THIS is the leading case on that important subject-the incompetency of a witness on the ground of interest-important as the law now stands, for were reason and sound policy to be adopted as the lawgivers on this subject, interest would probably be held to be an objection fit to be addressed in every case to the credit, not to the competency.

As it is, the courts ever since Bent v. Baker, have evinced a laudable desire to let in truth wherever precedent will admit it, by holding objections to apply rather to the credit than the competency. Bent v. Baker, was followed by Smith v. Prager, 7 T. R. 60; and by the celebrated decision in Jordaine v. Lashbrooke, 7 T. R. 601, which is remarkable because, while it recognised the general principles laid down in Bent v. Baker, it afforded Lord Kenyon an opportunity of correcting the report of that case, as to certain expressions there attributed to him; that was an action against the defendants, as acceptors of the following bill of exchange :

‘Hamburgh, 30th December, 1796, for 1001. At three usances, pay this my first Bill of Exchange, to the Order of Messrs. J. Thynne and Co., 1001. sterling value in account, and place it to account of G. W., as advised by David Heur Meyer.

"To Messrs. T. Lashbrooke and Sons, London."

Accepted by the defendants, and indorsed by Messrs. Thynne and Co. the payees.

At the trial, Thynne was called by the defendants to prove, that although dated Hamburgh, the bill was drawn in London, so that it was not receivable in evidence for want of a stamp. The witness was objected to on the ground of incompetency, but received by the L. C. J. Kenyon, and a rule for a new trial on that ground discharged." The proposition," said Lord Kenyon, "attempted to be established for the plaintiffs is, that for some technical reason, or for some reason of policy, a court of justice must shut its ears, and not suffer facts to be laid before them by a witness who is not infamous in character, and who who has no interest in the cause. If the law be so, there is some novelty in it. I have always understood the law to be that where a witness is infamous, and his

record of conviction is produced, or where he is interested in the event of the cause, he cannot be received; but to carry the rule beyond that, would be extending it further than policy, morality, or the interest of the subject require. The rule contended for by the plaintiff is this, that 'however infamously you the defendant may have been used, whatever may be the rights of other persons, if I, the plaintiff, the party to the fraud, can get on the instrument the name of the person who may be the only witness to the transaction, I will stand entrenched within the forms of law, and impose silence on that only witness, though he be a person of unimpeachable character, and not interested in the cause.' But I cannot conceive on what ground such a proposition can be established. It is contradicted by every hour's experience. It would tend to shew, that a party to an instrument shall not be permitted to contest its validity in a court of law, not only by his own evidence, but by any evidence whatever. But in actions brought on bills of exchange and notes of hand, it is permitted to the defendant to shew that the bill, or note, was given on an usurious or gaming consideration; that is proved by every day's experience: then the general proposition is not true. But does the policy of allowing such a defence to be made apply to this case as strongly as to those? Precisely the same. And not finding any case prior to Walton v. Shelley, 1 T. R. 296, in which such a defence was excluded, I cannot bring my mind to assent to the authority of that case. This is one of the most important questions that can be discussed. On the rules of evidence depend the facts of every question that can be discussed, and, therefore, it is of the utmost importance to preserve those rules. It has been argued, that the defendant is estopped in this case; but estoppels are odious, and ought not to be extended further than the law has already carried them. The word estoppel does not apply to such a case as the present. When the drawee accepts a bill, he admits it to have been signed by the person by whom it professes to have been made; but he does not thereby admit that the holder of the bill is in a condition to

enforce payment of it.

Most of the cases cited I admit to be law. That of Bent v. Baker, is of great authority. It came here on a writ of error from the Common Pleas; and though a writ of error was afterwards brought to reverse our judgment, it was at length abandoned. But I wish to correct an expression imputed to me in the report of that case, 'that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his testimony.' Because having frequently weighed this subject in my mind, and having not only entertained a contrary opinion, but having also always acted on that opinion at nisi prius, I think I never could have used the expression imputed to me. The case of testamentary witnesses cannot, in my opinion, be distinguished from the present; and if not, there is abundant authority in support of my opinion. Sir J. Jekyll always permitted the subscribing witnesses to a will to give evidence to impeach the will, and the same thing was also done in Lowe v. Joliffe, 1 Bl. 365."

Having thus got rid of the exception to the general rule, which would primâ facie appear to have been recognised in Bent v. Baker; and having shewn that a person who has signed an instrument, has not necessarily such an interest as will prevent him from being examined for the purpose of impeaching its validity, let us proceed to the main doctrine established in that case, viz., that a witness who has no interest in the event of the cause shall not be rejected as incompetent.

