*90

ing an acceptance to a bill of exchange, where the banker had paid the bill, but suspecting a forgery, had not debited the person whose name was forged, this person was admitted to give evidence (3).

Upon what principle, it may be asked, is a party, by whom an instrument purports to be made, incompetent to prove it forged? In Watt's case (4), on an information for *the forgery of a deed purporting to be the revocation of a will, it was adjudged by the barons of the exchequer after a conference with the judges of the King's Bench, that no legatee named in the will, nor any other person who is a loser by the deed, or who may receive any advantage from the verdict, can be a witness for the prosecution and a distinction was made between the case of an indictment for a battery, (where, it was admitted, the person beaten may be witness, because he can reap no benefit by the verdict in another suit,) and the cases of forgery, perjury, or usury, in which, it was said, the party aggrieved may have an advantage by the verdict, and therefore, shall not be received as a witness. It is, however, now an established rule, that on a prosecution for perjury (1) the party aggrieved is competent: and, that a person who has borrowed money on an usurious transaction, is also a competent witness for the plaintiff in an action for penalties against the lender (2); for he gains nothing by the event of the suit, nor can he give the judgment in evidence in an action against him for the money lent. The case of forgery, therefore, stands by itself, and is considered an anomaly in the law of evidence. The reason assigned in Watt's case is, that the witness would receive a benefit from the ver dict; and it has been suggested (3), that he is interested

(3) Usher's case, 1 Leach Cr. C. 57.; and see Well's case, Bull. N. P. 289. 2 East P. C. 1000. S. C.; Sponsonby's case, 1 Leach Cr. C.

574.

(4) Watt's case, 3 Salk. 172., more fully reported in Hardr, 331. See 4 Burr. 2254., Where Ld. Mans

field says, that this and other cases of the same kind "were not considered or looked into."

(1) See ante, p. 87. (a). (2) Abraham q. t. v. Bunn, 4 Burr. 2251, Smith v. Prager, T. R. 60. See ante, p. 39. (3) 2 East P. C. 994.

to procure a conviction, on the ground that a conviction would have the effect of inducing a forfeiture, and thus defeat every legal claim or security which the prisoner might have upon the instrument. On the other hand, it may be said, if the party, by whom the instrument purports to be made, were admitted a witness, he would not be allowed afterwards to produce the record of conviction in a civil suit for the purpose of proving the supposed forfeiture, because the parties in the action would not be the same as in the prosecution, but principally, because the conviction must have proceeded partly upon his own testimony. And, if he would be precluded *from using the record of conviction against the prisoner, and might, therefore, be admitted to give evidence on the trial consistently with the general rule; still less reason is there for excluding him in those cases, where the instrument purports to be made for the benefit of a third person, or where it has since become a third person's property, in either of which cases it would not be liable to forfeiture. With regard to any probable advantage which the witness may be supposed to receive from a conviction, (whether by the practice of impounding forged instruments, or by the prisoner's being disabled from giving evidence in any future suit, or from the great probability of his failing in an action in consequence of the discredit which a conviction must throw upon the instrument,) these are circumstances which a jury would be directed to consider as forming a strong bias on the witness's mind, but which cannot render him incompetent (a).

(a) The rule that a party by whom an instrument purports to be made, is incompetent to prove it forged, has not generally been acquiesced in, in this country. In Massachusetts and Pennsylvania, a contrary doctrine has been established. Commonwealth v. Hutchinson, 1 Mass. Rep. 7. Commonwealth v. Snell, 3 Mass. Rep. 82. Respublica v. Keating, 1 Dall. 110. Respublica v. Ross, 2 Dall. 239. Mr. Day considers the law in Connecticut as unsettled on this point, 2 New Rep. Day's Ed. 96. n. (1). The English rule was adopted by the Supreme Court of the state of New-York in

* 91

SECT. VII.

Of certain Exceptions to the general Rule on the Subject of Interest.

It has been before stated as a general rule, that all persons, who gain or lose directly by the event of a cause, are incompetent to give evidence. There are, however, several exceptions to this general rule: some, by act of parliament, as, where informers and the inhabitants of parishes or other districts are admitted; others from necessity or a principle of public policy, as, where evidence is

