interested in the goods insured, neither of the persons so interested is a competent witness for the plaintiffs. And even their release to the plaintiff, of all actions for any sum recovered by them on the policy, will not restore their competency; for it must be presumed, until the contrary be shewn, that, as they are interested in the policy, the action has been brought by their authority, and that they are liable to the attorney for the costs of the action. Nor will the circumstance of the nominal plaintiffs in the action having received an indemnity from other persons, make any difference, the witness still remaining liable to the attorney in respect of the costs. (1) In actions on policies of insurance where there has been a consolidation rule, an underwriter, who is a party to such rule, is of course as directly interested in the event of the particular cause, as if he were a party to the cause itself; and he is, therefore incompetent. So in a case, where the defendant in an action on a policy of insurance called another underwriter as a witness, who stated that he had paid the loss to the plaintiff, upon an undertaking that he was to be repaid in the event of this action failing, and that he had since received a letter from the plaintiff, promising to return the money on that event, Lord Ellenborough, C. J., at the trial rejected the witness. On a motion afterwards for a new trial, the Court sent the case to be re-tried, for the purpose of ascertaining more particularly the time when the undertaking was made to the witness; but on that occasion Lord Ellenborough said, "If a person, who is under no obligation to become a witness for either of the parties to the suit, choose to pay his debt before hand, upon a condition that it is to be determined by the event of that suit, he becomes as much interested in the event of that suit, as if he were a party to the consolidation rule. (2). (1) Bell v. Smith, 5 B. & C. 188. (2) Forester v. Pigou, 1 Maule & Selw. 9. 3 Campb. 380, S. C. The time at which a witness acquires an interest in the event of the suit may, in certain cases, be come material; and it sometimes gives rise to an exception to the general rule that an interested witness is incompetent. See post, where these exceptions are noticed. action. PartCo-con tractors. Upon the same principle, one who is in partnership with Joint interest in the defendant is not a competent witness to discharge a debt, subject of to which, as partner, he would be jointly liable. In an action ners. for goods sold and delivered, the plaintiff having proved the sale of the goods to the defendant and to one J. S. as partners in trade, Lord Kenyon held, that J. S. could not be called for the defendant to prove that the goods were sold to himself, and that the defendant was not concerned in the purchase except as his servant, observing, that the witness came to defeat an action against a man proved to be his partner, and that by discharging the defendant he benefited himself, as he would be liable to pay his share of the costs recovered by the plaintiff in that cause. (1) In a similar action, where the plaintiff proved that the goods had been sold and delivered to the defendant, it was held that a partner of the defendant was an incompetent witness for him, to prove that the goods had been sold to the defendant and to the witness jointly, and had been paid for by them. (2) And in a late case where the action was on a bill of exchange, and the defendant called a witness who admitted that he was a co-contractor with the defendant, the Court of Common Pleas held, that the witness was incompetent, for being liable to contribution for the costs and damages in the action, he had an interest to defeat the action, or reduce the damages. (3) So also where in an action the Plea in abatedefendant pleads the non-joinder of a co-contractor in abate- ment. ment, such co-contractor will be an incompetent witness for the defendant in support of the plea. (4) cases. It is to be observed, that in all these cases the proposed Nature of the witness admitted his own liability to the demand, which was interest in these the subject of the action, and therefore to a certain extent he appeared to be giving evidence against his own interest. But although he admitted his liability to be sued in another action, yet the object of his testimony was to defeat the plaintiff in the (1) Goodacre v. Breame, Peake N. P. C. 174. (2) Evans v. Yeatherd, 2 Bing. 133. See also Cheyne v. Koops, 4 Esp. 112. (3) Hall v. Rex, 6 Bing. 181. 103. Co-obligor of bond. Residuary legatee.-Action by executor. particular action then pending; and hence arose that direct interest in the event of the suit, which rendered him incompetent. For if the plaintiff had succeeded in the action, the witness, as partner or co-contractor, would have been liable to contribution not only for the damages recovered, but also for the costs; whereas by defeating the plaintiff the witness would not only have relieved himself from all liability in respect of the plaintiff's costs, but would also have thrown upon the plaintiff the burthen of the costs incurred by the defendant, and in respect of which the witness might also have been called on to contribute. (1) In an action on a joint and several bond against one of the obligors, who was surety for another, that other obligor, (the principal,) is not competent for the defendant, to prove a payment of money by himself in discharge of the bond: for he has an interest in favour of his surety to the extent of the costs of the action. (2) In an action by an executor to recover a debt due to the testator, a residuary legatee is an incompetent witness for the plaintiff. (3) This incompetency does not arise from the use of the verdict as evidence in any future suit, for the witness could neither be plaintiff nor defendant in