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So fin a trial for forgery, a release from the holder of a promissory note to the supposed drawer, in whose name it was forged, (there being no other name on the note to whom the drawer could be liable,) made him a competent witness to prove the forgery of his hand-writing (1). To restore the competency of a bankrupt, (who, from being interested to increase the fund, cannot be admitted to prove property in himself or a debt due to his estate) (2), it must be shewn, that he has obtained his certificate and given to the assignees a release of his share in the surplus and in the dividends (3). If he gives a general release to his assignees, it is sufficient; as it discharges him from receiving any sum of money from the assignees (4). But no release can make the bankrupt a witness to prove his own act of bankruptcy (5). And, after a second bankruptcy, he cannot be a witness to increase the fund, even with a certificate and release, unless he has paid fifteen shillings in the pound; for, in the event of his not making that payment under the second commission, his future effects are liable. (6)
When a witness is objected to as the member of a corporation, whose interests are in question, his competency may be restored either by his resignation, (which will be effectual even by parol, provided that it has been accepted, and another person elected in his place) (7), or by disfranchisement.
(1) Akehurst's case, I Leach Cr. (6) By st. 5 G. 1. c.30. «. 9. KenC. 178. Dr. Dodd'i case, ib. 184. net v. Greenwollers, Peake, N.P.C.
(a) See ante, p.5 1. 3.
(3) Ewens r. Gold, Bull. N. P. 43. (7) R. v. Mayor, &c. of Rippon, 1
(4) Nares v. Saxby, cited 1T.R. Salk, 431. Com. Dig. tit. Franchise. 497. (F. 30 }r
(5) Field v. CuKis, a Str. 819. See ante, p. 51.
Dowsing (a Str. 1153.), and Ld.Camden C.J. in Doc on the demise of Hindson v. Kersey were of opinion, that if a subscribing witness was interested at tie time of attiitatiam, nothing ex put facto could give effect to his attestation. In the former of these cases, Mr. Justice Drnnison differed from Lee C. J. on this point. (See 1 Burr.417» 8.)
The method of disfranchisement is said to be by an, information in the nature of a quo warranto against the member, who then confesses the information, and upon that there is judgment of disfranchisement (1). This judgment must be such as cannot be avoided: for if it appears that the witness can avoid the judgment for h-regularity, (as when he had never been summoned, and knew nothing of his disfranchisement,) he is not competent. (2)
A release is in some cases unnecessary. And the witness though interested will be admitted without a release.
1. As, first, where the witness offers to surrender or release his interest, and does all in his power to clear away every objection to his testimony, but the other party refuses to accept it, in that case the evidence of the witness may be received (3). Or if the party, on whose side the witness is interested, makes an offer to remove all interest, and the witness refuses, that will not deprive the party of his testimony. In the case of Anstey v. Dowsing (4), indeed, Lee J. expressed an opinion that a legatee was not competent to prove the due execution of the will, although payment of the legacy was tendered to him, which tender he refused. But the ground of this opinion was, that, even if he had accepted the legacy, he still would have been incompetent, as having been interested at the time of attestation; a point, on which there has been some difference of opinion, but the greatest authorities arc in support of the contrary proposition, namely, that the payment of the legacy would restore the competency of the witness.
2. It was ruled by Lord Holt in the case of Barlow v. Vowel (5), that if a man be a witness of a wager and afterwards bet himself, this shall not be a reason to except
(1) The case of the Mayor.&c. of (3) Gocdtitie dem. Fowler v. Wclfotd, Colchester, t P. Wms. 595.,n. I Doug. 139. 3 T. R.35.
(2) Brawn v. Corp. of London, 11 (4) 2 Str. 1253. See antt p. 27. Mod. 115. (5) Skin. 586. See Rescous v. Williams, 3 Lev. 151; and Cowp. 736.