The strongest probability of bias, if it do not amount to an actual interest, will not disqualify. If two persons are indicted for perjury, for swearing to the same fact, it is highly probable, indeed morally certain, that each will desire the acquittal of the other. Yet they are competent witnesses for one another. Bath v. Montague, Fort. 247; 2 Holt, N. P. C. 280; Rex v. Gray, S. N. P. 8th ed. 1177, citing 2 Rolle's Ab. 685; pl. 3 & 2 Hale's P. C. 280. So where a woman was produced as a witness against a prisoner whose conviction she expected would obtain her husband a pardon, her wishes must have been been strongly on the side on which she was called, but she was nevertheless

Rudd's case,

1

held to be competent. Leach, 151. So too a witness has been held competent who believed himself under an obligation in honour to indemnify the party for whom he was called. Pederson v. Stoffles, 1 Campb. 145. It has been doubted whether a witness who believes himself legally interested, although not so in fact, be not incompetent, Trelawney v. Thomas, 1 H. Bl. 307; and Ph. on Ev. 7th ed. 54; but it is difficult to assign any ground for such a distinction. In short, to disqualify a witness, there must be not merely hope, not merely expectation, but an interest in the event of the suit, and that interest must be direct. If it be remote, merely possible, it will not disqualify. Collins v. Gwynne, 9 Bingh. 559; Nowell v. Davies, 5 B. & Ad. 368; Carter v. Pearce, 1 T. R. 163; or if it be compensated by an equal interest on the other side. Ilderton v. Atkinson, 7 T. R. 480; Shuttleworth v. Stephens, 1 Campb. 408; York v. Blott, 5 M. & S. 71.

It is not intended in this note to collect the numerous cases in which the question discussed has been that of competency and incompetency on the ground of interest. They will be found diligently collected and ably commented upon in the well-known treatises of Mr. Phillips and Mr. Starkie. The cases in which witnesses have been disqualified by interest, may perhaps be divided into two classes, viz.:

1. Cases in which the verdict may be used in evidence for or against the wit

ness.

2. Cases in which it will have an immediate operation on his interests otherwise than by becoming evidence for or against him.

Under the former head may be placed the cases of a servant, or agent, who are not competent, in an action by a third person against their principal, to disprove their own negligence, by which the injury, which is the subject of the action, is stated to have been occasioned. Green v. New Riv. Co., 4 T. R. 589; Martin v. Henricksen, 2 L. Raym. 1007; Miller v. Falconer, 1 Campb. 251, 15 East. 474; Rotheroe v. Elton, Peake 81; Gevers v. Mainwaring, Holt, 139. The interest of the witness in these cases consists in the circumstance, that in an action brought by his employer

against him, the verdict in the suit in which he is a witness, will be good evidence of the amount of damage occasioned by his negligence. So in the case put by Lord Kenyon in the text, where a right of common is claimed by custom, one who claims under the same custom cannot be a witness to support the right, because the verdict might be evidence in his own favour. See too Anscomb v. Shore, 1 Taunt. 261; Rhodes v. Ainsworth, 1 B. & A. 87; Company of Carpenters v. Hayward, 1 Dougl. 373.

But there are other cases in which the witness has a direct interest in the erent of the suit other than that occasioned by the verdict being evidence for or against him; thus a witness was not permitted to prove, in an action of ejectment, that he was the real tenant in possession, for the purpose of defeating the plaintiff; since, though the verdict might not be evidence against him, the judgment and execution would turn him out of possession immediately. Doe v. Wilde, 3 Taunt. 183. So, the residuary legatee would not be a good witness for the executor, for the plaintiff's recovery would diminish his residue. Baker v. Tyrwhitt, 4 Campb. 27. So, the remainderman in fee is not a good witness in an ejectment brought by the tenant in tail to avoid a recovery, for his remainder will vest, if the tenant in tail should recover. Doe d. Lord Teynham v. Tyler, 6 Bingh. 394. So, a witness is incompetent who has a power of attorney to receive the sum recovered, and intends to pay himself thereout a debt due to him from the plaintiff. Powell v. Gordon, 2 Esp. 735.

In some of these cases the competency of the witness might have been restored by a release from the party calling him, or from himself; thus the agent might be rendered competent by a release from his principal. So too a bankrupt, who is, generally speaking, not a competent witness to increase the estate on account of his interest in the allowance and surplus, see Butler v. Cooke, Cowp. 70; B. N. P. 43; might render himself competent by releasing his assignees. Nares v. Saxby, 2 T. R. 497; Carlisle v. Eady, 1 C. & P. 234; B. N. P. 43. In short, whenever there was any person whose release would

destroy the interest by which alone the witness was incapacitated, a release from that person, by destroying his interest, restored his competency. It was partly to dispense with the trouble of executing a formal deed in such cases, partly to obviate the danger that no release might be in readiness, that St. 3 & 4 W. 4, c. 42, ss. 26, 27, enacted, "That if any witness shall be objected to as incompetent, on the ground that the verdict, or judgment, in the action in which it shall be proposed to examine him, would be admissible in evidence for or against him, such witness shall nevertheless be examined; but in that case, a verdict, or judgment, in that action, in favour of the party on whose behalf he shall have been examined, shall not be admissible in evidence for him, or any one claiming under him; nor shall a verdict, or judgment, against the party on whose behalf he shall have been examined, be admissible in evidence against him or any one claiming

under him."

