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settlement of the pauper in such district." Before this provision, it had been decided, that inhabitants would not be incompetent merely from having rateable property in the parish, if it did not appear that the property was actually rated at the time of the appeal; and this, although it was omitted in the rate, for the very purpose of introducing their evidence (1). The Court held, that in order to disquahfy a witness, there must be an actual existing interest at the time, not merely one that is expectant and contingent; and that, by taking the witness off the rate, his immediate interest was so far taken away, that it could not render him incompetent, whatever objections might still be made against his credibility.
In an action of ejectment, the tenant in possession, upon whom an ejectment has been served, is not a competent witness in support of the title of the defendant under whom he holds; for he is liable to the mesne profits, and the verdict in ejectment would be evidence against him in an action to recover them (2). So a witness, to whom the lessor of the plaintiff has agreed to demise the lands in question, in case he shall recover them by the verdict in ejectment, would not be competent to give evidence against the defendant; because, in an action for the non-performance of that agreement, the verdict would be evidence for him to prove the fact of the lands having been recovered. To this effect Ch. B. Gilbert has laid it down (3), that if a man promise a witness, that in case he recover the lands he shall have a lease of them for so many years, this excludes the evidence, for then the witness would have a fixed and certain advantage by the event of the verdict. So a witness has been rejected, who, if the plaintiff failed in the action, was to repay a sum of money in his hands belonging to the plaintiff, but was not to repay any part of it, if the plaintiff suc
(1) R. v. Prosser, 4 T. R. 17. R. v. (a) Bourne v. Turner, 1 Str. 632. Little Lumlev, 6 T. R. 157. R. v. Doe d. Fortter r. William*, Cowp. 61v Kirdford, 1 East, 561. (3; Gilb. Ev. 10J. citing a dictum of
Twisden J. in 1 Mod. 11.
ceeded (1). And in the case of Forrester v. Pigou (2), an action on a policy of insurance, where the defendant called another underwriter as witness, who in his examination on the voire dire said, he had paid the loss to the plaintiff upon an undertaking, 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, Lord Ellenborough C.J. on the trial rejected the witness. On a motion afterwards for a new trial on account of this rejection, the Court sent the case to be retried, for the purpose of ascertaining more particularly the time when the undertaking was made to the witness; but on that occasion Lord Ellenborough said, "if a person, who is under no obligation to become a witness for either of the parties to the suit, choose to pay his debt beforehand, upon a condition that it is to be determined by the event of that suit, lie becomes as much interested in the event as if he were a party to a consolidation rule."
The rule, that a witness is not competent, if the verdict can be given in evidence either for or against him in a future suit, is of all the rules on this subject the most comprehensive, and at the same time the most accurately defined. And if this were the single criterion for ascertaining whether the witness is incompetent, the question of interest, which now is often a question of difficulty, would be greatly narrowed. Lord Kenyon seems disposed to consider this rule as the only true test of competency. In the case of Bent v. Baker (3), he says, "it is to be considered, what is the question put to a witness on his voire dire? It is, is he really interested in the cause? Sometimes, indeed, the counsel enter into the detail, and ask how he is interested? But the general question involves in it all the others, and amounts to this, whether the record in that cause will affect his interest?" Then again he says, "I think the principle is this, if the proceedings in the
(l) Fothtringham v. Greenwood, (1) 1 Maule & Scl. 9. iStr. 129. (3) 3T. R.32. and see 7 T. R.62.
E cause cause cannot be used for him, he is a competent witness, although he may have wishes upon the subject." And Mr. Justice Buller in the snme case says, " The true line I take to be tins, is the witness to gain or lose by the event of the cause? Now this witness could not gain or lose by the event of this suit, because the verdict could not be evidence either for or against him in any other suit." However, it will appear from a variety of cases, that witnesses have been considered incompetent on account of interest, although the proceedings in the suit could never be used in evidence either for or against them.
