is founded, it ought to be read. Butler v. Carver, 2 Stark. 434. But where the objection is made on cross-examination, and not on the voire dire, a writing must be proved in the regular way. Howell v. Lock, 2 Camp. 14. The objection of interest may be removed in the same manner in which it is raised; and therefore, where the witness was objected to on the voire dire as next of kin in an action by an administrator, but on re-examination stated that he had released his interest, the objection was held to be removed. Ingram v. Dale, 1 Phill. Ev. 124. Botham v. Swingler, 1 Esp. 164.; S. C. Peake, 218. He may be cross-examined as to the validity of the release; thus a corporator, who states on voire dire that he has been disfranchised, may be questioned, and books referred to by him may be inspected, to impeach the regularity of the disfranchisement. Godmanchester v. Phillips, 4 A. & E. 550. If the objection is not raised out of the mouth of the witness, it must be answered by facts proved in the ordinary way. Botham v. Swingler, suprà; Corking v. Jarrard, 1 Camp. 37. And in an action by assignees of a bankrupt where the bankrupt was called, and it appeared by the pleadings that he was the bankrupt and so interested, it was considered necessary to restore his competency by proving his certificate and release. Goodhay v. Hendry, M. & M. 319.; semb. Acc. Anon. Cor. Tindal C. J., Id. 321. But in a later case of Lunniss v. Row, 10 A. & E. 606., the appearance of the witness's interest on the face of the pleading was held unimportant, and he was permitted to prove a release on the voire dire by parol: and per Littledale J., “He knows nothing about the record, and cannot be presumed to have had notice of the objection that would be made to his testimony." A witness, who appears primâ facie interested by the evidence of a previous witness, may be examined on the voire dire by the party who calls him. Hartshorne v. Watson, 5 New Ca. 477. Where a bankrupt, called as a witness, stated on the voire dire that he had obtained his certificate and released his assignees, Parke J. held him competent without the production of the release. Carlisle v. Eady, 1 C. & P. 234. ; and see Wandless v. Cawthorne, M. & M. 321.

Per

Time of acquiring the interest.] It has been held that a witness cannot, by making a wager on the point in question, render himself incompetent, and thus deprive the party of his testimony; Barlow v. Vowell, Skinn. 586.; and that where a person makes himself a party in interest after a plaintiff or defendant has an interest in his testimony, he cannot by this deprive the plaintiff or defendant of his testimony. Grose J., Bent v. Baker, 3 T. R. 27. This doctrine, however, has been since qualified, and it is held, that though a person who is the agent of both parties in the transaction, or who has been chosen as the attesting witness of it, cannot afterwards disqualify himself by voluntarily acquiring an interest in it for the purpose of taking off his testimony; yet, on the other hand, the pendency of a suit cannot prevent third persons from transacting business bona fide with one of the parties; and if an interest in the event of the suit is thereby acquired, the general consequence of law must follow, that the person so interested cannot be examined as a witness for that party, from whose success he will necessarily derive an advantage. Forrester v. Pigou, 3 Camp. 380. ; S. C. 1 M. & S. 9. Therefore where a plaintiff suing on a charterparty has communicated an interest in the adventure to an attesting

witness, the latter can neither be called in behalf of the plaintiff, nor can his handwriting be proved. Hovill v. Stephenson, 5 Bing. 493. But where, subsequently to the execution of the instrument, the witness becomes interested by operation of law, as by becoming executor or administrator, or by marriage, we have seen that evidence of his handwriting is admissible. Vide antè, p. 89.

What is such an interest as excludes.] The law regards a person as interested where there is a definite benefit or disadvantage to the witness attending the result of the cause one way. This arises in two cases: first, where he has a direct, certain, and immediate benefit from the event of the cause; secondly, where the verdict in the cause may be given in evidence on any future occasion in support of, or against, his own interest. Smith v. Prager, 7 T. R. 62.; Doe v. Tyler, 6 Bing.

394.

There are various instances in which a witness is said to be excluded on the ground of his direct interest in the event of the suit. Thus, a residuary legatee is incompetent for the plaintiff in an action brought by the executor to recover a debt due to the testator. Baker v. Tyrwhitt, 4 Camp. 27. So in ejectment the landlord cannot prove the title of the defendant, his tenant; nor can the tenant in possession defend the title of his landlord; and where the plaintiff has made out a primâ facie case, a witness, who states that he is himself the real tenant, is incompetent for the defendant, since he would be turned out under a judgment for the plaintiff. Doe v. Wilde, 5 Taunt. 183.; and Tindal C. J. in Doe v. Tyler, 6 Bing. 394. A remainder-man is incompetent to establish the preceding particular estate tail, though he is of very advanced age, and there are issue in tail before him. Doe v. Tyler, suprà. In trespass, the defendant justified a distress on A. as his tenant; plaintiff, under the replication non tenuit, alleged that A. was seised in fee and demised to plaintiff; held that A.'s wife was not competent for the plaintiff; for if defendant succeeded, A. would have to indemnify the plaintiff; and the incompetency, being independent of any use made of the verdict, was not removed by 3 & 4 W. 4. c. 42. s. 26. Wedgewood v. Hartley, 10 A. & E. 619. In debt against a devisee on the bond of his testator, the devisee of an annuity charged on the real estate is not competent to prove the bond to be a forgery, though it does not appear whether the estate may not be sufficient to answer both charges. Bloor v. Davies, 7 M. & W. 235. In ejectment by mortgagee, a later mortgagee is incompetent for the defendant to show the first to have been void for fraud. Doe v. Bamford, 11 A. & E. 786. So, a witness who has a power of attorney from the plaintiff to receive the sum recovered, and admits his intention to deduct thereout a debt due from the plaintiff. Powell v. Gordon, 2 Esp. 735. So on an issue out of the Exchequer to try a modus in a district, an occupier within it is incompetent to support it. Stewart v. Barnes, 1 M. & Rob. 472.

