an act of parliament, which authorizes them to assess rates on the inhabitants, but, in case of appeal, makes them liable for costs, to be indemnified out of the parochial funds, are not competent witnesses on the trial of such appeal, being individually liable to costs, in the first instance. (1) In a late case, where parochial trustees were empowered by statute to sue in the name of their treasurer, or clerk, and the act contained a provision for re-imbursing such treasurer, or clerk, his costs out of the rates, Lord Tenterden appears to have considered, that, in an action brought in the name of the treasurer, a trustee was an incompetent witness for the plaintiff, although the trustees took no benefit under the statute, and rated parishioners were thereby made competent witnesses. (2) where free from interest. As the objection to the competency of a party to the suit is Competent founded, not upon the abstract ground of being a party, but upon the ground of being interested, it follows, that if a person, tendered as a witness, has no interest whatever in the event of the suit, he will be competent, although he is a party to the record. Thus, in an action against parties in a corporate capacity, who had no individual interest in the question in dispute, and were not personally liable to costs, Lord Kenyon admitted several of the defendants, as witnesses against the claim of the plaintiff. (3) And indeed, it Corporations, appears to have been always considered, that, in actions by or against corporations, individual corporators are competent, where they have no interest in the event of the suit: for in all these cases the objection to the witness has been, not that he was a member of the corporation, and consequently one of (1) R. v. St. Mary Magdalen, Bermondsey, 3 East, 7. (2) Whitmore v. Wilks, Mo. & Ma. N. P. C. 214. The ground of Lord Tenterden's opinion seems to have been, that the trustees were the substantial plaintiffs; but qu. whether they had any, and what interest in the event? The witness was admitted, leave being given to move, and a rule nisi for a new VOL. I. E See trial appears to have been granted (3) Weller v. Governors of Found- the parties to the suit, but that he had some personal interest Inhabitants of which disqualified him from giving evidence. So in proceedparishes, counties, &c. ings against the inhabitants of parishes and other districts, relative to settlements, repairs of highways and bridges, and other questions affecting the rates of particular districts, rated inhabitants have been always adjudged to be incompetent, (unless rendered competent by statute), by reason of their interest in the event of the suit: but inhabitants not rated had no such interest, and were always considered competent, although the particular proceedings, in the course of which their evidence was admitted, were nominally by, or against, all the inhabitants of the district. And even rateable inhabitants are not incompetent, if not actually rated. (1) Co-defendant in case of judgment by default or nolle prosequi: Action on contract. Defendant incompetent for co-defendant. The preceding observations relate to the incompetency of parties, who retain their original situation assumed at the commencement of a suit. But questions, with regard to the competency of the parties to the record to give evidence, have most frequently arisen in actions against several defendants, one of whom has been placed in a different situation on the record, from that of his co-defendants, in consequence of a judgment by default or nolle prosequi. In some of these cases, the question of the witness's competency is rather complicated and difficult, and it is perhaps not easy to reconcile all the decisions on the subject; but in all of them, the inquiry has been, whether the effect of the particular proceeding, that has taken place with regard to the witness, has been to remove his interest at the trial; if such appears to be the case he will be competent: but, if he still appears to have an interest in the determination of the cause, in favour of the party on whose behalf he is tendered as a witness, he will be incompetent. 1. Effect of a judgment by default. In an action against two defendants on a joint contract, it was ruled by Lord Kenyon, that one of the defendants, who had suffered judgment by default, was incompetent as a witness, in behalf of the other defendant, to negative the contract; for if (1) See Marsden v. Stanfield, 7 B. & C. 818. negatived as to one, the contract failed as to the other, and the plaintiff could make no use of his judgment by default against the witness, who was consequently interested in obtaining a verdict for the defendant. (1) It has also been decided, that a defendant so situated is not Incompetent for plaintiff. competent for the plaintiff'; upon the ground, that, if the plaintiff succeed in the action, the witness will be entitled to contribution from his co-defendant, but that if the plaintiff fail, the witness will himself be liable for the whole demand; for although, as stated in the previous case, the judgment by default in that particular action would become inoperative, by the failure of the plaintiff on the trial; yet it was said by the Court, the plaintiff' might proceed against the witness for the recovery of the whole demand in another action, and the witness would relieve himself from this liability to a new action, by establishing the join liability of his co-defendant. (2) In a subsequent case, a witness, similarly situated with the witnesses in the two preceding cases, was considered incompetent for the plaintiff, although he had been released by the plaintiff as to all actions except the action on trial. It was argued in this case, that the witness was, at all events, rendered competent by the release, for if the plaintiff failed, the witness would be freed from all liability whatsoever; but if the plaintiff succeeded, the judgment by default would become available against the witness, and he would be liable jointly with the other defendant, and that consequently his giving evidence for the plaintiff' must be against his own interest; but the Court of Common Pleas decided, that he was incompetent. (3) (1) Brown v. Fox, Ex. Sum. Ass. 1789. 