On the subject of interested witnesses, Ch. B. Gilbert lays down the rule thus (1), "the law looks upon a witness as interested, where there is a certain benefit or disadvantage to the witness attending the consequence of the cause one way." Mr. Justice Buller adopts the same rule (2). So, in the case of the King v. Prosser (3), where the question was, whether, on an appeal against a rate, parishioners, who had rateable property but were not actually rated, were competent witnesses in support of the rate, the same learned judge expressed himself thus, "I take the rule to be this; if the witness can derive no benefit from the cause before the Court, (meaning evidently from the context, no immediate benefit,) he is competent." And it appears to be established by a variety of cases, that a certain direct and immediate interest will disqualify, although it may happen that the verdict in the cause cannot be evidence, either for or against the witness in any future suit concerning that interest. The following examples may be cited to illustrate this general rule.
1. Rated parishioners were always considered incompetent, before the late act of parliament (4), to give evidence for their parish in appeals against orders of removal, on
(1) Gift.Ev. 106,7. (3) 4T.R. 10.
(1) BulL N. P. 284. (4) St. 54 G. 3. c.170. § 9.
the the ground that they were directly and immediately interested in the event of the proceeding, by which the maintenance of the pauper and the costs of the appeal might be fixed upon their parish, and have the effect of increasing their proportion of the rates, (1) his allowance (1). And the petitioning creditor is not a competent witness to prove the commission regularly sued out; because he enters into a bond to the Lord Chancellor conditioned to establish the several facts, upon which the validity of the commission depends, and to cause it to be effectually executed (2). But another creditor who has not proved his debt under the commission, is competent to support the commission, though not to increase the estate (3). There is in this case no immediate or certain benefit. It may be as advantageous for the creditor to be allowed to sue his debtor as a solvent person, as to receive a dividend under the commission.
2. A devisee, who takes an interest under a will, is not competent to speak to the testator's sanity, in an action of ejectment by another devisee against the heir at law.
3. A bankrupt is not a competent witness in an action by his assignees to prove property in himself or a debt due to himself (2), or in any other manner to increase the fund. Nor can he prove his own act of bankruptcy, or the petitioning creditor's debt, or any other part necessary to support the commission, not even after obtaining a certificate, and executing a release of his share in the surplus; for if the commission is not good, the certificate and all the proceedings are void, and the bankrupt will be liable again to his debits, from which the certificate would discharge him (3). For the same reason he cannot be questioned as to any antecedent act of bankruptcy, either in his examination in chief or in his cross examination (4). And on a second commission of bankruptcy, a certificated bankrupt cannot be a witness for the assignees under that commission, unless he has paid 15 shillings in the pound, for in the event of his not making that payment under the second commission, his future effects are liable. (5)
4. A creditor of a bankrupt is not competent to increase the fund, out of which he may receive a dividend. He cannot therefore give any evidence to deprive the bankrupt of
5. In an action of trespass against a sheriff) where the question was, whether goods, which had been taken in execution in a suit against A. B., belonged to him or to the Plaintiff, A. B. was not allowed to be witness for the defendant to prove the goods his property, since he would have been discharged from his debt in case of a verdict for the defendant. (4)
6. In an action of ejectment, where the plaintiff had made out a prima facie case against the defendant as tenant in possession, the Court of Common Pleas held that a witness called on the part of the defendant was not competent to prove himself the real tenant, and that the defendant was only his bailiff; for the verdict would have the effect of turning him out immediately; it was therefore an immediate interest, and outweighed the remoter effect of his subjecting himself by his testimony to an action of ejectment and trespass for mesne profits. (5)
If there is a direct interest in the event of the suit, it will make the witness incompetent, however small and in
(1) Shuttleworth v. Bravo, I Str. (4) Bland v. Ansley, 1 New. Rep.
(a) Green v. Jones, 2 Campb. 411. (5) Doe d. Jones v. Wilde, 5 Taunt.
(3) Williams v. Stevens, 1 Campb. 183. 301.