an action relating to the debt; the witness is disqualified, because he receives an immediate benefit by a verdict for the plaintiff. (4) The action is in the name of the executor, but the witness is the party substantially interested in the event. And even if the witness release all claim to the debt in question, this will not restore his competency, for he has still an interest in supporting the action in order that the costs may not be a charge on the estate. (5) (1) See the cases in which it has been held, that a partner or co-contractor with the defendant, is competent for the plaintiff. Post. And see as to the effect of a release from one partner to another in restoring competency. Post. (2) Townsend v. Downing, 14 East, 565. See also Trelawney . Thomas, 1 H. Bl. 306. And see other cases as to incompetency from liability to costs. Post. 27. (3) Baker v. Tyrwhitt, 4 Campb. (4) Per Tindal, C. J., 6 Bing. 394. (5) Baker v. Tyrwhitt, supra. Action by In an action by an administrator against a debtor of the in- Next of kin.— testate, a person entitled to a distributive share of the estate, administrator. will not be a competent witness to support the action. (1) And it has also been ruled, that a witness so situated will not be competent for the administrator, in an action brought against him in that character. (2) In these cases, the natural and immediate effect of a verdict in favour of the executor or administrator would be, to benefit the general fund in which the witness was interested; but it will be seen hereafter, that the principle of these cases has been held not to apply to specific legatees, whether paid or unpaid, or to creditors of the testator or intestate. (3) Specific legatees, creditors, &c. See post. Bankrupt. to increase The situation of a bankrupt bears some resemblance, in point of interest, to that of a residuary legatee. The bankrupt is Incompetent interested in increasing his estate, for his allowance under the fund. bankrupt act, depends upon the clear amount of the funds recovered by his assignees, and the surplus, if any, after his creditors are satisfied, belongs to himself. This is an interest which, in actions by or against his assignees, renders him an incompetent witness on behalf of the assignees, for the purpose of adding to the amount of the fund, or to preserve it from diminution. (4) In order to render the bankrupt competent in such cases, he must release his allowance and surplus: and it is also necessary, that he should have obtained his certificate, Necessity of without which his evidence will, in no case, be admissible certificate. on behalf of his assignees. (5) (1) Matthews v. Smith, 2 Y. & J. 426. It was also decided in this case, that a release from the witness to the administrator of all claims up to the time of executing the release would not restore competency, the right of the witness being prospective. The question of costs seems not to have been adverted to in this case. See Ingram v. Dade, post. (2) Allington v. Bearcroft, Peake's Add. Ca. 212. (3) Post, sect. 2, p. (4) Ewens v. Gold, B. N. P. 43. Butler v. Cooke, Cowp. 70. Ex parte Burl, 1 Mad. Rep. 46. (5) See Dixon v. Purse, Peake's Add. Ca. 187. Masters v. Drayton, 2 T. R. 496. Goodhay v. Hendry, Mo. & Ma. 319. See also Tennant v. Strachan, ib. 378, where Lord Tenterden refused to postpone a trial on the ground that the bankrupt, whose testimony was wanted, would shortly become com Second commission. Incompetent to support or defeat fiat. Where there has been a second commission against the bankrupt, and he has not paid fifteen shillings in the pound, he will not be a competent witness for his assignees, although he has obtained his certificate and released his allowance and surplus; for his future effects remain liable until payment of fifteen shillings in the pound, and he is therefore interested in increasing the fund, in order to relieve himself from this liability. (1) There is another case, in which a bankrupt is wholly incompetent to give evidence in any action by or against his assignees, notwithstanding he may have obtained his certificate and released his surplus and allowance: this is, where the bankrupt is called for the purpose of proving any fact, which is material either to support, or to defeat, the fiat issued Reason of the against him. (2) The doctrine, that a bankrupt is incompetent to give evidence in support of his commission, has been sometimes referred to the ground of interest; it has been said, if the fiat or commission is not good, the certificate and all other proceedings are void, and the bankrupt will be again liable to his debts. (3) If, however, this were rule. petent, by the Lord Chancellor al- (1) Kennett v. Greenwollers, (2) The following are some of the principal cases on this point. That a bankrupt is incompetent to prove his own act of bankruptcy. Field v. Curtis, 2 Stra. 828. Ewens v. Gold, B. N. P. 40. Per Lord Kenyon, Oxlade v. Perchard, 1 Esp. 288. Per Lord Ellenborough, Hoffman v. Pitt, 5 Esp. 25. Wyatt v. Wilkinson, 5 Esp. 187. That a bankrupt is incompetent to prove the petitioning creditor's debt. Cross v. Fox, 2 H. Bl. 279, n. (a). Flower . Herbert, ib. 279, n. (a). Chapman v. Gardner, 2 H. Bl. 279. That a bankrupt is incompetent to disprove the alleged act of bankruptcy, or to explain an equivocal act. Hoffman v. Pitt, 5 Esp. 22. Binns v. Tetley, McLel. & Y. 404, in which case all the authorities were reviewed.Sayer v. Garnett, 7 Bing. 103. In Oxlade v. Perchard, 1 Esp. 287, Lord Kenyon had ruled differently, and had considered the bankrupt admissible to explain an equivocal act, but in Sayer. Garnett, 7 Bing. 104, Park, J., said, that Lord Kenyon afterwards changed the opinion he had there expressed. (3) See by Lord C. J. Ryder, in Flower v. Herbert, 2 H. Bl. 279, n. (a.), by Bayley, J., and Holroyd, J., 2 B. & C. 18, 19. |