a witness, that he has Wishes or exwishes or a strong bias on the subject-matter of the suit, or that he pected benefit. expects some benefit from the result of the trial. (o) Such circumstances may influence his mind, and affect his credibility; they are, therefore, always open to observation, and ought to be carefully weighed by the jury; who are to determine what dependence they can have on his testimony; but they will not render him incompetent. (p) same situation er. A witness who stands in the same situation as the party, for Witness in the whom he is called to give evidence, is under a strong bias, and may with the party. have strong wishes upon the subject: but is not on that account disqualified. (q) Thus if there are two actions brought against two Co-tresspasspersons for the same assault, in the action against one the other may be a witness; (1) or if several persons are separately indicted for perjury in swearing to the same fact, either of them before conviction may be a witness on the trial of the others. (2) So, in Wife of conRudd's case, a woman, whose husband had been before convicted, vict. was admitted to give evidence against the prisoner, though she expected, that, in case of his conviction, her husband would receive a pardon. (3) Upon the same principle, in the case of Bent v. Baker, which Underwriter in was an action against an underwriter on a policy of insurance, policy. (1) By Ashurst, J. 1 T. R. 301. 5 Barn. & Cress: 387. (2) Bath v. Montague, cit. Fortesc. Rep. 247. Gunstone V. Downes. 2 Roll. Abr. 685. art. 3; S. C. cited 2 (n) See Note 81, P. 81. (0) See Note 82, p. 84. (p) See Note 83, p. 85. (q) See Note 84, p. 89. Vendur. the Court held, after much argument, that another underwriter was a competent witness. (1) This case came before the Court of King's Bench, by writ of error from the Court of Common Pleas; a writ of error was afterwards brought to reverse the judgment of that court, (2) but was at length abandoned. It has always been considered a case of great authority, and deserves to be particularly noticed, as it is one of the leading cases, which have established the rule of evidence on this subject. The principal question in that case was, whether a person, who had been employed as broker by the plaintiff in procuring the policy to be subscribed by the defendant, and had afterwards himself subscribed the policy as assurer, was a competent witness for the defendant. The Court adjudged that he was competent; Lord Kenyon C. J., Mr. Justice Buller, and Mr. Justice Grose held, that he ought not to have been rejected, on the broad and general ground, because he was not interested in the event; Mr. Justice Ashhurst, on a narrower ground, because the witness stood in the particular situation of broker; and, having made himself a party to the policy, he ought not to be allowed by his own act to deprive either party of the benefit of his testimony. The other judges also concurred in this opinion: but Lord Kenyon C. J. declared, that the reason before mentioned was the principal ground of his judgment. He said, "The objection is, that the witness was underwriter on the some policy. I must acknowledge, that there have been various opinions upon this subject, and that it is impossible to reconcile all the cases. Then we have only to consider, what are the principles and good sense to be extracted from them all. I think the principle is this: if the proceeding in the cause cannot be used for him, he is a competent witness, although he may entertain wishes upon that subject; for that only goes to his credit, and not to his competency." The vendor of an estate, who has sold the inheritance without any covenant for good title or warranty, is competent to prove the title of the vendee. (3) (r) In an action of trover for a horse, a person who accepted the horse from the plaintiff as a security for the payment of a sum of money, and afterwards on default (1) 3 T. R. 27. Bull. N. P. 293, S. P. (2) 7 T. R. 604. (3) Busby v. Greenslate, 1 Str. 445. |