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considerable the degree of interest may be. Thus, in an action of trespass, where the question was, whether a corporation, which had inclosed part of a common, had left sufficiency for the commoners, a freeman was considered incompetent to prove the affirmative (1), because the rent must have been received for the use of the corporation; though it was admitted that the amouut of the rent was exceedingly small. Hence it appears that a person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune, or character, is as incompetent to give evidence, as one who may be interested to the amount of thousands. This is the unavoidable consequence of the general rule. If interest is allowed to disqualify in any case, it must in all; as it is impossible by any scale to measure the different effects which it may have on different minds. ,

If the witness has an interest inclining him to each of the parties, so as upon the whole to make him indifferent, he will be competent to give evidence for either party. Thus in an action of assumpsit for money paid to the use of the defendants who were ship-owners, 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, whichever way the verdict might go, he was equally answerable (2). So in an action of covenant for rent, where the point in issue was, whether A. B., whose title both the plaintiff and defendant admitted, had demised the premises first to the

(1) Burton v. Hinde, 5 T. R. 174.* 480. Shuttleworth v. Stephens, 1 {,IS Evjosv. Williams, 7 T. R. 481. Cimpb. 407. s. (c). llderton v. Atkinson, 7 T. R.

• See R. v. Mayor and Commonalty of London, 1 Lev. 131., R. v. Carpenter, 1 Show. 47., and case of City of London, 1 Vcntr. 351. contra. In these cases, freemen were admitted to be witnesses on account of the minuteness of their interest, against the opinion of Jones J. The law of the case in a Lev. (where the point is precisely the same as in the other two cases,' has been doubted by Mr. Justice Buller ; see Bull. N. P. 190.

E 3 plainplaintiff or to a third person, A. B. was a competent witness to prove that fact; for the verdict could not be given in evidence in any future action either by or against the witness, being a record between other parties; and it appeared to be indifferent to him, whether he had the one or the other as his tenant (1). So where one partner drew a bill in the partnership firm, and gave it in payment to a separate creditor in discharge of his own debt, the Court of King's Bench held that, in an action by such creditor against the acceptor, either of the partners might be called on the part of the defendant to prove that the partner, who drew the bill, had no authority to draw it in the name of the firm; and that the bankruptcy of the partners would not vary the question as to the competency of the witness(2). In this case, the partner who drew the bill would have been liable to the plaintiff to the amonnt of his debt, if the plaintiff had failed in the action, and if the plaintiff had succeeded, he would have been liable to the defendant the acceptor; and with respect to the other partner, though he would have been liable to the defendant, if the plaintiff recovered, he would have had his remedy over against his joint partner. enforce that remedy. However this appears to be the only case which has been decided on such a ground; and from the leading cases on this subject, which rest on the broad ground of interest, such a circumstance may now more properly be considered as having a strong influence on the witness, but not as forming any solid objection to his competency.

In the case of Uderton v. Atkinson (3), where the question was in an action of assumpsit, whether A. B., who had re-r ceived money due from the defendant to the plaintiff, received it in the character of agent for the plaintiff, the Court of King's Bench held that A. B. might be called for the defendant to prove his agency, as he was liable either to pay the money received or to refund it to the defendant; »nd though it was objected, that he had a stronger interest to give evidence in favour of the defendant than on the side of the plantiff, (since, if he had received the money under a misrepresentation of his own character, the defendant might recover from him the costs of the action then depend

(i) Bel! v, Harwood, 3 T. R.308. (i) Ridley v. Taylor, 13 East,i75, See Serle v. Serle, 1 Roll. Abr. 685., tit, (3) J T. R. 480. Tri«|, (G,) cited Gilb,ET. 109.