Wherever a verdict for one of the parties to the record would be evidence for the witness in a subsequent action by him, he is incompetent to support the case of that party; and where such verdict would be evidence against the witness, he is incompetent for the opposite party. Thus, if he claims a customary right of common, he is incompetent to support the case of another person claiming under the same custom, for the verdict would be evidence for himself. Walton v.

Shelley, 1 T. R. 302. But it is otherwise where the right of common is claimed by prescription in a que estate. Harvey v. Collison, 2 Selw. N. P. 1118. In a suit to try a prescriptive right of toll on all fish landed in a certain cove, a fisherman frequenting the cove was held incompetent against the claim; Falmouth v. George, 5 Bing. 286.; for even though the pleadings do not set forth the right, yet the judgment, coupled with parol evidence of the question in issue, would be evidence against the witness. Ibid. 293. But see Lancum v. Lovell, post, p. 115. So, in trover by the lord for trees cut down by a copyholder, a copyholder cannot prove a customary right for copyholders to take timber for repairs. Le Fleming v. Simpson, 2 M. & R. 169. On an issue upon an occupation way, the occupier of part of the tenement to which the way belongs is incompetent to prove it. Parker v. Mitchell, 11 A. & E. 788. If the plaintiff has agreed with the witness that, in case he recovers the lands, the witness shall have a lease of them for so many years, the witness is incompetent for him; Gilb. Ev. 122.; for in an action by the witness on such agreement the judgment obtained on his own evidence would form part of his proofs. So a witness is incompetent for the plaintiff who is to repay a sum of money to the plaintiff if he fails, but to retain it if he succeeds. Fotheringham v. Greenwood, 1 Stra. 129.

In an action on the case for negligently driving a coach against the plaintiff's waggon-horse, whereby it died, it was held that the plaintiff's waggoner was incompetent to prove the negligence of the defendant without a release from his master; Morish v. Foote, 8 Taunt. 455. ; Sherman v. Barnes, 1 M. & Rob. 69.; at least, if there be any evidence of fault or negligence on the part of the plaintiff's servant; or if the case, as opened, is evidently one in which either the witness or the defendant must have been in fault. See the observations of the judges in Boorman v. Brown, 9 A. & E. 487. In the last-mentioned case, the issue was whether the defendant, a broker employed by the plaintiff to sell goods, had negligently delivered them without payment; it was held that the plaintiff could not call a servant of his own to prove that he, the witness, delivered them by defendant's authority; for the effect is to shift his own prima facie liability on the defendant. So in an action by the insured against the insurer of goods, where the defence was unseaworthiness, the shipowners cannot be called by the plaintiff. Protheroe v. Elton, cited 8 Taunt. 457.; S. C. 1 Peake, 117. In an action on the warranty of a horse, the person, who had previously sold it with warranty to the defendant, was held incompetent to show, in his behalf, that it was sound at the time of the first sale. Biss v. Mountain, 1 M. & Rob. 302., and note, ibid.

In an action against a master for the negligence of his servant, the servant was held incompetent to disprove the negligence, because the verdict would be evidence of the amount of damages in an action by the master against the servant; Green v. New River Company, 4 T. R. 589.; and so of an agent in an action against his principal for negli gence. Gevers v. Mainwaring, Holt, 139. So the broker who made the distress is incompetent for the defendant in an action for an excessive distress. Field v. Mitchell, 6 Esp. 73. So in trover against a sheriff, the officer who made the levy is not a competent witness for the defendant, though he is indemnified by the execution creditor. Whitehouse v. Atkinson, 3 C. & P. 344. But in an action against

a sheriff for negligently executing a writ, an assistant of the sheriff's officer, employed by the officer to execute the writ, was held competent for the sheriff without a release from the officer, on the ground that the verdict could not be used against the witness, as he was not employed by the defendant. Clark v. Lucas, R. & M. 32. In an action against the sheriff for an improper return to a fi. fa. stating a payment for arrears of rent which one of the plaintiff's witnesses denied to be due, the landlord was held not competent for the defendant to prove the rent due; for, if the action succeeded, the witness would be liable to the sheriff, and this judgment would be evidence of special damage. Keightley v. Birch, 3 Camp. 521.

