PART

IV.

* A witness proved to be a co-partner with the defendant is not competent to defeat the action by evidence that the goods were sold to himself, and that the defendant was Competency. merely his servant; for the effect is to discharge himself of a moiety of the costs (h); but he may be rendered competent by a release (i).

* 1650

*But a co-partner with the defendant is a competent witness for the plaintiff in such an action (k); and so is the executor of a deceased partner (1).

parties. If he was the agent of the defendants, there is no reason why this circumstance should not be proved by other evidence.* Thus he has a clear interest without any counterbalance in the event of this action. If it succeeds, the verdict would be evidence for him in an action against himself, to which he is prima facie liable. The remedy which it is supposed he would have against the defendants if he were to be sued on this contract, cannot be thought to render it a matter of indifference to him whether the plaintiff shall succeed in this action, or be driven to sue him as the real purchaser of the goods; he is not in the situation of a broker, for a broker buys and sells in the name of his principal, and has no personal liability to be discharged by the effect of his evidence."

But in the case of Evans v. Williams (7 T. R. 481, n.), Lord Kenyon held that the captain of a ship was competent to prove that the money which the plaintiff sought to recover was borrowed for the use of the defendant's ship, and not for his own use; and that as the owners would have a remedy over against him, he stood indifferent. And see Rocher v. Busher, 1 Starkie's C. 27.

Where, in an action for fitting up a house, the owner was called by the plaintiff to prove an agreement between the owner and the defendant, that the latter had agreed to execute the work for a certain sum, Lord Kenyon held that he was incompetent (New v. Chidgey, Peake's C. 98). Yet if no such agreement in fact existed, the witness would be liable to the defendant for at least the value of the work. It is true, that it might be more difficult for the defendant than for the plaintiff to recover from him. See Buckland v. Tankard (5 T. R. 578; supra, 301). But the principle of that decision appears to be dubious. See Lord Ellenborough's observations in Birt v. Kershaw (2 East, 461), where he says, "I know of no other case than Buckland v. Tankard which goes on the ground of more or less difficulty in the witness in establishing his interest against one or the other of the parties." [See Vol. II. 301, note (2).]

(h) Goodacre v. Breame, Peake's C. 174; Cheyne v. Koops, 4 Esp. C. 112; Young v. Bairner, 1 Esp. C. 103. To raise the objection, the partnership must either be admitted or proved. Supra, 783. Birt v. Hood, i Esp. C. 20.

(i) Young v. Bairner, 1 Esp. C. 103.

(k) Supra, 783. Robinson v. Hudson, 4 M. & S. 475.

(1) Burton v. Burchall, K. B. Hil. 43 Geo. III. Peake's L. E. 167, 5th edit.

*Yet it seems that an agent is competent to prove his own authority. Supra, 62; Ilderton v. Atkinson, 7 T. R. 480; Paley's Principal and Ageut,

And where it is objected that M. being a partner with the plaintiff ought to have been joined, M. is a competent witness for the plaintiff to negative the partnership (m).

PART

IV.

So a witness for the defendant is competent to prove that Competency. the credit was given to him alone (n).

VENUE (0).

THE omission to prove a local cause of action within the Local action. county is fatal, under the general issue (p). But where there are several facts material to the plaintiff's case, arising in different counties, the plaintiff may lay his venue in either (q).

Where the defendant by cutting a trench in the county of N. causes the plaintiff's lands to be overflowed in the county of W., the venue may be laid in the latter county, * although the statute, under the authority of which the 1651, defendant acted, directs all such actions to be brought and In civil tried in the county where the cause of such action arises (r).

actions.

Where goods are ordered from a vendor in London, by a vendee who resides in the country, the cause of action arises in London, by the delivery to the carrier there (s). Where the plaintiff has undertaken to give material Material evidence in the county where the venue is laid, it is not

(m) Parsons v. Crosby, 5 Esp. C. 199.

(n) Birt v. Hood, 1 Esp. C. 20; supra, 783.

(0) Vide supra, Case, Action on, 357; Justices, 820; Libel, 852; Nuisance, 988; Penal Action, 1125; Perjury, 1140; Trespass, 1435; Use and Occupation, 1511; Usury, 1523; Variance, 1570.

