Part-owners. Residuary legatee. Stamp of release. defendants, who admitted that he had been a partner with the defendants during a part of the time over which the account extended, was rendered competent by the effect of general releases from the witness to the defendants, and from the defendants to the witness. (1) In the recent case of Jones v. Pritchard, (2) it was held, in an action for work done to a vessel, brought against one part-owner, that another part-owner is a competent witness for the defendant, after a release; a release from the witness was not considered necessary. A residuary legatee is not rendered a competent witness, in an action by an executor to recover a debt due to the testator, by releasing all claim to the debt in question; for if the plaintiff fail in the suit, although he would not be liable for costs to the opposite side, he must pay costs to his own attorney; and the executor would be entitled to the allowance of these costs out of the estate, the action being brought bona fide; thus independently of the debt to be recovered, the residue would be diminished. The witness, therefore, has still an interest to support the action, and can only be rendered competent by releasing the residue, or by a release of the costs of the action from the attorney. (3) Where the defendant in an action executed a release to a witness, but before it was given to the witness it was handed to the plaintiff's counsel, who objected to the form, on which (1) Wilson v. Hirst, 4 B. & Ad. (2) 2 M. & Wel. 199, see (3) Baker v. Tyrwhitt, 4 Campb 27; and see Carter v. Abbot, 1 B & C. 144. Perryman v. Steggel, 8 Bing. 369, as to its being necessary for the bankrupt to release his surplus to his assignees, or to obtain releases from his creditors, besides being released by the party who calls him. In Carter v. Abbot three releases were given. In Perryman v. Steggel, the general release was held insufficient. it was altered and re-executed, the release was held sufficient, and that a new stamp was unnecessary. (1) And in a late case, in which the defendant in an action executed a release to one of the witnesses before the trial, and gave it to his attorney, and at the trial it appeared that another witness would require to be released, and his name was accordingly inserted, and the release re-executed before it had been delivered out of the attorney's possession, it was held by the Court of Exchequer, that the instrument was still in fieri at the time of re-execution, and did not therefore require a fresh stamp. (2) release. Where the defendant has suffered an incompetent witness to Undertaking to be examined, on the undertaking of the plaintiff's attorney to execute a release to him after the trial, and the plaintiff has obtained a verdict, a new trial will not be granted, on the ground that the release has not been given, but the witness will have a remedy on the undertaking. (3) When a witness is objected to as a member of a corporation, Member of corporation. whose interests are in question, his competency may be restored either by his resignation, (which will be effectual even by parol, provided it has been accepted, and another person elected in his place,) (4), or by disfranchisement. The method of disfranchisement is said to be by an information in the nature of a quo warranto against the member, who then confesses the information, and upon that there is judgment of disfranchisement. (5) This judgment must be such as cannot be avoided; for if it appear that the witness can avoid the judgment for irregularity, (as he may, if he has never been summoned, and knew nothing of his disfranchisement,) he is not competent. (6) It has been seen that the competency of a witness who is Bail. (1) Alton v. Farren, 5 Car. & P. 513. (2) Spicer v. Burgess, 1 C. M. & R. 129. 4 Tyr. 598. Qu. as to the sufficiency of a single stamp on a release to two witnesses. See per Lord Lyndhurst, 4 Tyr. 605. (3) Heming v. English, 1 C. M. & R. 568. 5 Tywr. 185. (4) R. v. Mayor, &c. of Ripon, 2 Salk. 432. Com. Dig. tit. Franchise (F. 30.) (5) The case of the Mayor, &c. of Colchester, 1 P. Wms. 595, n. (6) Brown v. Corp. of London, 11 Mod. 225. Obligor for costs. Release refused. the defendant's bail, may be restored by applying to the Court to strike out his name from the bail piece, or by depositing a sum of money in Court at the trial of the cause as a security for the debt and costs. (1) So, a witness called for a plaintiff, who is liable to the defendant upon a bond for the costs of an action, will be allowed to deposit the amount of the penalty of the bond with the officer of the Court, and his evidence will then be received. (2) It has also been noticed, that if a witness offers to release or surrender his interest, and executes a release accordingly, his competency is restored, though the party refuses to accept his release. CHAPTER XI. PRIVILEGE OF WITHHOLDING EVIDENCE, AND INCOMPETENCY IN the preceding chapters, we have considered the grounds of incompetency of witnesses, arising from want of understanding, defect of religious principle, infamy of character, and interest in the event of the suit. The objection to witnesses from these causes depends upon one principle, the want of personal credit attaching to the testimony of the witnesses. We proceed now to treat of certain other grounds for the exclusion of evidence, depending on various principles. These will be treated of in the following order : 1. The privilege of the parties to a suit from being examined. 