prove the robbery and the amount of his loss, "from necessity, on default of other proof (1).” And in the case of Bennet v. Hundred of Hertford (2), which was an action on the same statute, brought by a carrier for a robbery committed in his absence on his servant, the Court ruled, against the opinion of Rolle C. J., that the plaintiff might prove the amount of the money which he had delivered to his servant. The 15th section of the statute 8 G. 2. c. 16. recites, that in an action against the hundred the person robbed may prove the robbery and the property of which he was robbed.. But though the plaintiff may prove the fact of the robbery, yet with respect to matters, which may be proved by other evidence, he is not a competent witness. Thus he cannot give evidence to prove, that the place, where he was robbed, is within the hundred against which he has brought the action (3). And though the party robbed, who brought the action, has been allowed to be witness even in his own cause, yet none of the inhabitants of the hundred were formerly received on behalf of the hundred, however inconsiderable their interest might be (4). But now they are competent witnesses by the statute 8 G. 2. c. 16. s. 15. One other exception appears to be made in the case of an action for a malicious prosecution, where it seems to have been understood, that the evidence, which the defendant himself gave on the trial of the indictment, may under certain circumstances be received in his favour on the trial of the action. In the case of Johnson v. Browning (5), Lord Holt C. J. admitted in evidence the oath of the defendant's wife (who was the only person present at the time of the supposed felony, and who, as the report says, could not herself be witness,) to prove the felony (1) 2 Roll. Ab. 686. Bull. N. P. 289. (2) 2 Roll. Ab. 686. Vin. Ab. Ev. (1), pl. 34. 83. (3) Per Page J. Rep. temp. Hard. (4) Per Cur. in R. v. Carpenter, 2 Show. 47. (5) 6 Mod. Rep. 216. com committed; " for otherwise, it is said, one that should be robbed would be under an intolerable mischief; if he prosecuted for such robbery and the party should be acquitted, the prosecutor would be liable to an action for a malicious prosecution without the possibility of making a good defence, though the cause of prosecution were ever so pregnant." And Mr. Justice Buller, treating of this action, says (1)," as it may come to be left to a jury, it is advisable for the defendant to give proof of a probable cause, if he be capable of doing it; and for this purpose proof of the evidence given by the defendant on the indictment is good." In the case of the Mayor and Commonalty of London (2), and that of the city of London concerning water-bailage (3), the point in issue was, whether the corporation was entitled to certain tolls; in the first case it was ruled by the whole Court, and by three judges in the last, that freemen (members of the corporation) might be witnesses in support of the claim, because the tolls would be received for the benefit of the whole corporate body, and the interest of any individual must therefore be inconsiderable. But Mr. Justice Buller has doubted the law of the former case (4), and its authority is still further shaken by the case of Burton v. Hinde (5), before mentioned. Freemen are sometimes admitted as witnesses from necessity, when they would otherwise be objectionable. A case of this kind is mentioned by Mr. Justice Buller (6). "The question being, whether the defendants had a right to be freemen, an alderman was permitted to prove that they were not freemen, because none but aldermen were privy to the transactions of the corporation in making per (1) Bull. N. P. 14., citing Cobb. v. Car. 1746. (2) 2 Lev. 231. (4) Bull. N. P. 290. (5) 5 T. R. 174. See ante, p. 52. (6) R. v. Phipps & Archer, Bull. N. P. 289. and see ante p. 40. sons sons free; although it appeared that there were commons belonging to the freemen." In courts of equity, if a bill is filed for discovery only, and an issue is directed, the plaintiff goes to law, giving the defendant the benefit of his answer (1). And it seems at one time to have been the practice to direct an issue, where a bill was filed for relief, and the defendant's answer positively denied the facts stated in the bill, which was supported only by a single witness; and in such cases the defendant's answer was directed to be read at the trial (2). But an issue would not now be directed, where there is merely oath against oath, for the rule in equity is, that if the answer contains a positive denial of the case stated in the bill, and it is contradicted only by a single witness, there cannot be a decree against the defendant (3); it should seem, therefore, that in such a case the answer of the defendant cannot be directed to be read at law. And the Court has refused to make an order to that effect, where the plaintiff's witness was supported by concurring circumstances. (4) As a party to the suit is not suffered to be witness in support of his own interest, so he is never compelled in courts of law to give evidence for the opposite party against himself. Thus, in a question of settlement between two parishes, the rated inhabitants of either parish, being in reality the parties to the proceeding, cannot be compelled by the adverse party to answer against their own interest (5); and their declarations are evidence against themselves (6). But where one of several co-plaintiffs comes forward voluntarily to disprove the defendant's liability to the demand made upon him, he may be admitted with the consent of the (1) See 9 Ves. 282. (2) Ibbotson v. Rhodes, 2 Vern. 554. 