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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 Ashurst, 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 concurred in that opinion; but Lord Kenyon C. J. declared, that the other was the principal ground of his opinion. He said, "The objection in, that the witness was underwriter on the same policy. I must acknowlege, 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, altho' he may entertain wishes upon the subject: for that only goes to his credit, and not to his competency."
For the same reason, a witness is not incompetent on the ground, that the verdict may afterwards come to the hearing of a jury in an action brought by the witness himself, and so have an influence on their judgment, though not in evidence before them. Lord Holt, indeed, in the case of the King v. Whiting (i), on an indictment for a cheat, in obtaining a person's subscription to a note of tool, instead of 5I., rejected the evidence of the maker of the note; Lord Holt said, the verdict would be certainly heard of, in an action on the note, to influence the jury. This decision was folr lowed by Lord Hardwicke C. J. in the case of the King v. Nunez (2): but afterwards in the case of the King v. Bray (3) Lord Hardwicke reviewed his own opinion and
(1) 1 Salk. 183/
(3) Rep. Temp. Hard. 3Si.
that that of Lord Holt, and decided that the objection went only to the credit and not to the competency of the witness; and with respect to the possibility that the jury might hear of the verdict, he said, that sitting as judge he could only hear of it judicially. Thus, where A having brought an action against B (who filed a bill in equity for an injunction, and after answer put in by A, denying the allegations in the bill, the injunction was dissolved,) A was afterwards indicted for perjury alleged to have been committed in his answer, and the indictment came on to be tried immediately before the action, the Court of King's Bench determined that B was a competent witness and had been properly admitted to give evidence on the trial; as he could not avail himself of the conviction of A in any civil proceedings between them either in law or equity (i). So a person, who has borrowed money on an usurious transaction, is a competent witness for the plaintiff in an action for penalties against the lender. (2); and, whether he has or has not repaid the money lent, does not appear to make any essential difference, at least so far as his competency is affected *j for in neither case does he gain any thing immediately by the event of the suit, nor can he give the judgment in evidence in an action against him for the money lent. A mere contingent benefit, then, which
(1) R. v.Boston, 4East.572. See (2) Abrahams q t. v. Bunn,4 Burr. ftit, Sect. VI. a15i. Smith v. Prager, 7 T. R. 60.
See Masters v. Drayton, 2 T. R. 496.
* In the case of Smith q. t. v. Prager, the witness said he had repaid the principal sum and interest by drafts which had been duly honoured, and that he was still indebted to the defendant on a running account for this and other loans. It may be observed, that at the time of the trial the witness was an uncertificated bankrupt : but this was not considered as furnishing any objection. (See Masters q. t. v. Drayton, 2 T. R. 496. See also Ridley v. Taylor, 13 East, 175.) In the Srst case cited, of Abrahams q. t. v. Bunn, the witness proved, that he had redeemed the pledges and repaid the principal sum, and he was competent to prove that fact. Lord Mansfield is reported to have said, " that if the defendant had produced a security or proved the pledge to be remaining in his custody, it would have been a different consideration, whether the witness who was the borrower of the money could be examined to contradict this." However it may be inferred from the case of Jordaine v. Lashbrooke which has been before mentioned, that
this consideration would not now effect the ttmfittiuy of the witness. See Supra,
D 4 may may result to the witness from the event of the suit, (as, that it may possibly be more easy for him to establish his own claim, in case the party calling him should succeed,) can only affect his credit and not his competency, unless the verdict would be evidence for him.