8 Taunt. 141. (2) Brown v. Brown, 4 Taunt. 752. The distinction between this and the preceding case is very refined; for, in the preceding case, the witness was rejected, because he was interested in procuring the failure of the plaintiff, and here he was also rejected, because he was interested in procuring his suc cess. (3) Mant. Manwaring, 8 Taunt. 139. 2 Moore, 9, S. C. The Court appear to have considered in this Sometimes competent for plaintiff. Action on tort. If, however, a defendant, who has suffered judgment by default be so situated, that he cannot claim contribution from his co-defendants, he will be a competent witness against them. Thus in an action on a bond against a principal and two sureties, where the principal had suffered judgment by default, and was tendered at the trial as a witness on behalf of the plaintiff, the Court of Common Pleas, after a review of all the authorities, and time taken to consider, held, that he was competent. (1) In giving judgment in this case the court said, that no objection could arise on the ground that the witness was interested to procure a verdict for the plaintiff, inasmuch as, being the principal debtor, he could not call for contribution from the other defendants, but was himself ultimately liable to all the damages and costs recovered in the action; and that there was no case to shew that a witness was disqualified, merely because he was a party to the suit, where he was not interested in giving his testimony. In actions upon torts against several defendants, the situaCo-defendant tion of a defendant, who has suffered judgment by default, suffering judgment by varies from that of a defendant who has suffered judgment by default. default in an action against several parties upon a joint contract. In the latter case, as we have already observed, if the plaintiff fails upon the trial against the other defendant, his judgment will, in general, be rendered wholly unavailing; but in the former case, he will, in general, be entitled to enforce his judgment against the party who has suffered it to pass against him, although the other defendants who have pleaded may obtain a verdict. In the case of Ward v. Haydon, (2) it was ruled by Lord Kenyon at nisi prius, that the defendant in an action of trover, who had suffered judgment by default, was a competent witness for his co-defendant, who had pleaded not guilty. His Lordship observed, that by reason of the judgment by default, the cause was at an end, with regard to the witness. that he was not liable to the costs of the issue tried against the He'd competent for codefendant. (1) Worrall. Jones, 7 Bing. 395 See the judgment of Tindal, C. J., in this case, quoted ante. And see post, as to a party to a cause not being compellable to give evidence against his own interest. (2) 2 Esp. N. P. C. 553. Peake's Add. Ca. 126, S. C. other defendant, and was not himself released, whatever might be the event of that issue. The same point appears to have been also ruled at nisi prius by another learned judge, in an action of trespass. (1) But there may, perhaps, be some doubt, whether the decisions, just adverted to, are to be considered as furnishing a general rule, applicable to all cases, in which one of several defendants in an action of tort, has suffered judgment by default. According to the ordinary practice, there is but one assessment of damages in cases of this nature, and the same jury, that try the issue between the plaintiff and the defendants who have pleaded, also assess the damages against the defendant, who has suffered judgment by default, and the other defendants, if they are found guilty. It is obvious, that a defendant, who has suffered judgment by default, has an immediate interest in reducing the amount of damages, and therefore, as it should seem, could not be called for this purpose. And in a late case, (2) in which a defendant, who had suffered judgment by default in an action of trespass, was called as a witness for two co-defendants, who had pleaded, Best, C. J., was of opinion, that the witness was incompetent; for if his evidence were admitted on behalf of the other defendants, it might give such a complexion to the case, as to operate in reduction of the damages against himself. (3) (1) Anon. 2 Campb. 334, n. Wood, B. See also by Le Blanc, J., 2 Campb. 333, n. (2) Mash v. Smith, 1 Car. & P. 577. (3) The Lord Chief Justice however, admitted the witness, with leave to move if the result of the cause should render it material. The result does not appear from the report, nor does it appear whether the nature of the testimony of the witness was such as might tend to reduce the damages. In Ward . Haydon, the action was trover for a carriage, and the witness was called, not upon any point connected with the value of the carriage, but only to shew that the conduct of the other defendant was not such as amounted to a conver- Damages assessed. |