H 2 against against his being, sworn to prove the wager. And from analogy to this case, Lord Kenyon and Mr. Justice Ashurst were of opinion in the case of Bent v. Baker (1), (where, in an action on a policy of insurance, the broker was called as witness for the defendant, but rejected, because he had underwritten the policy after the defendant,) that, even if it were true in general, that one underwriter could not be a witness for another, yet the witness ought to have been admitted here, as the defendant had acquired an interest in his testimony, before the witness had signed the policy. And they laid down as a general principle, deducibl® from the case of Barlow v. Vowel, that where a person makes himself a party in interest after a plaintiff or defendant has an interest in his testimony, he may not by this deprive the plaintiff or defendant of his testimony. However it appears to be rather doubtful whether this proposition is not expressed in too large and general terms. Whether a witness is incompetent on account of interest must depend rather on the nature of the interest than upon the time of acquiring it. The question on the voire dire is, whether he is interested at the time of' his examination. If he is directly interested at that time, he is not a competent witness in general without a release, and it seems to be no answer to the objection, to shew that he has become interested only since the commencement of the action, or since the time of his being acquainted with the fact, which he is called to prove. If, for example, the question is on a customary right of common, a witness will be incompetent, who admits upon the voire dire that he is in the occupation of a messuage, and that he claims a similar right of common as annexed to his tenement: and it cannot be material whether he has been in possession for a number of years, or had the tenement only just before the trial of the cause. In either case he appears to be equally incompetent; yet in the latter it may be said, that he acquired his interest, after the party had become interested in his testi
mony. So in the late case of Forester v. Pigou (i), where the defendant in an action on a policy of insurance called another underwriter to prove the policy "void on account of a misrepresentation of the nature of the risk, and upon the voire dire the witness stated, "that he had paid th loss to the plaintiff upon an understanding that he was to be repaid in the event of this action failing, and that he had since received a letter from the plaintiff promising to return the money in that event," an objection being taken to his competency, the point was argued on the other side upon the authority of Barlow v. Vowel, but the witness was considered to be incompetent and rejected; for although the witness would not be disqualified by any agreement fraudulently entered into between him and the plaintiff for the purpose of taking off his testimony, yet on the ether hand the pendency of a suit could not prevent third persons from transacting business bond Jide with one of the parties; and if an interest in the event of the suit is thereby acquired, the general consequence of law must follow, that the person so interested cannot be examined as a witness for that party, from whose success he will necessarily derive an advantage. A motion was afterwards made for a new trial on account of the rejection of this witness, as well as of another also, who was similarly situated; and a new trial was granted for the purpose of ascertaining more particularly the precise time, when the undertaking was made to the witnesses; but the court added, that if a person, who is under no obligation to become a witness for either of the parties to a suit, choose to pay his debt beforehand, upon a condition that is to be determined by the event of the suit, he becomes as much interested in the event, as if he were a party to a consolidation rule. With. respect to the case of Barlow v. Vowel, which was much cited in this case of Forester v. Pigou, the Court considered the point as having been there determined on the ground of fraud. — Lord Raymond in the case of the
King v. Fox(1) admitted the prosecutor to be a witness, although he had laid a wager, that he should convict the defendant: and the reason seems to be, not because the witness had made the wager at a time when public justice became interested in his testimony, but because it would be against public policy to allow a witness by any such gratuitous act to exclude himself from giving evidence; and there seems to be another reason for admitting the witness, since the wager would now probably be considered absolutely void, as tending to produce an improper bias on the mind of the witness, and therefore as directly prejudicial to the administration of justice.
3. When the witness must be answerable to one or the other of the parties, and the event of the suit determines only to which, he may be examined by either of them without a release. Thus in an action of assumpsit for money paid to the use of the defendants, who were shipowners, Lord Kenyon admitted the captain to prove, that he had received the money from the plaintiff for the defendant's use; for he stood indifferent between the parties, and he was equally answerable, whichever way the verdict might go. (2)
(1) 1 Str. 651. n. (c), and see ante p.53., on this sub.
(i) Evaus v. Williams, 7 T. R. 481- ject.
On the Admissibility of Counsel or Solicitor.
r I ''HE objections to the competency of a witness, which have been considered in the four preceding chapters, are of a nature to exclude him from giving any kind of evidence. One other objection still remains to be considered; not an objection to his competency, but to particular evidence, which he may be called upon to disclose. This is founded on the professional confidence, which a