of counties, Secondly, On an indictment against private persons or Inhabitants corporate bodies for not repairing a public bridge or the parishes, &c. highway adjoining, 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 be 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 against 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 (5). It has been lately provided by stat. 54 G. 3. c. 170. s. 9., that no inhabitant of any district, parish, &c., who is *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 (1) Per Cur. in R. v. Carpenter, 2 Show. 47. (2) Per Cur. in R. v. Carpenter, 2 Show. 47. 2 Hal. P. C. 280. R. v. Kirdford, 2 East 561. Stat. 13 G. 3. c. 78. s. 69. (5) R. v. Davis, 6 T. R. 177. * 94 R Persons entitled to re wards. Agents, &c. 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. Thirdly, persons entitled to rewards on the conviction of offenders, whether the rewards are given by act of parliament (a), 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). 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 (b). Thus, a factor may prove a sale, though he is to receive a poundage on its amount (2)(c) 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 tenant's admission, the steward of the manor was (1) Per Cur. in Rudd's case, (2) Dixon v. Cooper, 3 Wils. 40. 1 Atk. 248. (3) Benjamin v. Porteus, 2 H. Bl. 590. R. v. Phipps, Bull. N. P. 289. (4) 2 H. Black. 591. (a) S. P. State v. Coulter, 1 Hayw. 3. (b) Vide Mackay v. Rhinelander and others, 1 Johns. Cas. 408. Jones v. Hake, 2 Johns. Cas. 60. Burlingham v. Deyer, 2 Johns. Rep. 189. Ruan v. Gardner, 2 Condy's Marsh. 706. b. (c) But a collector of taxes who was to receive a commission on the amount of cash paid into the treasury, was held an incompetent witness; this not being a case to which the rule arising from necessity and the usage of trade extended. Treasurer of the State 7. Nall, Tayl. 5 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, *if the tenant were not admitted (1). 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) (a). But where a person has entered into a contract for the purchase of goods in his own 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 verdict may be, he is clearly a competent witness on the general principle (5) (b). 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 com (1) Champian v. Atkinson, 3 Keb. 90. Rep. temp. Hard. 360. See R. v. Phipps and Archer, ante, p. 59. (2) Per Holt, C. J. in Theobald y. Tregott, 11 Mod. 262. Bull. N. P. 289. 4 T. R. 589, 590. Matthews v. Haydon, 2 Esp. N. P. C. 509. Spencer v. Golding, Peake N. P. C. 129, Adams v. Davis, 3 Esp. (3) Martin v. Howel, 1 Str. 647. (5) See ante, p. 53. (a) S. P. Cortes v. Billings, 1 Johns. Cas. 270. vide 1 Hen. § Mun. 540. (b) An agent or broker, authorized to purchase goods on certain terms, is a competent witness in a suit between the vendor and vendee; for if he had exceeded his authority, he would at all events be liable to the losing party, and if he had not, he would be liable to neither. Bailey & Bogert v. Ogden, 3 Johns. Rep. 399. *95 * 96 mon usage of business (6)." This sufficiently explains the principle, and at the same time shows the restrictions to which the practice is subject (c). 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 the servant in illegal insurances, he was considered incompetent without a release (1). And in an action against the defendant for the 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 (6) Bull. N. P. 289. (1) Corking v. Jarrard, 1 Campb. 37. In Clarke v. Shee, Cowp. 199, which was a similar case, a release was given. See anonymous case, 1 Salk. 289.; Bull. N. P. 39. 289. S. C.; and anonymous case, Bull. N. P. 290. These were actions by a master to recover property embezzled by his servant, and the servant was admitted a witness to prove delivery to the defendant; but it does not appear whether the plaintiff gave a release. (2) Green v. New Riv. Comp. 4 T. R. 589. 3 Camp. 516. 523. Bird v. Thompson, 1 Esp. N. P. C. 339. Miller v. Falconer, 1 Campb. 251. 6 Esp. N. P. C. 73. (c) The master of a vessel is a competent witness in an action on a policy of insurance, although interested to fix the loss on the underwriter to avoid his own responsibility by the bill of lading. Fitzsimmons, 2 Condy's Marsh. 706. b. Vide Wallace v. Child & Styles, 1 Dall. 7. Hicks v. In an action of assumpsit on a promissory note, made on the coast of Africa to pay a certain number of slaves, &c. on demand, it was held that the letters of the agent of the plaintiff, since deceased, were admissible to prove the demand made in Africa; as the agent was sent to make the demand, in a country where there was no regular civil government, and not having any magistrates or notaries authorized to take and certify affidavits, or regularly to authenticate testimony in any manner: and as no cause was then pending or expected, it could not be required that he should take with him a dedimus potestatem. Greenwood v. Curtis, 6 Mass. Rep. 358. the witness, as to the quantum of damages, the servant is directly interested to defeat the action, and does not come within the exception above specified (a). SECT. VIII. Of the means by which the Competency of an interested Witbe restored. . ness may 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 (b). 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, (a) An agent may testify without producing the power under which he acts. Renay. Crocken, 1 Caines' Rep. 167. It has been held that an ant was not a competent witness to prove that a written authority had been given Him, but that the contents of the writing must be proved by other witnesses. Nicholson's Lessee v. Mifflin, 2 Dall. 246. He is however competent to give evidence of oral instructions. Livingston et al. v. Swanwick, Ibid. 300. In a case in Connecticut, a witness acting in pursuance written orders, as the agent of the person under whom the defendant claimed, was not allowed on behalf of the defendant, to give evidence of the contents of those orders, without producing them. Stewart v. Richards, 1 Day's Esp. 406. n. (1): for the written appointment is the best evidence, and must be produced, unless proved to be lost or destroyed. The Proprietors of the Kennebeck Purchase v. Call, 1 Mass. Rep. 483. of (b) Proof of a declaration by the witness previous to the trial, that he was interested, or incompetent, is not sufficient to exclude him. Commonwealth v. Waite, 5 Mass. Rep. 261. But where it is proved that the party by whom the witness is introduced, has acknowledged him so interested, the witness ought not to be sworn. Pierce v. Chase, 8 Mass. Rep. 487. |