Upon the same principle, a witness, who has acted under a bare authority, is not to be excluded from giving his testimony, on the ground, that he may be liable to an information or an action, in case the fact, which he comes to prove, should be found otherwise (1). Thus persons, who have been themselves in office, are often called to shew what the usage is, and what they did when in office; yet if their acts be illegal, they are liable to a quo warranto (i). If persons were not allowed to be competent witnesses in matters belonging to corporations, because they may possibly be punished by information, much good evidence would be shut out. Wherever any unlawful act is done in a corporate assembly, the whole assembly are liable to an information; yet the persons who were present at such assemblies are always allowed to be good witnesses; and if they were not allowed, there would be no evidence at all as to such facts (2). So a witness may prove a codicil made subsequent to a second will, and reviving a former will, though he has acted under the first, will, and might be liable to actions as executor de son tort, if it should be set aside (3). Indeed, it may be laid down as a general rule, that executors in trust, trustees, and agents, are not incompetent merely on the ground of their liability to action. (4)
In the cases which have been mentioned, the objection against the witness was, that, either from the circumstance of his standing in the same situation as the party for whom he was called, or because the verdict might possibly influence the jury in a cause in which he himself might be party, or from some other cause of the same kind, that he expected a benefit from the result of the suit. The witness in those cases would probably have admitted, that he thought himself interested; it was upon the supposition of this fact, that the objection must have been founded. Those cases, therefore, in which such objections were over-ruled, appear to have determined this point, that a witness will not be incompetent merely on the ground of his thinking himself interested. It is true, if he believes himself interested, the impression on his mind, and his bias in favour of the party calling him, may be as strong, as if he were legally incompetent. But the difference is, that in the one case the inquiry is more simple and more easily defined; in the other, it is complicated, vague, and uncertain. For the purpose of determining that a witness is incompetent on account of his believing himself interested, it might be necessary to examine him on a great variety of points, which after all would be more proper for the consideration of the jury, as for example, on the nature of the benefit which he expects, the reasons for his expecting it, and the impression which such an expectation may have produced upon his mind. Such an inquiry would in all cases be extremely indefinite, and would be subject to this great inconvenience, that it might lead to the rejection of a witness, who on further examination might appear to deserve the highest credit, and might have it in his power to give important evidence. The rule of law respecting interested witnesses is perhaps the best that could be adopted, because it is the least exclusive and most accurately defined. It excludes such only as have an interest in the event of the suit; not that in all cases they are likely to feel a stronger bias than persons, who may perhaps expect some benefit from the event, or may be friends or relations to the party, and yet are not on that account incompetent; but
the kind of interest, which is marked out as the cause of incompetency, is in general more direct and immediate, and more easily ascertained. It has been held, therefore, that a witness is not incompetent, who believes himself under an obligation of honour to indemnify the bail, unless he has in fact entered into an engagement to that effect (1). Such an obligation is in general of a nature so uncertain and variable, that it cannot safely be recognized in courts of justice as a motive of conduct. Besides, where the sense of honour is so strong and binding as to influence him against his interest, it must be unnecessary to reject the witness, as the same principle, which would induce him to pay the costs, would oblige him in giving his evidence to speak only the truth; and in cases where the sense of honour is less firm and imperative, the ground of the objection fails, since the witness is not bound in point of law, and does not feel himself absolutely bound in point of morals. But, independent of this reasoning, another more general answer is, that the ends of justice are more effectually attained by a full and complete investigation of the subject in dispute, and unless the objection to the witness is strictly a legal objection, he will be admitted to give evidence. In the case supposed, of a witness who says he thinks himself bound in honour to pay the costs, it might be injurious to the party who calls him to be deprived of his testimony On account of such a fancied obligation; more especially as it is an obligation which may easily be pretended by the witness, but which it is scarcely possible for the court justly to appreciate, and which from the nature of the case the party cannot release, nor yet enforce against the witness; on the other hand, his testimony may not deserve all the credit due to a witness free from bias, and it ought therefore to be strictly examined and sifted. The witness, then, is to be heard, but his evidence is open to observation.
(1) Pederson v. Stoffles, i Camp. See Fotheringham v. Greenwood, I Str. 145. S. P., said to have been ruled 129. wmtri, iu an old cue, by Parker C. J.;