1831. WORRALL 2. JONES, which he would have two sureties responsible for him, instead of being solely liable to his landlord. Cur, adv. vult. TINDAL C. J. In this case of debt on bond, conditioned for the payment of rent and performance of agreements by Edward Jones, one of the Defendants, he, and the Defendant James Jones, suffered judgment by default; the only Defendant who pleaded in bar to the action was William Baker; and the issue raised upon his plea was, whether the tenancy had continued during the time the rent was alleged to have become due. At the trial of this issue, the Plaintiff proposed to call the said Edward Jones as a witness to prove the continuance of the ancient tenancy. No objection could arise on the ground that Edward Jones was interested to procure a verdict for the Plaintiff, who called him; inasmuch as, being the principal debtor, he could not call for contribution from the other Defendants, but must himself be ultimately liable both to the damages and costs recovered in this action. The witness did not himself object to be examined, but an objection was made on the part of William Baker, the Defendant who had pleaded; and the question reserved for our consideration is, whether a Defendant, who has suffered judgment by default, and who consents to be examined, is an admissible witness, where he has no interest in the event of the suit; and the only objection to his admissibility is this, that he is a party upon the record. And upon this question we are of opinion that the evidence was admissible. No case has been cited, nor can any be found, in which a witness has been refused, upon the objection in the abstract, that he was a party to the suit: on the contrary, many have been brought forward, in which parties to the suit, who have suffered judgment by default, have been admitted as witnesses against their own interest; and the only enquiry seems to have been, in a majority of the cases, whether the party called was interested in the event or not and the admission or rejection of the witness has depended on the result of this enquiry. The exclusion on the ground of interest is a known principle of the law of evidence: and so much did Lord Chief Baron Gilbert consider this as the only solid objection against the evidence of a party to the suit, that after laying it down as a general rule, that no man interested in the matter in question can be a witness for himself, he states, that several corollaries may be deduced from this rule; of which he gives as the first," That the plaintiff or defendant cannot be a witness in his own cause; for these are the persons who have a most immediate interest, and it is not to be presumed that a man who complains without cause, or defends without justice, should have honesty enough to confess it." (a) That a party to the record should not be compelled against his consent to become a witness in a court of law, is a rule founded in good sense and sound policy; it forms the point of the decision in the case of The King v. Wooburn (b), and the decision of that case leads to the necessary inference, that if the party consents to be examined, he is then an admissible witness. We think, therefore, where the party to the suit, who has suffered judgment by default, waives the objection and consents to be examined, and is called against his own interest, there is no ground, either on principle or authority, for rejecting him. The present rule, therefore, should be discharged. Rule discharged. (a) See Gilbert's Law of Evidence, 130. 4th edit. 1831. WORRALL V. JONES. 1831. Jan. 31. A new trial deed read in THIS HEWITT V. PIGOTT. HIS was an action against the sheriff of Somerset for a false return of nulla bona to a writ of fi. fa. issued against the goods of Lord Egmont. The defence set up was, that the goods were the property of trustees, in whom they had been vested bona fide for the benefit of creditors under two deeds executed in 1823. One of these deeds was read in evidence at the trial, and the execution of the other was admitted; but it was not given in evidence. A verdict having been found for the Plaintiff, and a rule for a new trial, on the ground of surprise, having been made absolute, Cross Serjt., on the part of the Plaintiff, obtained a rule nisi for an inspection of these deeds, on the ground that when they were produced at the trial, the Plaintiff might have read them, or, at all events, have taken down the language of that which was read by the Defendant; so that the documents must now be considered as equally accessible to both parties. Wilde Serjt. opposed the rule, on the ground that these were the muniments of the Defendant, or of those under whose indemnity he resisted this action; and that a party could not be compelled to exhibit his muniments, unless it could be shewn that he held them, in some sort, as trustee for his opponent. TINDAL C. J. There is a distinction between the two deeds. The first was read, and heard by the Court and and jury; and when the Defendant moved for a new trial, there would have been no injustice in imposing on him, on granting a new trial, the condition of producing that deed for the inspection of the Plaintiff: but the second deed was withdrawn, although the execution of it was admitted. It must be taken, therefore, as one of those muniments of the Defendant which the other party has no right to inspect before trial. Justice will be satisfied by the production of the first deed. PARK J. The first deed must be considered as if it were now in Court; the second, as if the cause had never been tried; and in general a party is not bound to exhibit his muniments to an adversary. The rest of the Court concurring, the rule was made been read in evidence. 1831. HEWITT V. PIGOTT. 1831. Jan. 31. The general issue having been pleaded to an action of assault, and a new trial having been ordered on payment of costs, after a verdict for the PRICE v. SEVERN. THE rule for a new trial in this case having been made absolute on payment of costs, (see ante, p. 316.), the Defendant obtained an order from a Judge at chambers to withdraw the general issue, and plead accord and satisfaction. Adams Serjt. moved to discharge the order, on the ground that it tended to harass a Plaintiff with two trials for one cause of action. It was inexpedient to allow a Defendant to take his chance on a general issue, and if that failed, then to try a special plea. Although a new count was sometimes allowed after verdict, yet it was only to state the same cause of action in a different way; whereas this plea raised an issue which could not have been tried as the record stood at first. Goulburn Serjt. supported the order, on the ground that the new trial having been granted on payment of costs, the Plaintiff was in the same situation as if he were going to trial for the first time. But The Court was clearly of opinion, that the order ought not to have been made. The plea raised an entirely different issue; and if it had been pleaded at first, might have deterred the Plaintiff from proceeding with his action. As to the new trial having been granted on payment of costs, those costs included only the costs of the former trial. The antecedent expenses were still in hazard. Rule discharged. |