"Sec. 27. And be it further enacted, that the name of every witness objected to as incompetent, on the ground that such verdict, or judgment, would be admissible in evidence for or against him, shall, at the trial, be indorsed on the record, or document, on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement, or entry, shall be sufficient evidence that such witness was examined, in any subsequent proceeding in which the verdict, or judgment, shall be offered in evidence."

A good many decisions took place at Nisi Prius on this statute, shortly after its enactment; the facts of which it would be useless to state at length, since they cannot be reconciled, and consequently left the interpretation of the act in dubio. See Burgess v. Cuthell, 1 M. & Rob. 315, and 6 C. & P. 282; Mitchell v. Hunt, 6 C. & P. 351; Harrington v. Caswall, ibid. ; Pickles v. Hollings, 1 M. & Rob. 468; Creevy v. Bowman, 1 M. & Rob. 496; Hodson v. Marshall, 7 C. & P. 16; Harding v. Cobley, 6 C. & P. 664, At last, in

construction of the statute came before

the Court of Exchequer, on a motion for a new trial, on the ground that a witness had been improperly rejected on the ground of incompetency. The witness was a servant who drove his master's carriage, for the negligent driving of which the action was brought. It was contended, that the act did not apply to such cases as that under discussion, in which a release would operate to produce competency. The court held, that the witness was rendered competent by the statute. "The effect of the clause," said Parke, B., "is to make the witness competent, when the only interest is, that the verdict may be used for or against the witness. In this case there is no interest, except that the verdict might be used against him in an action by his master, to shew the amount of the damages recovered. I am clearly of opinion, that the effect of the act is to take away the objection to the admissibility of the witness in cases of this sort." And Alderson, B., said, "He had always understood the effect of the act to be, to supersede the necessity and save the expense of a release."

We must not, however, be too hasty in concluding that this act will make the witness competent, wherever a release would formerly have rendered him so. In the instance of a servant called to disprove his own negligence; if he in fact was guilty of the negligence, he is liable to an action independently of the verdict for the breach of duty to his master which he has committed. The verdict indeed ascertains what the damages in that action ought to be, and will be evidence against him for that purpose; but it does not give his master any new ground of suit against him. But there are other cases in which the witness's incompetency has been heretofore removed by a release, in which the effect of the verdict would have been to give a new right of action against the witness, which, without the verdict, could not have existed. Such is the case in which an accommodationacceptor calls the person for whose accommodation he accepted; the verdict in that case will not merely be evidence

new cause of action against him, which did not before exist; for it will give the acceptor a right to sue him for indemnity. In such a case, the witness is not disqualified merely because the verdict "would be admissible in evidence against him," but because the verdict creates, and is, a new substantive ground of action against him. Still, since the verdict would be the only evidence of the creation of that new cause of action; and, since to render it inadmissible as evidence against the witness, would, in fact, be to prohibit such action being brought, the courts would now probably hold, notwithstanding Burgess v. Cuthill, 6 C. & P. 282, 1 M. & Rob. 315, that the statute applies to such cases also. In the case of Bowman v. Willis, 3 Bingh. N. C. 669, the effect of the statute was considered in the Common Pleas. In that case the defendant, who was the legatee of W.'s horses, had sold several of them, and among others, one for which he received 1027., and which the plaintiff asserted was never the property of W., but had been leut by him, the plaintiff, to W. on trial, and had not been approved or paid for. In order to prove this case, he called the residuary legatee of W., who was objected to upon the ground, that if the plaintiff failed in this action, he would bring an action for the price of the horse, which had not yet been paid, and then that price must be paid out of the residue of W.'s estate, and would thus come out of the pocket of the witness. But the court held, that he was competent, and the L. C. J., said, "There is no immediate benefit resulting to the witness, from the termination of the suit one way or the other. It is only on the supposition that a subsequent action may be brought for the price, and that his defence would be the recovery in this action, that his interest arises. It seems to me to be precisely the case contemplated by the late statute, which renders a witness competent, notwithstanding the effect of the verdict and judgment."

It is however apprehended, that, in such cases as those belonging to the second of the two classes above specified at page 51, namely, in which the interest of the witness