Two distinct grounds of incompetency: 1. Direct.

2. Indirect

species of customary right, and the question of the existence and validity of the custom is determined by the record, the judgment obtained in the action would be admissible evidence in a subsequent action, for or against a person claiming under the same general customary right, although he was a stranger to the record in the former action: and if a person so situated were tendered as a witness in the first action, it was fully established that the circumstance, of the record being admissible evidence for or against his own claims in a subsequent suit, was an interest which, in general, would render him an incompetent witness. (1)

There were therefore two distinct modes, in which a person, not a party to the record, might derive a benefit or advantage from the event of the suit, and in either case he became incompetent to give evidence. "This benefit," says Lord C. J. Tindal, in a late case, (after citing the general rule in the words of C. B. Gilbert, already quoted in the text) (2) "this benefit may arise to the witness in two cases: first, where he has a direct and immediate benefit from the event of the suit itself; and secondly, when he may avail himself of the benefit of the verdict in support of his own claims in a future action. (3)

These were the only grounds, upon which a witness became incompetent from interest, and it was fully settled, by many decisions, that all other objections on the ground of a supposed interest would affect the credit of the witness only, not his competency. This was the rule laid down and acted on in Bent v. Baker, (4) which has always been considered a leading authority on this subject. And in a subsequent case, Lord Kenyon, referring to the rule established in Bent v. Baker, says, "That case laid down a clear and certain rule, by which I have ever since en

(1) See 1 T. R. 302. 3 T. R. 32. B. N. P. 283. Hockley v. Lamb, 1 Lord Raym. 731. Anscomb v. Shore, 1 Taunt. 261. Lord Falmouth v. George, 5 Bing. 286. The rule had an exception where all the subjects of the king are in

terested, and where no other evidence can reasonably be expected. See Lancum v. Lovell, 9 Bing. 470. B. N. P. 289.

(2) Supra, p. 71.

(3) 6 Bing. 394. Doe v. Tyler. (4) 3 T. K. 27.

deavoured to regulate my opinion. The rule there laid down was, that no objection could be made to the competency of a witness on the ground of interest, unless he were directly interested in the event of the suit, or could avail himself of the verdict in the cause, so as to give it in evidence on any future occasion in support of his own interest." (1) So also Lord Ellenborough, in giving judgment in a case which has been cited in the preceding chapter, (2) recognises the authority of Bent v. Baker and Smith v. Prager, and observes, that the rule was well laid down and established in those cases, "That where a party is not immediately interested in the cause, nor has any interest in the event, in support of which the verdict in that cause may be given in evidence by him in any other proceeding institution by or against him, he is a competent witness."

4,

c. 42.

Alteration of

law as to indi

rect interest.

A material alteration has lately been effected in the Law of Stat. 3 & 4 W. Evidence, with regard to the incompetency of witnesses, on the ground of an indirect interest arising from the subsequent use of the record as evidence for or against the witness. For by the stat. 3 & 4 W. 4, c. 42, s. 26, (3) it is provided, that in cases where witnesses are objected to upon this ground, they shall nevertheless be examined, but that in such case a verdict or judgment by or against the party for whom the witness shall be examined, shall not be admissible in evidence by or against the witness, or any person claiming under him. The effect of this enactment is to remove the objection to the competency of the witness, by removing the interest out of which the objection arises. And the principle, upon which the statute is founded, appears to be in some degree analogous to that of the rule to which we have adverted in the preceding chapter, namely, that a witness in a criminal prosecution shall in no case be allowed to avail himself of a conviction, where he has himself been called as a witness in support of the indictment. In both cases the supposed interest is removed by the fact of the party appearing in the character of a witness, and as he can himself

(1) 7 T. R. 62. Smith v. Prager. (2) R. v. Boston, 4 East, 581, supra.

(3) See the statute in the Appendix.

Practice before the statute.

derive no benefit, either directly or indirectly, from a favourable termination of the suit, no substantial objection to his competency on the grounds of interest can now be made.

The particular provisions of this statute, and the cases that have been decided upon it, will be subsequently stated. It is sufficient to observe at present, that the effect of it appears to be to remove one of the grounds of incompetency from interest which existed before the passing of the act; and to render all witnesses competent, as far as regards objections from interest, unless it can be shewn that they have a direct interest in the event of the particular suit.

In pursuing the inquiry into the present state of the law with respect to the incompetency of witnesses from interest, it is proposed to shew, in the first place, in what cases a witness will be disqualified; and secondly, in what cases he will not be disqualified from this cause; The first of these subjects of inquiry, will occupy the remainder of the present chapter; the next chapter will be devoted to the second.