(p) Doulson v. Matthews, 4 T. R. 503. [Yelv. 12. a. note.] But where the defect appears on the record, it is cured after a verdict by the stat. 16 & 17 Car. II. c. 8. Mayor of London v. Cole & others, 7 T. R. 583. [See Robinson v. Mead, 7 Mass. Rep. 353, where judgment was arrested in an action of replevin. Qu.]

(q) Mayor of London, &c. v. Cole, 7 T. R. 583; Bulwer's case, 7 Co. 57; Pope v. Davis, 2 Taunt. 252; 2 Camp. 266; Scott v. Brest, 2 T. R. 238; supra, 1126. [See Yelv. 12. note (2).]

(r) Sutton v. Clarke, 6 Taunt. 29. 1 Marsh. 429.

(8) Copeland v. Lewis, 2 Starkie's C. 33. And therefore, though the goods in such a case ordered in Middlesex, by a defendant living in the Principality of Wales, did not amount to 10., Lord Ellenborough, upon a trial at Westminster, refused to nonsuit the plaintiff, under the Welsh Judicature Act, 13 G. III. c. 51, s. 2. And where goods under 40s. value had been ordered by a vendee in Leicestershire, and delivered to the carrier in London, it was held that an action could not be sustained in the county-court of Leicestershire. Harwood v. Lester. 3 B. & P. 617.

evidence.

PART

IV.

Civil action. Material evidence.

sufficient to prove that the witnesses to the contract reside in that county (t). Nor is it sufficient to give evidence there of collateral matters which are not stated in the declaration (u), as, where the defendant pleaded a tender, and the plaintiff replied and proved a subsequent demand within the county where the trial was had (x).

But it is sufficient to give any evidence in the county which is material to the cause of action; it is not necessary to show that the whole cause of action arose there (y). Where the venue is retained in Middlesex by a plaintiff suing as the assignee of a bankrupt, it is sufficient to pro* 1652 duce the commission there, tested at * Westminster (≈); or for a party who sues on a patent, to prove the enrolment there (a); or to produce a rule of Court, obtained by the defendant, for the payment of money into Court, though subsequently to the plaintiff's undertaking (b).

Where the plaintiff on retaining the venue in A. undertakes to give material evidence in A. or C., proof of the delivery of the goods to a carrier in C., to be delivered to the defendant in B., is sufficient (c).

An undertaking to give material evidence in London, is (it has been held,) satisfied by proving an acknowledgment of the debt in a foreign country (d).

If the plaintiff retain the venue on the usual undertaking, but the plea and issue joined render the evidence irrelevant, he is discharged from the undertaking (e). As, where in an action by the assignee of a bankrupt the defendant gives no notice of disputing the bankruptcy, so that the trading or petitioning creditor's debt (of which he would otherwise have given material evidence in the county), are proved by the depositions (f).

(t) 2 Bl. R. 1031.

(u) Cockerell v. Chamberlayne, 1 Taunt. 518.

(x) Ibid.

(y) Neale v. Neville, and Savory v. Spooner, 6 Taunt. 565. 2 Marsh. 278.

(z) Kensington v. Chantler, 2 M. & S. 36. See Clarke v. Reed, 1 N. R. 310. Proof of issuing the writ in Middlesex is material evidence against the sheriff in an action for an escape. 2 Chitty's R. 418.

(a) Cameron v. Gray, 6 T. R. 363.

(b) Watkins v. Towers, 2 T. R. 275. And see 6 Taunt. 566.

(c) Powell v. Rich, 2 Marsh. 494. 7 Taunt. 178.

(d) Gerard v. De Robeck, 1 H. B. 280. And see M'Clure v.

M Keand, 2 Taunt. 197; sed qu.

(e) 3 Taunt. 86.

(f) Soulsby v. Lea, 3 Taunt. 86. Note, that there is a distinction

The locality of offences, and the consequent necessity of proof in the proper county, have already been adverted to under the appropriate heads (g).

PART IV.

*Where two facts, essential to the commission of a mis-* 1653 demeanor, are done, one in each of two counties, the In criminal venue, ex necessitate, may be laid in either (h).