2. The incompetency of the husband or wife of parties to the suit. 3. The exclusion of matters of evidence disclosed in professional confidence. (1) Baillie v. Hole, Mo. & Ma. N. P. C. 290, and see Pearcey v. Heming, 5 Car. & P. 503. (2) Lees v. Smelt, 1 M. & Ro 329. 4. The exclusion of matters of evidence the disclosure of which would be prejudicial to public interests. Analogous to these grounds for the exclusion of evidence are various others established for the protection of witnesses, as upon questions relative to their previous life and character, or tending to criminate themselves, or to subject themselves to forfeitures, or occasioning a disclosure of their title to property; these will be more properly considered in the chapter which treats of the examination of witnesses. SECTION I. Of the Privilege, of Parties to the Suit, from being Examined. A party to the suit is never compelled, on trials before a jury, to give evidence for the opposite party against himself. Inconvenience from the exclusion of evidence of this description is not extensively felt in practice; as, notwithstanding the ordinary tests to which the testimony of witnesses is subjected, parties would perhaps rarely venture to avail themselves of the testimony of their adversaries. It would seem, however, that the rule in question originated from some apprehension of the vexation and inconvenience which might ensue, if a person were bound to prejudice or accuse himself: nemo tenetur seipsum prodere. It may be doubted, whether this maxim is altogether consistent with the strict administration of impartial severe justice. Thus much may be said for the rule, that it shuts out opportunities of false swearing and perjury; and, in criminal trials, saves the judges from the necessity of questioning prisoners to their conviction,-a practice, which in some instances might be ill employed, and would generally give offence to public feeling. (1) (1) The practice of interrogating the prisoner by the Court was very common in the early state trials, and was not abandoned at the Revolution. It seems to have been required on the part of magistrates, previous to committing prisoners, though this power is not usually exercised. See post, Depositions and Examinations. On the subject of the exclusion of the testimony of parties to suits, see Bentham, Rationale of Judicial Evidence, book IX. ch. 3, 4, 5, where the proceeding is not before a jury, the maxim nemo tenetur seipsum prodere is frequently departed from in our jurisprudence. Rated inhabi tants. Co-plaintiff another. On a question of settlement, it has been determined in the case of the King v. Woburn, (1) that the rated inhabitants of either parish, being in reality parties to the proceedings, can not be compelled to give evidence against their own parish. So, in an action of ejectment, on the several demises of two lessors, one of them is not compellable to give evidence for the defendant, though no title has been proved under his demise. (2) The lessors of the plaintiff, said Lord Ellenborough, are substantially the parties on the record; all are jointly liable; that lessor, upon whose title the recovery proceeds, is generally the trustee of the other; and there are the same reasons for protecting them from being examined, which have produced the general rule of law, that the parties on the record cannot be compelled to give evidence against themselves, and are not permitted to swear in their own favour. In the case of several plaintiffs or defendants, the privilege is witness against personal to each plaintiff and defendant. Where one of several co-plaintiff's comes forward voluntarily to disprove the defendant's liability to the demand made upon him, it has been held, that, with the consent of the adverse party, he may be admitted, though at the same time he defeats the claim of those, who jointly sue with him (3): for, if the plaintiff were to make a declaration against his interest out of court, evidence of that declaration would be admissible; and how is the proof less credible, said C. J. Mansfield, if, with the consent of the defendant, who waives all objection to his testimony, he declares the same thing upon oath at the time of trial. (1) 10 East, 403. This case was decided before the statute 54 Geo. 3, ch. 170, s. 9. It does not appear to be determined, whether, since that statute, parishioners are compellable to give evidence, or are merely rendered competent. The same question arises upon the various other statutes making rated inhabitants competent witnesses. (2) Fenn dem. Pewtress v. Granger, 3 Camph. N. P. C. 178. (3) Norden and another v. Wil liamson, 1 Taunt. 378, by Mansfield, C. J., and Chambre, J., who were the only judges present. And see Worrall v. Jones, 7 Bing. 395, ante. It does not appear to have been considered, whether persons, whose admissions are evidence against parties to a suit, on the ground of their being the real, though not nominal, parties to a suit, are privileged from giving evidence. |