3 Atk. 408. Gilb. Ev. 137. (3) See infrà, Ch. VII. Sect. I. (4) Only v. Walker, 3 Atk. 407. (5) R. v. Woburn, 10 East, 403. Fenn dem. Pewtriss and another v. Granger, 3 Campb N. P. C. 177. (6) R. v. Hardwick, 11 East, 579. R. v. Whitley Lower, 1 Maule & Sel. 636. adverse adverse party, though at the same time he defeats the claim of those who jointly sue with him (1). For, if the plaintiff were to make a declaration against his interest out of court, evidence of that declaration would be admissible; and how is the proof less credible, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing upon oath at the time of the trial? A defendant cannot regularly be witness for co-defendants: but, if no evidence has been produced against him, he is entitled to his discharge, as soon as the opposite party has closed his case, and may then give evidence for the others (2). If this were not allowed, great injustice might be done by including witnesses in the process, for the purpose of supporting a false charge. But if there is any even the slightest evidence against him, he cannot be discharged before the rest, and the case must go altogether to the jury (3). So, in trespass against a person, "for that he, together with A. B., &c.," committed the wrong complained of, if it appears that A. B. was concerned in the trespass, and that process was sued out against him, and an endeavour made to arrest him, or that the process was lost, he cannot be admitted a witness for the defendant (4): but if nothing is proved against A. B. then he ought to be admitted (5). The following case is put by Ch. Baron Gilbert: "Trespass against A. and B. for two horses- evidence against A. as to one- and the question is, if he may be a witness for B. in relation to the other; and it seems, that if it were the same fact, and the trespass committed at the same time and place, he may not be a witness, because he swears to discharge himself; but if it were not the same fact, but two distinct trespasses at different times and (1) Norden and another, v. Williamson, I Taunt. 378. (2) Case of Dymoke and others, Sav. 34. pl. 81. R. v. Bedder and others, 1 Sid. 237. Hawk. b. 2. c. 46. s. 98. Gilb. Ev. 117. Bull. N. P. 285. Case of the Mutineers of the Bounty, cited I East, 312. (3) Bull. N. P. 285. Gilb. Ev. 117. Raven and another v. Dunning and another, 3 Esp. N. P. C. 25. (4) Reazon v. Ewbank, Bull. N. P. 286. Hill v. Fleming, Rep. temp. Hard. 264. Lloyd v. Williams, Ib. 123. (5) Page v. Crook, Styl. 401. 1 Atk. 452. places, places, arbitrarily joined in the same declaration, then they may be witnesses one for the other, because the oath of one of them has no influence on the fact laid to his charge, but merely goes in discharge of the other." (1) In a case where one of the defendants on an indictment for an assault submitted and was fined, and paid the fine, Pratt C. J. allowed him to be witness for another defendant, considering the trial as at an end with respect to him (2). But on a joint indictment against several for a misdemeanor, a defendant, who suffers judgment by default, cannot be a witness either for the others (3) or against them (4). And in an action on a joint contract against two defendants, where one let judgment go by default, Lord Kenyon refused to admit him as witness for the other defendant to negative the contract; for, if negatived as to one, it fails as to the other, and the plaintiff could not make use of the judgment by default against him (5); nor is he a competent witness for the plaintiff, for, if the plaintiff succeeds, he will be entitled to a contribution from the co-defendant, and if the plaintiff fails, he himself will be liable to the whole of the demand (6). It has been held at nisi prius, that a defendant in an action of trover, who suffers judgment by default, may be witness for the co-defendants, as he is not liable to the costs of the issue tried against the other, and is not himself released whatever may be the event of that issue (7). If a material witness for a defendant in ejectment is made a co-defendant, his proper course is to let judgment go by default; but if he plead, the Court will not afterwards upon motion strike out his name (8). "But in such case," says Mr. Justice Buller, "if he consent to let a verdict be given against him for so much as he is proved to be in pos (1) Gilb. Ev. 118. (2) R. v. Fletcher, 1 Str. 633. (3) R. v. Lafone and others, 5 Esp. N. P. C. 155. (4) Bull. N. P. 285. Chapman v. Graves, 2 Campb. N. P. C. 333. n. (5) Brown v. Fox, Exr. Sum. Ass. 1789, MS. (6) Brown v. Brown and another, 4 Taunt. 752. (7) Ward v. Haydon and another, 2 Esp N. P. C. 553. See 2 Campb. N. P. C. 334. (8) Dormer v. Fortescue, Bull. N. P. 285. session |