re-enabled to be a witness; for the burning in the hand operae s as a statute pardon. Sect. 105. But as a person convicted of petit larceny, not Mackender's being liable to be burned in the hand, was disqualified from Case, 2 Wils. being a witness, although he had suffered the punishment inflicted 66 on him, it is enacted by 31 Geo. 3. c. 35. " that a conviction of "petty larceny will not incapacitate a person from being a "witness." Sect. 106. It seems (e) agreed, that the king's pardon of treason (e) Sup. c. 37. or felony after a conviction or attainder, restores the party to his s. 48, 49, 50. credit. + Sect. 107. And it is decided, that the pardon of a person Reiley's Case, convicted on the statute of 31 Geo. 2. c. 10. for taking a false Cases Crown Law, 360. oath to obtain probate of a seaman's will, restores the convict to his competency; for that a pardon not only clears the offence itself, but all disabilities incident to it. (ƒ) 2 Salkeld, 514.689. 47. Sect. 108. Also it was holden by the late Chief Justice (ƒ) Holt, that the king's pardon will remove a man's disability to be a witness in all cases whatsoever, wherein it is only the consequence of the conviction or judgment against him, and not an express part of the judgment, as it is in conspiracy (g) at the suit s. 9. of the king, and in perjury on the statute. But this matter (h) a convict of con seems not to be fully settled. (g) B. 1. c. 72. Hale thinks that spiracy, perjury or forgery, may Gulley's Case, Law, 94. be a good witness, if pardoned. 1 Hale, 306. (h) Vide sup. c. 37. s. 52. Sect. 109. But it is settled, that where a convict has been pardoned, and afterwards produced as a witness and objected to on the ground of his having been convicted, he must produce his pardon under the great seal; for that letters under the king's sign manual are not sufficient, being rather evidence of the king's intention to pardon, than a pardon itself. As to the THIRTEENTH POINT, viz. How far an interested person may be a witness. Sect. 110. FIRST, It seems to be an uncontested rule, in all cases whatsoever, that if a person is either to be a gainer or loser by the event of the cause, whether such advantage be direct and immediate, or consequential only, he is incompetent to be witness. Co. Lit. 6. a 1 Sid. 237. 1 Keb. 836. 1 Hale, 302. a Hale, 279. Loft. Gilb. 221. 225. 2 Atk. 229. Peer. Wms. 239. + Sect. 111. Therefore a person who is bail for the defendant cannot be a witness for him without consent (i); for as he would become immediately liable on a verdict being given against the principal, he is directly and immediately interested (k). (i) 3 St. Tr.253. (k) Per Buller, Justice, 1 Term Rep. 164. + Sect. 112. So also where an infant sues, his prochein ami Hopkins v. cannot be a witness; for he is liable to the costs, and therefore Neale, 2 Stra. immediately interested in the event of the cause. 1026. + Sect. 113. So also in an information on a penal statute, Rex v. Tilly, where the informer is intitled to the whole or to part of the penalty, 1 Stra. 316. the informer is an incompetent witness, for he is directly interested in the event. + Sect. Onsl. N. P. 257. Sect. 114. And for this reason a party injured cannot be a witness on an indictment for perjury on the statute of 5 Eliz. c. 9. because the statute gives him ten pounds. 66 Sect. 115. But by 27 Geo. 3. c. 29. “The inhabitants of any "place or parish are good witnesses, in actions on penal statutes, notwithstanding the penalty be given to the poor, or otherwise "for the benefit of the parish or place, provided the penalty does "not exceed twenty pounds." + Sect. 116. By 1 Ann. c. 18. " Inhabitants of a county may "be examined as witnesses on indictments for not repairing county bridges." + Sect. 117. By 8 Geo. 2. c. 16. s. 15. "In actions brought on "the statute of Winton, persons inhabiting within the hundred 66 may be witnesses." By 54 Geo. 3. c. 170. s. 9. The rated inhabitants of a parish are all competent witnesses in parish appeals. + Sect. 118. So also all those persons who by several acts of Espinass. N. P. parliament are intitled to rewards on the conviction of offenders are competent witnesses, notwithstanding the rewards. 713. Rex v. Whitney, + Sect. 119. SECONDLY, It seems also to be agreed, that a person who is only consequentially interested in the event of a cause, is an incompetent witness. Sect. 120. It was formerly ruled, that he who by a slight had been imposed upon to set his hand to a note for more money than he intended, was no good witness on an information for the same; because the conviction might be a means to avoid the note, by being made use of by the party when sued upon it, as a motive to influence the jury, which cannot well be prevented, though in law it be no evidence. † And some other cases of the same sort have been decided on the like principle (a). But it seems now to be settled, that to destroy the competency of a witness he must have an interest, and that where there is influence only, (b) 4 Bur.2255. it shall only go to his credit (b). (a) Rex v. Nunez, 2 Stra 1043. Rex v. Ellis, 2 Stra. 1104. Corporation of Rex v. Black man, Sitt. Hilary Espinass. Nisi Term, 34 Geo.3. Prius, 95. + Sect. 121. As where an action