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However, it is to be observed, there are several dicta in favour of the position, that a witness is not competent, if he believes himself interested, whether he is or is not interested in strictness of law (i). But these dicta were not the ground of the determination in the cases then before the Court, nor was it necessary to determine the point; and further, the general rule of law on the subject of interest was not at that time so clearly settled, as it has since been by many later authorities. In a late case (2), before the High Court of Admiralty, an objection was made to the evidence of a witness, who had acknowledged in his answer "that he could not say he was not interested, inasmuch as he conceived he would be entitled to share, if his vessel should be pronounced a joint captor, though he had signed a release;" on the other side it was contended, that as he was clearly not interested, the effect of his impression was no more an objection in this case, than in those in which the expectation depended only on the bounty of the parties. But Sir William Scott rejected the evidence, observing, "he had always understood the distinction to be, that, if the witness says only that he expects to share from the bounty of the captors, he is not disqualified or rendered incompetent, whatever may be the deduction of credit to which he is exposed. But if he thinks himself entitled in law, he acts under an impression of interest, which renders him incompetent, however erroneous that opinion may be."
Having shewn what is not such an interest in the event of the suit, as will disqualify a witness from giving evidence, we now proceed to inquire what is such an interest as will disqualify him.
If the witness can avail himself of the verdict, so as to give it in evidence in support of his own claims, or if the
(1) By Pratt C I. in Fotherinpham i H. Bl. J07. S. P. by Perryn B. in
T. Greenwood, 1 Str. 129. cited and ap- Newland's case, I Leach, Cr. C. 353. proved by Lord Loughborough C.J., and (1) Ca»e of the Amitic, Villeneure,
by Gould J. in Tielawniy v. Thomaa, 5 Robinson, Adm. Rep. 344. n.
verdict verdict can be used in evidence against him, in case the party, for whom he is called as witness, should fail in the action, this is a direct and immediate interest in the event of the suit, which will render him incompetent (1). Thus where a right of common is claimed by custom, one who claims under the same custom cannot be a witness in support of the claim, as he might afterwards use the verdict in his own cause to establish a similar customary right for himself (2). It may perhaps be said, that, if he were allowed to be a witness, he could not afterwards use the verdict; for, on the trial of his own cause, if it should appear that he was witness in the former suit, to admit the verdict as evidence for him would be in effect allowing a party to give evidence for himself. The answer to this objection seems to be, that the fact of his having given evidence in the former case would probably be unknown at the time of the second suit; and, even if that fact should be fully proved, yet it would be presumed, that he was disinterested, and then the verdict might perhaps be evidence for him, upon the same principle which allows the depositions of a witness in a suit in equity to be evidence for him on a bill of revivor brought by the witness himself (3). A commoner, then, is not competent to support a custom, under which he himself claims. So in an action on the case by a commoner against the defendant, for not repairing his fences contiguous to a common, where one of the points in issue was, whether the defendant was liable to repair by reason of his occupation, it has been determined that other persons, who claimed a right of pasture over the same common, were not competent witnesses for the plaintiff (4), because the record would be evidence for another commoner, that the occupier of the adjacent land was bound to repair this fence; and though the plaintiff in that case claimed a right of common by prescription, in right of a particular mes
(1) 3 T. R. it, 33. 36. 7 T. R. f3) Goss v.Tracy, I P. Wms. 188.; 62. 4 East, 581. a Vern. 699. S. C. Haws v Hind, %
(i) 1 T. R. 301. 3 T. R. 31. Atk.615. Bull. N. P. 183. Hockley v. Lamb, (4) Anscomb v. Shore, 1 Taunt. 1 Lord Rayra. 731. 161.
suage, still the other commoners, by whatever title they might claim, would have a common interest in casting the burthen of the repair of this individual fence upon the occupier of the adjacent land. So where the question is, whether in a particular parish or vill certain things are generally exempted from tithes, or subject only to a modus, no persons who would be subject to tithes, if the parson's claim were to be allowed, can give evidence in support of the modus or exemption (i). So where a defendant in an action of trespass justifies under a custom in the parish for out-going tenants to take the away-going crop, he cannot call as witness an occupier of land, who insists upon the same right for himself. But where the issue does not affect any common right, but is merely on a right of common claimed by prescription as belonging to the estate of A, one who claims a prescriptive right of common in right of his own estate may be a witness (2); for though A may have such a right of common, it does not follow that B has, nor would the verdict in the action of A be evidence in B's action.
