bitant. the charge of repairing a chapel, an owner of property within 1 the district was held incompetent to disprove the liability, (although he neither resided nor was rated in the district,) having leased his property to a tenant who was bound to pay the rent without deduction: the owner was immediately interested in removing such a permanent charge, and thus to improve the value of his estate. (1) In a subsequent case, upon an issue whether a messuage was situated within a chapelry, it was Rateable inha determined that an occupier of property within the district, who was not actually rated, was competent to prove, that it was so situated; and although the decision proceeded chiefly upon the operation of the statute of the 54 Geo. 3, c. 170, s. 9, in restoring competency in such cases, and which statute will be partially noticed hereafter, yet the Court expressed an opinion that as the witness was not actually rated, but only rateable, he was competent at common law. (2) A rated inhabitant of a parish is clearly incompetent, on the general principle, to give evidence for the defendant in an action against the surveyor of the highways, in support of a custom to take materials from the sea beach for the purpose of repairing the road; for if such custom were established, the highways of the parish would be repaired at little expense, and the highway rates be thereby diminished. (3) Nor is the witness rendered competent in such a case by the statute 54 Geo. 3, c. 170, s. 9. (4) So also in an action to recover a sum, alleged to be due to the plaintiff for attending a pauper, against an overseer, who defends on the part of the parish, a rated inhabitant is an incompetent witness for the defendant; (5) for if the plaintiff recover the amount claimed, it would be a charge on the rates; and the witness is not rendered competent by the above mentioned statute, because the question in the action is not "a Rated inhabitant. (1) Rhodes v. Ainsworth, 1 B. & Ald. 87. See post C. as to the effect of the rule by statute 54 Geo. 3, c. 170, s. 9, upon questions of this description. (2) Marsden v. Stanfield, 7 B: & C. 815, 818. See Rex v. Kirdford, 2 East, 559. (3) Oxenden v. Palmer, 2 B. & Ad. 236. Per Lord Tenterden, (4) S. C. and R. v. Bishop Auckland, 1 Ad. & Ell. 744. See this statute, post, and the cases in which it restores competency. (5) Tothill v. Hooper, 1 Mood. & Rob. N. P. C. 392. matter of rates or cesses of the parish," within the meaning of the act of parliament. (1) In an action of replevin, a party under whom the defendant Replevin makes cognizance is, in general, an incompetent witness cognizance. for the defendant, being the person really interested in the event of the cause, and in truth the substantial defendant. And in a case where there were two cognizances, one under the party beneficially interested, and the other under a trustee for him; the evidence of the latter was rejected, notwithstanding the absence of any beneficial interest on his part in the premises. (2) In the case of Upton v. Curtis, (3) it appears that a party, under whom cognizance was made, was considered incompetent for the defendant, although that particular cognizance had been abandoned. zances. But it has been settled in a very recent case, that where dis- Present rule. tinct cognizances are made under different parties, who do not appear to be in any manner connected in interest, if one of the Distinct cognicognizances be abandoned at the trial, the party, under whom it is made, is a competent witness for the defendant. (4) Lord Denman in delivering the judgment of the Court, after observing there was reason to suppose that the facts of the case of Upton v. Curtis were not reported with perfect accuracy, said, the Court were of opinion, that the offer to abandon the issue, joined on the cognizance under the witness, was tantamount to consenting that a verdict should be found for the plaintiff on that issue. (5) It is now proposed to notice an important class of cases, in Liability over. which witnesses have been rejected as incompetent to give evidence in a particular suit, on account of their liability to a subsequent action by one of the parties to that suit. Thus, in the case of actions against a master or principal, founded on the alleged misconduct of a servant or agent of the defendant, such servant or agent has been generally rejected as an incompetent witness for the defendant to disprove his own misconduct. In the numerous cases of this nature, which occurred before the passing of the statute 3 & 4 W. 4, c. 42, the rejection of the witness almost always proceeded on the ground of an indirect interest in the record with reference to a subsequent suit: for if the servant or agent has been guilty of the misconduct imputed to him, he will in general be liable to make good all damages sustained by the master or employer in consequence of such misconduct, and may be compelled by the latter, through the medium of an action, to repay any damages and costs recovered by the party injured. And although the record of the first action would not be evidence in the second for the purpose of establishing the fact of the misconduct of the witness, yet it would be