If the judgment can be used in a subsequent action against the witness to establish the amount of costs, the whole or a portion of which the witness would be bound to pay, he is incompetent. Thus, bail cannot give evidence for their principal; Carter v. Pearce, 1 T. R. 164.; nor the wife of the bail; Cornish v. Pugh, 8 D. & R. 65.; nor a person who has paid money into the hands of the sheriff on behalf of the defendant in lieu of bail. Lacon v. Higgins, D. & R. N. P. C. 38.: S. C. 3 Stark. 184. To make the bail a witness, the party may apply to the court to have his name struck off on justifying other bail. Tidd, 264.; and see post, "Incompetency, how removed." On the same ground, where an infant sues, his prochein amy or guardian is not a competent witness for him. James v. Hatfeild, 1 Stra. 548. Gilb. Ev.

107.

It is well established that a person who has received money due from the defendant to the plaintiff is not competent for the defendant to prove that he received it as agent for the plaintiff, or in his own right, if his conduct has been such that he would be liable, in the event of a verdict for the plaintiff, to pay the defendant not only the money received but also the costs of that action on which the plaintiff should recover. Per Littledale J., in Larbalestier v. Clark, 1 B. & Ad. 902. It has been observed that this rule is easy of application where the witness is clearly liable over to one of the parties by his engagement, express or otherwise; as in the case of principal and surety, or of accommodation bills; but in other instances it tends to introduce collateral inquiries of considerable extent and difficulty, especially where misconduct in the nature of deceit is the alleged ground of the witness's liability. See note by the reporters, ibid. The inquiry is now become of less importance, in consequence of the statute hereafter to be mentioned.

An interested witness is rejected, though he himself is not aware that the facts, stated by him on the voire dire, give him any legal interest. Doe v. Bragg, R. & M. 87.

An insolvent is not a competent witness for the plaintiffs in an action by his assignees; for his future property is liable; Delafield v. Freeman, 4 C. & P. 67.; and the creditor of an insolvent who had assigned his effects to trustees, is said to have been rejected, as not a competent witness for the insolvent, in an action by a stranger against him, defended by the trustees; the witness admitting it to be doubtful whether the estate would pay 20s. in the pound. Crerer v. Sodo, 3 C. & P. 10. As to the competency of bankrupts, &c., see post, " Actions by Assignees of Bankrupts."

Statute 3 & 4 W. 4. c. 42. and its construction.] By sect. 26. of this statute, in order to render the rejection of witnesses on the ground of interest less frequent, it is enacted, that if any witness shall be objected to as incompetent on the ground that the verdict or judgment in the action, on which it shall be proposed to examine him, would be admissible in evidence for or against him, such witness shall nevertheless be examined; but in that case a verdict or judgment in that action, in favour of the party in whose behalf he shall have been examined, shall not be admissible in evidence for him or any one claiming under him; nor shall a verdict or judgment against the party, on whose behalf he shall have been examined, be admissible in evidence against him or any one claiming under him.

And, by sect. 27., the name of every witness objected to as incom petent on the ground that such verdict or judgment would be admissible in evidence for or against him, shall at the trial be indorsed on the record or document on which the trial shall be had, together with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party, and shall be afterwards entered on the record of the judgment; and such indorsement or entry shall be sufficient evidence that such witness was examined in any subsequent proceeding in which the verdict or judgment shall be offered in evidence.

Several cases, ruled at nisi prius shortly after the passing of this act, tended to restrict its operation, but it has been since construed with greater liberality. The object has been stated to be to supersede the necessity and save the expense of a release in the cases to which it applies; per Alderson B., in Yeomans v. Legh, 2 M. & W. 421. And an actual indorsement on the record is unnecessary; per Alderson B., in Rees v. Walters, 3 M. & W. 527. 529. In an action for negligent driving by defendant's servant, the servant was held to have been rendered competent for the defendant by this act without a release; for his only interest is that the verdict may be evidence of the damages in an action by his master against him; Yeomans v. Legh, 2 M. & W. 419. So where defendant in trespass justifies as servant of A. B., A. B. is competent for him under this act; Creevey v. Bowman, 1 M. & Rob. 496. So in an action against the specific legatee of a chattel, which the plaintiff asserted to belong to him and to have been left with the testator only on trial, the executor of the latter is rendered a competent witness for the plaintiff; for his only interest in the event is that if the plaintiff gets the value from the defendant, he cannot afterwards sue the witness for it. Bowman v. Willis, 3 New Ca. 669. Some recent cases, however, show that the effect of the statute is still unsettled. Thus the case of Boorman v. Brown, 9 A. & E. 487. cited antè, p. 109., appears to be at variance with Yeomans v. Legh; and the nisi prius cases of Stanley v. Jobson, 2 M. & Rob. 103., and Green v. Warburton, Id. 105., seem not reconcileable with Creevey v. Bowman. See also Jervis's New Rules, 420, 421., note (b), 4th ed.

The effect of the act seems to be equivalent to a release in cases where evidence of the verdict and judgment is essential in order to enforce the liability of the interested witness; thus in the case of Yeomans v. Legh, suprà, the master could not effectually sue his servant with a view to indemnify himself, without shewing the damages recovered in the former