was brought against a person for following a trade in a corporation without being a freeman, contrary to the custom of the corporation; another person who had carried on a trade under the like circumstances could not be admitted to give that fact in evidence in order to disprove the custom, because, having been guilty of a breach of it, he would, in consequence of the custom being disproved, have exonerated himself from the liability of an action. + Sect. 122. So also on an information where the statute of 17 Geo. 2. c. 40. against embezzling naval stores, gives a moiety of the penalty to the informer, but leaves it in the discretion' of such judge to inflict a corporal punishment in lieu of such penalty; yet if a witness acknowledge on a voir dire that he expects a part of the penalty in case the defendant is convicted, he is an incompetent witness, although his interest is only consequential on the penalty being recovered. † Sect. of Abrahams v. Sect. 123. It seems to be clearly agreed, that a witness shall Per Lord Mansnot be taken to have such a consequential interest in the event of field, in the case a prosecution as will destroy his competency, unless the judgment Bunn, 4 Burr. in the criminal prosecution on which he is examined may be given 2255. in evidence either for or against him in a civil action on the same subject; and therefore it hath been decided upon great deliberation, contrary to former determinations on the subject, that the borrower of money on a pawn at usurious interest is a competent Bull. N. P. 288, witness, in an action for usury against the pawnbroker, to prove 289. not only the repayment of the money, but the usurious transaction, for the judgment in this action could not be given in evidence against him in an action to recover the money lent. + Sect. 124. But if the lender of money, on such action being brought against him, produce a security, or prove the pledge to be remaining in his custody, it seems that the borrower cannot Masters qui tam be examined to contradict this (a); and therefore it has been de- (a) 4 Burr.2256, termined, that if it appear upon the voir dire of the borrower that he is a bankrupt and has not repaid the money borrowed, and obtained his certificate, he cannot be a witness in a qui tam action against his assignee, notwithstanding he is ready to release to his assignee all benefit which may arise from the discharge of this debt in particular, and all claim to surplus and allowance in general, and notwithstanding the assignee has proved his demand for the money leut under the commission. . Drayton, 2 Term Rep. 496. + Sect. 125. THIRDLY, But the interest to render a witness 1 Peer. Wms. incompetent must be a certain benefit or advantage arising to him 287. 1 Term Rep. from the event of the cause, or a certain charge or loss to which 163. he may be liable; for a future or contingent interest, or a future Doug. 134. or contingent loss which he may derive or suffer from the event of the cause, will not render him incompetent. Case, + Sect. 126. Therefore on an indictment for forging a bank Newland's note, signed in the usual form by one of the cashiers, &c. viz. Cases Crown "For the Governor and Company of the Bank of England, W. C. L. 256. "L." the cashier is a competent witness to prove that the name subscribed is not his hand-writing; for the cashier, by signing the note, does not make himself immediately responsible. Sect. 127. FOURTHLY, A remote or trifling interest shall not destroy the competency of a witness. + Sect. 128. And therefore it seems agreed, that it is no good 2 St. Tr. 534. exception against a witness, that he has a maintenance from the 691. king; for every one may maintain his own witnesses. Sect. 129. So also it hath been adjudged to be no good ex- 1 St. Tr. 723. ception against a witness, that he has received a reward for hav- 2 St. Tr. 334. ing made a discovery of the crime to be proved against the St. Tr. 121. prisoner. Kelynge, 18. (a) Kely. 18. + Sect. 130. Also it hath been (a) ruled to be no good excep- 2 St. Tr. 334, tion, that a witness hath the promise of a pardon or other reward 335. 693. on condition of giving his evidence, unless such reward be pro- 3St.Tr.221,222. mised by way of contract for giving such and such particular evi- 1 Hale, 304. dence, or full evidence, or any way in the least to bias him to go Kelynge, 18. beyond 4 St. Tr. 121. 2 Hale, 280. beyond the truth; which not being easily avoided in promises or threats of this kind, it is certain that too great caution cannot be used in making them. Sect. 131. FIFTHLY, If a witness think himself interested, although in point of fact he is not, he should not be examined as a witness. + Sect, 132. SIXTHLY, But it is an established rule, that a person who has signed a deed, or any negotiable instrument for the payment of money or performance of a duty, shall not be permitted to give testimony to invalidate it. Sect. 133. Therefore it has been held, that the person whose name is forged to a bond, cannot, on an indictment for the forgery, be admitted to prove that the name signed is not his signature, except he has a release from the supposed obligee of the bond. + Sect. 154. So also on an indictment for forging a receipt for