admissible for the purpose of shewing the quantum of damage sustained by the master or employer in consequence of the witness's misconduct, after the fact of such misconduct had been proved by other evidence. (1) Now it has been seen, that, before the statute of the 3 & 4 W. 3, c. 42, it was a settled general rule, that a witness was incompetent to give evidence in any suit, where the record of the proceedings in that suit would be evidence for or against himself in a subsequent action against him; and as it was clear, that in these cases the defendant in the first action might produce the record thereof, as evidence in a subsequent action against the servant or agent, the latter when tendered as a witness in the first action, has generally been rejected upon the ground of this indirect interest in the record. Thus, in the case of Green v. The New River Company, (2) which was an action to recover damages sustained by the plaintiff, through the alleged misconduct of a servant of the defendants, the servant was held an incompetent witness for the defendants, to dis prove his own negligence. It was said by the Court, that although a tradesman's servant is permitted to prove the delivery of goods on behalf of his master, this is an exception to the general rule, proceeding merely from necessity;(1) and that this exception would not extend to actions arising from the misconduct of coastmen and sailors, in which cases the verdict against the proprietor might be given in evidence in a subsequent action by the latter against the servant, as to the quantum of damages, though not as to the fact of the injury ; and so in the case then before the Court, the verdict might be given in evidence in an action by the defendants against the witness, and therefore he was incompetent without a release. (2) So also in an action against a coach proprietor for negligence. in the management of the coach, the guard, who appeared to be implicated in the alleged mismanagement, has been considered incompetent, without a release. (3) In an action against the captain and owner of a vessel for an injury occasioned by imputed mismanagement of the vessel, a pilot, who had the control of the vessel at the time, has been also considered incompetent to give evidence for the defendant. (4) Upon the same principle it has been ruled, in an action Broker. against a principal for misconduct in the purchase of certain goods, that a broker, who had been employed by the defendant to make the purchase, was incompetent to disprove negligence in the transaction. (5) And in an action for an excessive distress, the broker, who made the distress, has been considered incompetent to prove that it was not excessive. (6) In like manner, in an action against a sheriff for a false return, Sheriff's the sheriff's officer, who has given security for the due execution officer. of process, (and is consequently liable over to the sheriff in case of misconduct,) has been adjudged to be an incompetent witness Assistant. Landlord receiving rent from sheriff. to prove the correctness of the return. (1) But in a case, where in an action of this nature, an objection was made to the competency of an assistant to the sheriff's officer, upon the ground, that although the witness was not immediately liable to the sheriff, he was liable to his own employer, the officer, and that in an action against the officer the sheriff might give in evidence the record in the first action, and that the record of the second action would be evidence for the officer in a subsequent action against the witness, Lord Tenterden held, that this circuity of interest was no legal ground of exclusion. He observed, that the rule established and acted upon was, that, in order to exclude a person called as a witness, the verdict must be evidence for or against him, and that an interest beyond this was too remote to establish incompetency. (2) However, the officer himself was rejected by the same learned judge as incompetent for the sheriff, even where he had received an indemnity from the execution creditor, and had not employed the attorney for the defence; on the ground, that, if there should be a verdict against the sheriff, the liability of the officer would be certain, and that he might never get paid on his indemnity. (3) It has also been decided, in an action against the sheriff for a false return to a fi. fa., which stated that he had paid a sum of money to the landlord of the premises for arrears of rent, that the landlord is incompetent to prove the rent due; for if the action were to succeed, the witness would be liable to an action at the suit of the sheriff, in which the judgment in the former action would be evidence of special damage. (4) In this last case, it will be observed, the witness did not stand exactly in the situation of an agent employed by the defendant to do a particular act and misconducting himself in the course of his employment, but the principle, upon which he was rejected, was the same as in the preceding cases, namely, (1) Powell v. Hord, 2 Lord Raym. 1411. 1 Stra. 650, S. C. (2) Clark v. Lucas, Ry. & Mo. N. P. C. 32. (3) Whitehouse v. Atkinson, 3 Car. & P. N. P. C. 344. (4) Keightley v. Birch, 3 Campb. 521. |