a case in 1794 on which Ch. J. Kent makes the following remarks: "The grounds or reasons of that decision are not before the public, and we, therefore, do not know them. It is probable that the Court assumed the English rule, as they found it then existing. But since that time the question of interest in a witness has been investigated and defined with more precision, both in England and in this state. The rule now, in all such cases, and I believe I may say in almost all criminal cases is, that the witness is to be received, if he be not interested in the event of the suit, so that the verdict could be given in evidence in an action in which he was a party. The interest which the witness may have in the question put, is no longer the test. That degree of interest goes only to the credit of the witness. The exclusion of the witness in the case of forgery has, therefore, now become an anomaly in the law of evidence, for it is certain, that the conviction of the party charged with forging a check, cannot be given in evidence in a subsequent civil suit on the check; and as the reason of the old rule has ceased, by a sounder definition of the question of interest, and as it is not now applied to other criminal cases, it would seem to be fit and proper, that the rule itself should no longer be applied to the case of forgery. But the present case does not turn upon the validity of that rule, and therefore the court do not now interfere with it." The People v. Howell, 4 Johns. Rep. 296. 302, 303. In the case last cited, a check had been forged in the name of Butler, on the Mer

received from persons who are entitled to rewards on convictions, or from agents, factors, or servants. Objections on the ground of interest proceed upon the supposition of too great a bias in the mind of the witness, and the public utility of rejecting partial testimony. The presumption of bias may be taken off, by showing, that the witness has as great or greater interest the other way, or that he has given

it

up; and the presumption of public utility may be answered, by showing, *that it would be very inconvenient, under the particular circumstances, not to receive such testimony (1).

First, as to the evidence of informers:

* 92

By the common law, informers, who are entitled under Informere. penal statutes to part of a penalty (a), are not competent witnesses (2). But by the particular provisions or policy

(1) By Lord Mansfield. 1 Burr. Stone, 2 Lord Raym. 1545. R. v. Blaney, Andr. 240. 3 Burr. 1473. (2) R. v. Tilly, 1 Stra. 315. R. v. 4 East 181.

422.

chant's Bank, and was sent by one Cooper to his agent at New-
York, who received the money at the bank and remitted it to Coop-
er: the check was afterwards discovered to be a forgery, and the
bank got possession of the money before it reached the hands of
Cooper: on an indictment for the forgery, Butler was held to be a
competent witness to prove the forgery, he having been released
by the bank, and not being liable to Cooper for the money, even
if the check were genuine, the bank having acted without his di-
rection. Vide post, 98. In Massachusetts the person whose name
is alleged to be forged, cannot be a witness unless the instrument is
produced at the trial. Commonwealth v. Hutchinson, ubi
sup.. But
the production of it may be dispensed with, if it has been secreted
to protect the offender. Commonwealth v. Snell, ubi sup.

(a) S. P. Commonwealth v. Frost, 5 Mass. Rep. 57, 58. Although the informer suing in his own name release his interest, he cannot be a witness, for he will still be liable for the costs. Rapp v. Le Blanc et al. 1 Dall. 68. On a summary conviction, where the informer receives part of the penalty, he cannot be a witness; for which reason it is requisite to name the witness in the conviction, that it may appear that he is not the same person with the informer. 1 Wms. Saund. 262. c. ` New-York Just. 83.

*93

of several acts of parliament, they may be admitted. Where a statute can receive no execution, unless a party interested be a witness, there he must be allowed, says Ch. B. Gilbert; for the statute must not be rendered ineffectual by the impossibility of proof (3). Thus, by stat. 2 G. 2. c. 24. s. 8. against bribery at elections, the legislature in giving an indemnity and discharge to any person offending against the act, who shall discover any other offender se that he may be committed, must also have intended that he should be competent to give evidence at the trial; and, therefore, in an action for penalties he has been admitted (4). So, in a prosecution on stat. 21 G. 3. c. 37. against exporting machinery, the informer is competent (5). So, on a prosecution for penalties under stat. 9 Ann. c. 14. s. 5., the loser of money at cards may prove his loss (6). And, on a prosecution under stat. 23 G. 2. c. 13. s. 1. for seducing artificers to go out of the kingdom, the prosecutor is a competent witness, although entitled to a moiety of the penalty (7). There is no express provision in either of the three acts of parliament last mentioned, for admitting the evidence of the party interested. In the act of the 32 G. 3. c. 56. for preventing counterfeited certificates of servants' characters, there is a clause (8) to that effect; and a similar *provision is made by the act which regulates hackney coaches, stat. 33 G. 3. c. 75. s. 17 (a).

Gilb. Ev. 114.

Bush v. Ralling, Say. 289. Mead v. Robinson, Willes 425. Heward v. Shipley, 4 East 182.

(5) R. v. Teasdale, 3 Esp. N. P. C. 68.

(6) R. v. Luckup, Willes 425. (c). (7) R. v. Johnson, Willes Rep. 425. n. (c). (8) Sect. 7.

(a) Where the court may, at their discretion, inflict either a corporal punishment or impose a fine, the informer is a competent witness, as it is only in case a fine is imposed, that the witness can expect to derive any benefit, and that is uncertain as depending upon the judgment of the court. Rex v. Cole, 1 Esp. 169. S. C. Peake 217. Contra. Rex v. Blackman, 1 Esp. 95.