the payment of money, the person whose name is signed to the receipt is not an admissible witness to prove the forgery. Sect. 135. So also on an indictment for forging a letter of attorney whereby the prisoner transferred stock, the proprietor of the stock is not a competent witness to prove the forgery; but it seems, that he may be admitted to prove the amount of the stock and the interest that was due. + Sect. 136. So where A. the indorsee of a promissory note, indorsed it to B. who gave it up to C. in consideration of his bond given for the amount of it, and on an action on this bond being brought against C. the defendant produced A. as a witness to prove that the consideration given for the note was usurious; the court decided, that the indorser of a note, independent of any question of interest, could not be permitted to prove a note void which he himself had indorsed. + Sect. 137. But where the person whose hand is forged is not directly interested in the question, he may be admitted to prove the forgery; as in the case of Rex v. Wills, who was indicted for forging a receipt from a mercer at Oxford, the mercer having before recovered the money in an action against Wills, he was admitted to prove the forgery. SEVENTHLY, In criminal cases, witnesses though apparently interested are admitted from necessity. Sect. 138. As in an indictment for a cheat, by imposing on A. B. a spurious liquor as genuine port wine, A. B. is a competent witness; for as such cheats are seldom practised except between the parties themselves, they would otherwise be committed with impunity. Sect. 139. So where the indictment charged the defendant with tearing a note in which the defendant promised to pay so much to A. B. the payee of the note was admitted a witness, although it was objected that he was swearing to set up his own demand. Sect. 7 Mod. 119. + Sect. 140. So also it is said, that if an indictment charge the Per Holt, Chief defendant with having defrauded a woman of a bond or note, by Justice, persuading her that he could secure the affections of a man she loved by a certain spell or charm, the woman is a competent witness, although her evidence tends to destroy the validity of the bond or note, by shewing that it was given for an illegal consideration. + Sect. 141. So on an indictment for an assault, the person Rex v. Fox, assaulted is a competent witness to prove the assault, although 1 Str. 652. he has laid a wager that he would convict the defendant. + Sect. 142. In an action also on the statute of Winton against the hundred, the party robbed may himself be a witness. As to the FOURTEENTH POINT, viz. How far religious sectaries may be witnesses. Sect. 143. It seems agreed to be a good exception that a witness is an infidel; that is, as I take it, that he believes neither See 3 Term Bull. N. P. 289. the Old hor New Testament to be the word of God; on one of (a) It is said by which our law requires the oath should be administered (a). Lord Coke, that an infidel cannot be a witness, Co. Lit. 6. and the construction which Hawkins has made upon this passage is warranted by the same authority. 2 Inst. 479. 3 Inst. 165. 4 Inst. 279. See also Fleta, b. 5. c. 22. p. 344. Bract. 116. But Lord Hale doubts whether it be essential to the validity of an oath, that it should be taken upon the Old or New Testament, 2 Hale, 279. And it is now settled, that all persons professing to believe in a God, though neither believing in the Old or New Testament, may be witnesses, if sworn according to the ceremonies of their own religion. 1 At. 21. 2 Eq. Abr. 397. 1 Wils. 84. Co. Lit. 6. note (2). Cowp. 389. 21. Sect. 144. It has been determined, that a subject of the Omichund v. Great Mogul, professing the Gentoo religion, sworn according Barker, 1 Atk. to the ceremonies of that religion, is an admissible witness; for the Gentoos believe in a God as the creator of the universe, and 1 Atk. 46. that he rewards those who do well, and punishes all those who do ill. + Sect. 145. So also a Moor sworn upon the Koran according Fackenor v. Sato the ceremonies of the Mahometan religion, is a good witness. bine. Sect. 146. And it is said, that a heathen has been admitted 1 Atk. 39. a witness. Sect. 147. It hath also been determined, that a covenanter Dutton v. Cole, who, instead of being sworn in the usual manner by laying his 1 Sid. 6. right hand on the New Testament and afterwards kissing it, takes an oath by causing the book to be held open before him, and lifting up his right hand, takes as strong an oath as any other witness the form of the oath in this case is, : 66 You swear, ac- Mildrone's cording to the custom of your country and the religion you Case, Cases in profess, that the evidence you shall give between our sovereign Cro. Law, 319. "lord the king and the prisoner at the bar, shall be the truth, the "whole truth, and nothing but the truth, so help you God." Sect. 148. And it is now settled, that a Jew may be sworn Wells v. Wilin a criminal case on the Pentateuch, according to the ceremo- liams, 1 Ld. nies of the Jewish religion; and it is said that this practice is Raym. 282. the ancient usage of the common law, and that Jews were thus Per Ld. Manssworn field,Cowp.389. VOL. II. R R Vern. 263. |