"It is no good objection to a witness, says Ch. B. Gilbert (2), that he has common by cause of vicinage in the lands in question, for this is no interest in the land, but only an excuse for trespass; and let who will recover the lands, the whole right of common remains, so that he is certainly indifferent in point of interest' between the two contenders." However, this position may perhaps be doubted, as the rule is now clearly established, that a witness, who can use the verdict in an action brought either by or against himself, is not competent; and since common by cause of vicinage is in the nature of common appendant, and implies immemorial usage of intercommonmg, it is presumed, that a verdict, finding the existence of such an usage, would be evidence for the witness, if he were to
(1) Ld. Clanricard v. I.y. Demon, stated 1 SeL N.P.449. 1 T.R.308. 1 Gwffl.360. Gilb.Ev.113. Bull. N. P. 183.
(1; Harvey v. Collison, MS. can (3) GUb. Ev. 109.
justify justify under the same usage in an action of trespass. It may be observed, that Ch. B. Gilbert does not once mention the power of using the verdict as a criterion for determining whether the witness is incompetent; so undefined at that time was the rule of evidence on this subject.
Persons liable to the costs of the action have an immediate interest in the event, and therefore are not competent witnesses. For the same reason, the defendants' bail are not competent to give evidence for their principal (1), because they are immediately answerable in case of a verdict against the defendant. So, in an action against a sheriff for a false return, the sheriff's officer, who has given security for the due execution of process, is not a competent witness, to prove that he endeavoured to make the arrest (2). So, in an action by an infant plaintiff", his prochein amy or guardian are not competent witnesses for him, as they are liable to costs (3). So, in an action against a master for the negligence of his servant, the servant is not a competent witness to disprove his own negligence; for the verdict may be given in evidence, in a subsequent action by the master against the servant, as to the quantum of the damages, though not as to the fact of the injury (4). So, in an action of assumpsit for goods sold and delivered, the plaintiff having proved the sale of the goods to the defendant and one J. S. who were partners in trade, Lord Kenyon held that J. S. could not be a witness for the defendant, to prove that the goods were sold to himself, and that the defendant was not concerned in the purchase except as his servant; for, said Lord Kenyon, by discharging the defendant he benefits himself, as he will be liable to pay a share of the costs to be recovered by the plaintiff(5). So in an action by an indorsee against the
(1) I T.'R. 164. (4) Green v. New R. Company,
(i) Powell v. Hord, 2 Ld. Raym. 4 T. R. 589. Martin v. Hearickson,
1411.; 1 Str.650. S C. 3 dmpb.523. 2Ld. Raym. 1OC7. Miller v. Falconer,
(3) James v. Hatlield, 1 Str.548. 1 Campb. 251. 15 East, 474. 3 Campb.
Hopkins v. Neal, 2 Sir. 1026. Gilo. 516.
Ev. 107. (5) Goodacre T. Breame, Peake
10 acceptor acceptor of a bill of exchange, which had been accepted for the accommodation of the drawer, the drawer is not a competent witness for the defendant to prove that the holder took the bill for an usurious consideration. This was lately determined in the case of Jones v. Brooke (i). The Court of Common Pleas there held, that the witness was interested to defeat the action; for, if the holder should succeed against the acceptor, the acceptor would not only have a right of action against the drawer for the principal sum, but also for all damages, which as acceptor he might sustain in being sued upon the bill; the drawer of an accommodation bill being bound to indemnify the acceptor against the consequences of his acceptance for the drawer's accommodation.
Upon the same principle it has been determined, that, on an appeal against an order of removal, if the appellants prove a settlement in a third parish, the rated inhabitants of that parish are not competent witnesses for the respondents to disprove it; as the confirmation of the order of removal would be conclusive evidence for the inhabitants of the third parish, that the settlement of the pauper was at that time in the appellant parish (2). It would indeed be quite as conclusive in favour of any other parish ill the kingdom; so that the proposed witness had a greater interest in the question than any other person, only in proportion as there was a greater probability, that, if the appellants failed in this appeal, they would afterwards remove the pauper to his parish. Such an objection, however, is now removed by the statute 54 G. 3. c. 170. the 9th section of which enacts, "that no inhabitant or person rated or liable to be rated to any rates of any district, parish, &c., shall be deemed to be by reason thereof an incompetent witness for or against such district, &c., in any matter relating to such rates, or to any order of removal to or from such district, &c., or to the
(1) 4 Taunt. 464. Maundrel v. Ball v. Boitock, i Su-.i75.as to the inKennet, 1 Catnpb. 408. Sec also Tre- competency of witnesses liable to costs, lawny v.Thomas, U H. Bl . 3c6. and (1) R, v.Twington, I5 East,47i.