ing as well as the money,) the Court held that the possibility of such a remote interest did not make the witness incompetent. Upon the authority of this case, the case of Bii t v. Kirshaw (1) was decided; there, the Court of King's Bench were of opinion, that the indorser of a note, who had received money from the drawer to take it up, was a competent witness in an action by the indorsee agamst the drawer to prove on the part of the defendant, that he had satisfied the note; since he would be liable on the note to the plaintiff, if the defendant succeeded, or to the defendant in an action for money had and received, if the plaintiff succeeded; and the Court held, that the witness was not rendered incompetent by the circumstance of his being also liable to the defendant, in the latter case, for the costs of this action in consequence of his non-payment. But in the recent case of Jones v. Brooke (2), which was an action against the acceptor of a bill accepted for the accommodation of the drawer, the Court of Common Pleas held that the drawer was not a competent witness for the defendant to prove, that the holder received the bill on an usurious consideration; on the ground, that he was bound to indemnify the acceptor against the consequences of an acceptance made for his accommodation, and would therefore be liable to the acceptor not only for the principal sum but also for all the damages which he might sustain in being sued upon the bill in this action. The liability to the costs of the action, as appears from several cases before mentioned, is a substantial objection to the competency of a witness; and however indifferent he may be in other respects towards either party, yet if he has inclined such a liability, he has an immediate and direct interest in the event of the suit. In the case of Bucklandv. Tankard (3) the Court held that a witness, who might have a remedy by action whether the plaintiff or defendant had a verdict, was nevertheless interested, because under the particular circumstances he would have a greater difficulty in the one case than in the other to

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The objection to a witness on account of his being interested is an objection on the voire dire, and excludes him from giving any kind of evidence for the party who calls him. If the objection prevails, he cannot be examined at all. The meaning of the rule, which declares that an interested person shall not be witness in courts of justice, must be that he cannot be heard at all as a witness on the side to which his interest inclines him. Chief Baron Gilbert lays it down, that he is totally excluded from all attestation, from his supposed want of integrity. Thus on an indictment against a township for not repairing a highway, a parishioner seems not to be a competent witness for the prosecution, even to prove the road to be a common highway; though it may be said, that to such an extent he charges himself, and his testimony is against his own interest. The answer to this is, that on the trial of this indictment his evidence has not that tendency; for without the proof of that fact the indictment cannot be sustained, and the witness by giving such evidence is supporting a prosecution, which, if it succeed, would have the effect of discharging him and the rest of the parishioners. So in an action of ejectment, a witness, who admits, that he is to have a lease of the premises, in case the defendant is turned out of possession by the ejectment, is as incompetent to prove the defendant in possession of the premises, as to prove any other material fact necessary for the support of the action.

Sect. Sect. II.

Of the Rule on the Subject of Interest, considered with reference to the Parties in the Suit.

A Party to the suit on record cannot be witness at the trial for himself or for a joint-suitor against the adverse party (i), on account of the immediate and direct interest, which he has in the event, either from having a certain benefit or loss, or from being liable to costs. The party, therefore, in whose name an action is brought, cannot be a witness, though he be merely trustee for some other person (2); as a prochein amy suing for an infant (3). Persons appointed governors and directors of the poor of a parish under an act of parliament, which authorizes them to assess rates on the inhabitants, but in case of appeal makes them liable to costs, to be indemnified out of the parochial fund, are not competent witnesses on the trial of such appeal; as they are liable to costs individually in the first instance (4). But there is no objection, it is said, to the competency of persons, who are party to a suit in a corporate capacity, and consequently not individually liable to costs, and who are free from all interest in the question. Thus, in an action against the governors of the Foundling Hospital for the amount of work done by the plaintiff, Lord Kenyon admitted several of the governors to prove the badness and insufficiency of the work. (5)

An exception to the general rule is stated by Rolle C. J., in the case of an action against a hundred on the statute of Winton (6), where the plaintiff (the party robbed) may

(1) 1 Vern. 230. 1 P. Wms. 596. (4) R. v. St. Miry Magdalen, BerGilb. Ev. 116. mondsey, 3 East, 7.

(2) Bauerman v. Radenius, 7T. R. (5) Weller v. The Governors of 668. Foundl. Hosp. Peake's N. P.C. 153.

(3) Clutterbuck v. Lord Hunting- And see Barrett v. Gore and .mother, tower, 1 Str. 505. James v. Hatfield, 3 Atk. 401.

1 Str. 548. Hopkins v. Neal, 2 Str. (6) St, 13 Ed. 1. c. 1. ro25. Gilb.Ev.107.

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