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provision is made by the act which regulates hackney coaches, stat. 33 G. 3. c. 75. s. 17.

Secondly, On an indictment against private persons or inhabitants corporate bodies for not repairing a public bridge or the o[^ot'"'c highway adjoming, the inhabitants of the county, town, riding, &c . in which the bridge is situated, are competent witnesses in support of the prosecution, by the 1st Ann. stat. 1. c. 18. s. 13. Even before this statute, such evidence had been thought admissible (1) from necessity.

In an action by a party robbed against the hundred, the inhabitants of the hundred may bo witnesses for the defendants, by stat. 8 G. 2. c. 16. s. 15. Before this act passed, they were not competent, because any one of them would have been liable to pay the debt, in case of judgment agains^ the hundred. (2)

In all cases relative to the execution of the highway act, the surveyor of the parish or place is a competent witness, though part of his salary may arise from forfeitures and penalties inflicted under the act (3). And, on trials of offences against the same act, the inhabitants of the parish or place are also competent. (4) „

Where pecuniary penalties are directed to be applied to the use of the poor, or for the benefit and exoneration of the parish or other place, the inhabitants are rendered competent witnesses on the trial of the offender, by stat.27 G.3. c.29, provided the penalty inflicted by the act of parliament does not exceed twenty pounds. {$)

It has been lately provided by stat. 54G.3. c. 170. s.o., that no inhabitant of any district, parish, &c., who is

(1) Per. Cur. in R. v. Carpenter, a (3) Stat. 13 0.3. c. 78. 2. 69. Show. 47. (4) Sect. 77. and Stat. 30G.a. c.1«.

(a) Per. Cur. in R. v. Carpenter, a. 14. 1 Show. 47. 1 Hal. P. C. a8o. R. (j) R'v. Davia, 6 T,R. 177. v. Kirdford, % East, 561.

rated,

rated, or who is maintained by the rates, or who holds any office in the district, shall be deemed on such account an incompetent witness, for or against such district, parish, &c., in any matter relating to such rates, or relating to the boundary between such district and any adjoining district, or to any order of removal to or from such district, or to the settlement of any pauper in such district, or touching any bastards chargeable or likely to become chargeable to such district, or touching the recovery of any sum for the charges or maintenance of such bastard, or the election or appointment of any officer, or the allowance of the account of any officer of such district.

Persons Thirdly, persons entitled to rewards on the conviction of rewards'0 offenders, whether^ the rewards are given by act of parliament proclamation or by private persons, and persons entitled to the restitution of their property on the conviction of a thief, are competent to give evidence. (1)

Aleuts, ie. Fourthly, it is the constant practice to admit agents to be witnesses for their principals, in order to prove contracts made by them on the part of the principal; and this is allowed from necessity, or rather for the sake of trade and the common usage of business. Thus, a factor may prove a sale, though he is to receive a poundage on its amount (2), or what he has bargained for beyond a stated sum (3). And every person who makes a contract for another, is an agent within the meaning of this rule (4). So where the question was on the custom of a manor, whether a fine was due to the lord during his minority on the tenants' admission, the steward of the manor was allowed to give evidence for the lord, though it was objected to him, that he would be entitled to a fee on admission, which he would lose,

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if the tenant were not admitted (i). And freemen, as was before mentioned, have been allowed to be witnesses in certain cases, although interested, from mere necessity.

On the same principle of convenience, it is the common practice to admit servants and agents, without a release, to prove the payment or receipt of money, or the delivery of goods, on behalf of their master or principal, though their evidence tends to discharge themselves (2). Thus, if money has been overpaid by a servant or paid by mistake, he is a competent witness, in an action to recover it back (3). But where a person has entered into a contract for the purchase of goods in his awn name, it has been held that he is not a competent witness in an action for goods sold and delivered to prove that he purchased them as the agent for the defendant (4). If the agent is equally liable to either party, and indifferent in point of interest, whichever way the verdi^i, may be, he is clearly a competent witness on the general principle (5). The practice of admitting servants without a release, to prove a delivery of goods, or the payment of money, and the like, is for public convenience, "for the sake of trade and the common Usage of business (6)." This sufficiently explains the principle, and at the same time shews the restrictions, to which the practice is subject. Where the act of the servant has been out of the ordinary course of his employment, and a mere breach of duty, the principle does not apply: and it has therefore been ruled at Nisi Prius, that in such a case the servant is not a witness for his master without a release. Thus, in an action to recover back money, which had been entrusted to the plaintiff's servant for a special purpose, and paid by

(i) Champian v. Atkinson. 3 Keli. 119. Adams v. Davis, 3 Esp. N. P. C.