1. What is such an interest as will disqualify.

The two distinct species of interest that produced disqualification before the statute 3 & 4 W. 4, c. 42, have been mentioned, and it may contribute to the elucidation of the subject of the present inquiry, if, before the particular cases are stated in which a witness becomes incompetent according to the present state of the law, a short notice is taken of the practice antecedent to the passing of the late statute. An instance of disqualification from an immediate interest in the event of the particular suit frequently arose, in cases where an action had been brought by or against a person having no beneficial interest in the subject matter of the action, who either sued or defended merely for the benefit of a third person, and on the trial of the cause such third person was tendered as a witness for the party, who was a mere trustee on his behalf. In cases of this nature, the witness would derive an immediate benefit from a verdict in favour of the party for whom he was tendered as a witness, and would be incompetent, by

reason of this obvious and direct interest in the event of the particular suit. (1) Examples of the more remote species of interest, depending upon the use of the record as evidence, often arose, as we have observed, in the case of actions, in which questions came in issue concerning the existence and legality of some general custom set up by one of the parties to the suit, and which custom affected the rights of other persons tendered as witnesses to prove the custom. Thus, if the issue were on a right of common, which depended on a custom pervading a whole manor, a person claiming a right under this custom was incompetent to give evidence on behalf of the party to the particular suit, who relied on the existence of the custom; for although, in this case, the witness would gain no immediate benefit from the termination of the particular suit, the record in that suit would be evidence in a subsequent action by or against the witness for the trial of the same right. (2) So also in an action, in which an issue arose concerning the existence of a custom to take a certain toll from fishermen frequenting a particular cove, it was decided, that a fisherman who was not a party to the action, but who frequented the same cove, and would have been liable to pay toll under the custom, was an incompetent witness for the purpose of disproving the existence of the custom; for here also, although no immediate gain or loss could result to the witness from the immediate event of the particular suit, yet if a subsequent action were brought against himself for not paying toll, the record of the verdict in the former action would be evidence for or against the witness in the subsequent action. (3)

Such was the general state of the law before the passing of the statute 3 & 4 W. 4, c. 42, s. 26, 27, the effect of which has been, to remove the more remote species of disqualification, and to reduce all questions on the incompetency of witnesses, as being interested to the inquiry, whether or not the witness has any direct interest in the event of the

(1) See other instances of immediate interest given by Tindal, C. J., in Doe v. Tyler, 6 Bing.

394.

(2) See per Buller, J., 1 T. R.

302.

(3) Lord Falmouth v. George, 5 Bing. 286.

particular suit. It is, however, important to observe, that, before the passing of this statute, it happened not unfrequently that witnesses were so situated as to be open to objection, on the ground of an immediate interest in the result of the particular suit, and also on the ground of an indirect interest in the record for the purposes of the evidence in some subsequent suit. And as either objection was sufficient to produce disqualification, such witnesses were rejected sometimes on one ground, and sometimes on the other indiscriminately, according as either objection might be presented to the Courts. Thus, it has been decided in several cases, that a tenant in possession is an incompetent witness for the defendant, and his incompetency has been sometimes attributed to an immediate interest in the event of the particular suit, and at other times to an indirect interest in the record, as available for the purposes of evidence. In the case of Doe v. Wilde, (1) for instance, it was said by the Court, that the effect of a judgment for the plaintiff would be to turn the witness out of possession, and that this was an immediate interest which disqualified the witness from giving evidence for the defendant. But in other cases a tenant in possession, who had been served with a copy of the declaration, has been held an incompetent witness for the defendant, upon the ground, that a judgment for the plaintiff in ejectment would be evidence against the witness in a subsequent action brought against him for the mesne profits. (2)

In cases of the above description (and many similar instances might be given), the witness was open to both objections before the late statute, and it was then immaterial to examine minutely into the exact nature and extent of his interest; because, if it appeared clearly, that he was interested in either point of view, that was a sufficient reason for rejecting his testimony. If the witness had a direct and immediate interest, there was no occasion to have recourse to the second principle, where the interest was

(1) 5 Taunt. 183. See also per Cur. 6 Bing. 304; and Doe v. Bingham, 4 B. & Ald. 672.

(2) Bourne v. Turner, 1 Stra. 632. Doe v. Williams, Cowp. 621. Doe v. Preece, 1 Tyrwh. 410.