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to prove the forgery of an instrument which they have signed as subscribing witnesses, clearly shew, that a man's guilt in the transaction disclosed is not a sufficient reason for rejecting his testimony, however it may affect his credibility. In the case of Walton v. Shelley (i), which was an action upon a bond given by the defendant, in consideration of delivering up certain promissory notes, the Court of King's Bench held that the indorser of one of the notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, "that no party who had signed a paper or deed shall ever be permitted to give testimony to invalidate that instrument; because every man, it was said, who is a party to an instrument, gives a credit to it: And it is of consequence to mankind, that no person should hang out false colours to deceive them, by first affixing his signature to a paper and afterwards by giving evidence to invalidate it." This appears to have been the first case in support of such a rule. In the later case of Jordaine v. Lashbrooke (2), 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. "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 con

(») iT.R. 296. (1) 7 T. R. 601, Ailium J. contra.

See 4 Taunt. 604.

(D' sequence sequence to prevent men from hanging out false colours: but this must be applied to the parties in the cause, or you may prejudice men who have not hung out such colours."


Of' the Incompetency of Witnesses from Interest.

rT,HE 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 the party to which their 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 peijury. 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 speak against hit 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 pei"mitted, 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 shortsighted 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, 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 purposes for which it was intended, and whether upon the whole it may not have contributed to obstruct rather than to promote mote the ends of public justice. It is certain, that Courts of justice now generally adopt the principle, that it is wiser to hear the witness than at once to rejeet 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 entitled to credit. The legislature also shews, that it acts upon the same principle, by having provided in many instances for the admissibility of witnesses, when they must otherwise have been rejected as incompetent.

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 husband or wife of the party;

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

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 disqtialffies 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. The question then resolves itself into this, whether the witness, proposed to be examined, has an interest in the event. 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.

It is not an objection to the competency of a witness, that he may have wishes or a strong bias on the subject matter

(1) 1 T. R. 30a. 3 T. R. 36. 7 T. R. 603.

of the suit, or that he may expect some benefit from the result of the trial. 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 vto determine what dependence ihey can have on his testimony; but they will not render him incompetent. A witness who stands in the same situation as the party, for whom he is called to give evidence, is under a strong bias, but is not on that account disqualified. Thus if there are two actions brought against two persons for the same assault, in the action against one the other may be witness (i); 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 Rudd's case (3), a woman, whose husband had been before convicted, was admitted to give evidence against the prisoner, though she expected that, in case of his conviction, her husband would receive a pardon. So in the case of Bent v. Baker, which was an action against an underwriter on a policy of insurance, the court held after much argument, that another underwriter was a competent witness (4). 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, but was at length abandoned (5). 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 sub- % scribed by the defendant, and had afterwards himself subscribed the policy as assurer, was a competent witness for

(1) Per Buller J. I T. R.301. (3) I Leach Cr. C. 151.

(a) Bath v. Montague,cited Fortese. (4) 3 T. R.17. B1u■ «, p *°3,

Rep. 247. Gunnone v. Downes, a S. P.

RoU. Abr. 68 c, Art. 3; S. C. cited (5) ?T,R. 604.
aEP.C. 180, and in R. v. Gray,(or
Bray), a S*L H. P. 1046.

D 3 the

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