90. Rep. temp. Hard 360. See R. v. 48.

Phipps and Archer, ante. p.59. (3) Martin v. Hovvel, 1 Str. 647. .

(1) Per Holt C. J. in Theobald v. Barker v. Macrae, 3 Campb. 144.

Tregott, 11 Mod. 262. Bull. N. P. (4) M'Braine v. Fortune 3 Campb.

189. 4 T.R. 589,590. Matthews 317.

v. Haydon, 1 Esp. N. P. C. 509. (s) See ante. p.53.

Spencer v. Golding, Peake N.P. C (6) Bull. N. P. 289.

the the servant in illegal insurances, he was considered incompetent without a release (1). And in an action against the defendant for th£ negligence of his servant, he is not competent to disprove the fact of his negligence (2): for since the verdict might be given in evidence in an action by the defendant against the witness, as to the quantum of damages, the servant is directly interested to defeat the action, and docs not come within the exception above specified.

Sect. VIII.

Of the means by which the Competency of an interested Witness may be restored.

The last question that remains to be considered on this part of our subject, relates to the regular mode of making the objection to the competency of a witness, and to the means of restoring his competency.

The rule formerly was that the objection ought to be made on the voire dire, and was not to be allowed after the examination in chief. But for the convenience of the court, and because the incompetency may not at first be suspected, a greater latitude has been allowed. And now, if it is discovered during any part of the trial that a witness is interested, his evidence will be struck out. (3)

When the objection arises from a witness's answer on the voire dire, it may be likewise removed on the voire dire. The party who calls him may examine as to the

(1) Corking v. Jarrard, i Campb. it does not appear whether the plaintiff

37. In Clarke v. Shee, Cowp. 199, gave a release.

w liich was a simi lar case, a release was (i) Green v. New Riv. Ccmp. 4

given. See anonymous case, I Salk. T. R. 589. 3 Camp.516. Birdv.

189; Bull. N. P 39. 189 S. C.; and Thompson. 1 Esp. N. P. C. 339.

r.nonymous case, Bull. N. P. 190. Miller v. Falconer. I Campb. 251.

These were actions by a master to re- 6 I'sp. N. P. C. 73. rover property embezzled hy his servant, ;3) Turner v. Hearte, I T. R. 720.

and the servant was arimi.ted a witness Perigal v. Nicholson, 1 Wightwick, 64.

prove delivery to the defendant; but Howcl v. Lock, a Campb. N. P. C. 24.

concontinuance of his interest, and need not give the best and strictest proof of his competency being restored. Thus, where, in an action brought by a chartered company, a witness for the plaintiffs admitted on the voire dire, that he iiad been a freeman of the company, but added that he was then disfranchised, Lord Kenyon ruled at Nisi Prius, that it was not necessary to prove the disfranchisement by the regular entry in the company's books, and that the witness was competent (1). And, in a later case, on a question of settlement, where the point for the consideration of the Court of King's Bench was, whether a witness produced by the appellants could be examined, after having admitted in his examination on the voire dire that he was the occupier of a cottage in the appellant township, but that he had never been charged with or paid any public rate or tax in that township, the court held, that there was no ground for objecting to his testimony, and that it was not necessary for the appellants to produce the rate, in order to negative the rating. (2)

Whatever interest a witness may have had, if he is divested of it by release or payment or any other means, when he is ready to be sworn, there is no objection to his competency. Thus it is said "to have been solemnly agreed by the judges, that where a person had a legacy given him and did release it, he was a good witness to prove the will(3)•."

So

(1) Butchers' Company v. Jones, (a) R.v. Gisburn, 15 East, 57. 1 Etp. N. P. C. 161. acc. Botham v. (3) Vin. Ab. tit. Evidence, 14, n.Js. Stringier, Peake, N. P. C. tlH j 1 Eap. cited by Ld. Mansfield. 1 Burr. 413.' N.P.C. 164 S.C

* Lord Chancellor Hardwicke established the will of Lord Ailesbury on similar proof, in the year 1748. (See I Burr. 427.) And in Wyndham v. Chetwynd, (1 Burr. 414 ), where the subscribing witnesses were creditors of the testator, as their debts had been paid, they were admitted to prove the will. So in Doe dem. Hindson v. Kersey (4 Burn Ec. Law, 97.) three of the judges were of opinion, that a subscribing witness was restored to his competency, if all his interest hud been released or ejttuigu'uhed it the time of the examination. Lee C. J. iu Anstcy v.

H Dowsrng

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