Although evidence be insufficient which leaves it wholly indifferent, and uncertain whether the offence was or was not committed within the proper county (i), yet presumptive evidence that the offence was committed in the particular county is sufficient. Thus, upon an indictment against Sir Manasseh Lopez, for bribery in the county of D., the bribery was proved; and in order to show that it was committed in that county, rather than in any other, evidence was adduced that the defendant, when at his seat in the county of D., said "A. B." (the party proved to have been bribed) "has been with me;" and the learned Judge (k) left it to the Jury to consider whether his being there at the time, and that being the county in which the vote was to be given, was not sufficient evidence to warrant the presumption by them that the offence was committed in that county (1).

It seems that the crime of conspiracy, in analogy to the case of treason, may be tried in any county in which a distinct overt act of treason has been committed (m).

cases.

Where several conspired on the high seas to fabricate false vouchers to defraud the Crown, and one of the * 1654 conspirators transmitted by the post, to the Commissioners of the Navy in Middlesex, false vouchers in pursuance of that conspiracy, and the innocent holder of one of the

between the cause of action and the right of action. See the observations of Heath, J. in Clarke v. Reed, 1 N. R. 310. It is sufficient to satisfy the plaintiff's undertaking, if he give material evidence of the right of action within the county.

(g) Supra, Forgery, 569. Libel, 852; Penal Action, 1125; Perjury, 1140; Treason, 1430; Usury, 1523. See also Starkie's Crim. Plead. cap. I. Where a felony is committed within 500 yards of the boundary between two counties, the offence may be laid, and the offender tried, in either, by the stat. 59 Geo. III. c. 96, s. 2. (h) Scott v. Brest, 2 T. R. 238. Scurry v. Freeman, 2 B. & P. 381. R. v. Burdett, 4 B. & A. 95.

(i) Supra, 570.

(k) Mr. J. Holroyd.

(1) R. v. Sir Manasseh Lopez, cited by Holroyd, J. 4 B. & A. 141. The Court of K. B. were of opinion that this was prima facie evidence, and the defendant afterwards received judgment.

PART

IV.

In criminal

cases.

* 1655

When illegal.

false vouchers (a bill of exchange) presented it to the Commissioners in Middlesex, it was held that the defendants were properly tried in Middlesex (n).

In the case of The King v. Bowes & others (o), where no proof of actual conspiracy was attempted in Middlesex, but all the defendants were proved to have co-operated in forwarding the criminal purpose in different places and counties, the principle of locality was held to be satisfied by evidence of overt acts committed by some of the conspirators in Middlesex, in furtherance of the common design.

On an indictment for sending a threatening letter, which has been sent by the post, the prisoner may be indicted in the county where the letter was received by the prosecutor (p).

* WAGER.

In general, it seems that a wager is legal, and may be enforced in a court of law q), if it be not an incitement to a breach of the peace (r), or immorality; or affect the feelings or interest of a third person, or expose him to ridicule, or libel him (s); or if it be not against sound po* 1656 licy (t), or the provisions of a statute (u).* Thus, a wager

(n) R. v. Brisac & Scott, 4 East, 164.

(0) Cited by Grose, J. 4 East, 171.

(p) East's P. C. 1120. Where a prisoner was indicted in Middlesex for uttering forged stamps, and the proof was that he lived in Middlesex, and sent the forged stamps by his servant in a parcel to London, that they might be forwarded to Bath, seven of the Judges were of opinion that he was guilty of uttering in Middlesex, but the other five were of a contrary opinion. R. v. Collicott, cited by Bayley, J. 4 B. & A. 154. As to the sending a sealed libel by the post, see R. v. Burdett, 4 B. & A. 95; supra, tit. Libel. And see tit. Forgery.

(q) Good v. Elliott, 3 T. R. 693.

(r) Semble, that a wager between the proprietors of two carriages for the conveyance of passengers for hire, that a given person should go by one of those carriages, and no other, is illegal. Eltham v. Kingsman, 1 B. & A. 683.

(8) As where a wager is laid on the sex of a third person. Dacosta v. Jones, Cowp. 729. 736; Roebuck v. Hammerton, Ibid. 737. (t) [Mount & al. v. Waite, 7 Johns. 434.] Such as a wager as to the probable amount of the public revenue (Atherfold v. Beard, 2 T. R. 610); or hop-duties (Shirley v. Sankey, 2 B. & P. 130); or a wager

(u) A wager on a horse-race for less than 501. is illegal, the stat. 13 Geo. II. c. 19, s. 2, having prohibited such races; so is a wager for