from the plaintiff for the defendant's use; for he stood indifferent between the parties, and, whichever way the ver dict might go, he was equally answerable (2) (c). 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 *plaintiff 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) (a). 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 amount 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

(2) Evans v. Williams, 7 T. R. 481. n. (c). Ilderton v. Atkinson, 7 T. R. 480. Shuttleworth v. Stephens, 1 Campb. 407.

(1) Bell v. Harwood, 3 T. R. 308. See Serle v. Serle, 2 Roll. Abr. 685., tit. Trial, (G,) cited Gilb. Ev. 109. (2) Ridley v. Taylor, 13 East 175.

(c) So, a master of a vessel, who had drawn a bill on his owners for the necessary expenditures of the vessel, is a competent witness in an action by the payee against the drawer for he is alike liable to both parties. Millward v. Hallett, 2 Caines' Rep. 77.

(a) In an action of trover by a sheriff who levied on goods without notice of any rent being in arrear, against the landlord who had distrained the same goods, the tenant was held to be a competent witness. Alexander v. Mahon, 11 Johns. Rep. 185.

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recovered, he would have had his remedy over against his joint partner.

In the case of Ilderton v. Atkinson (3), where the question was in an action of assumpsit, whether A. B., who had received 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; and though it was objected, that he had a stronger interest to give evidence in favour of the defendant than on the side of the plaintiff, (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*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 Birt 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 against 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 (2) 4 Taunt. 464.

(3) 7 T. R. 480.
(1) 2 East 458.

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 incurred such a liability, he has an immediate and direct interest in the event of the suit. In the case of Buckland v. 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 (a) to *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

(3) T. R. 579.

(a) In an action of ejectment in which the defendant claimed under one Barber, Jones was offered as a witness: it appeared that Jones held a promissory note given by the defendant to Barber, to secure a part of the purchase money of the land, which note had been assigned by Barber to Jones, and which the defendant had paid under an agreement, that in case the plaintiff should recover in the present action, Jones should refund the mo ney and resort to Barber, who was a man of property, for payment: the witness was held incompetent, on the ground that if judgment should be rendered against the defendant, the witness would be obliged immediately to refund the money, while his demand for a similar amount against Barber, might long be postponed, be sought after with great expense, and eventually fail, through Barber's insolvency: the obligation to refund, in the event of a judgment against the defendant, would be certain; but the reimbursement by Barber, at best, would be contingent. Owen v. Mann, 2 Day 399.

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strong influence on the witness, but not as forming any solid objection to his competency.

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 (a). 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 (b). 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

(a) A witness is competent when called on to testify, by a party against whom he is interested; or, in other words, a wit ness is competent when swearing against his own interest, ante 34. Birt v. Wood, 1 Esp. 20. Jackson d. Youngs and others v. Vredenburgh, 1 Johns. Rep. 159. Wells v. Tucker, 3 Binney 366. Mun. 49. And where a witness is produced by the party against whom he is interested, the other party may cross-examine him as to all matters pertinent to the issue on trial. Webster v. Lee, 5 Mass. Rep. 334.

Munay v. Wilson, 1 Binney 531.
Braxton's Admx. v. Hilyard, 2

(b) See an application of this rule, ante 53, n. (a). But a witness competent to answer any questions ought not to be rejected generally. 3 Term Rep. 35, 36; thus, if a suit be brought for distinct matters of account or causes of action, the witness may testify as to those in which he is not interested. Smith and others v. Currington and others, 4 Cranch 62. A contrary doctrine, however, has been expressly laid down by the Supreme Court of the state of New-York. Gage v. Stewart, 4 Johns. Rep. 293.

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 (c).

*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 (1), 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 (a). The party, (1) 1 Vern. 230. 1 P. Wms. 596. Gilb. Ev. 116.

(c) Vide ante 48.

(a) 1 Day 106. Haswell v. Bussing, 10 Johns. Rep. 128. Sharp v. Thatcher, 2 Dall. 77. So, it has been held, that one joint appellee cannot be received as a witness for his co-appeilees, either upon his releasing to them his interest in the subject in controversy, or upon his or their depositing with the clerk a sum of money sufficient to cover the costs. Cogbill v. Cogbill and others, 2 Hen. and Mun. 467. Parties, however, have been permitted to testify, in some of the states, to facts which were necessary to be shown in order to authorize the admission of secondary or inferior evidence: as to prove the death of a subscribing witness, in order to let in evidence of the handwriting. Douglass's Lessee v. Sanderson, 2 Dall. 116. Or that he could not be found on inquiry. Chase and others v. Lincoln, 3 Mass. Rep. 236. So, to prove the loss or destruction of a deed, previous to giving a copy in evidence. Blanton v. Miller, 1 Hayw. 4. Seekright d. Wright and wife v. Bogan, Id. 178. n. Park v.

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