Page images


rectly interested in the event of that suit, because if there should be a verdict against the defendants, the witness, as an inhabitant, would be liable to the payment of the fine; and also any inhabitant is bound to do statute duty. From the MSS. of Mr. Serjeant Wil

liams. S. C. cited 2 Saund. 159. Rateable in- Rated parishioners were always considered incompetent to give habitants for evidence for their parish in appeals against orders of removal, on the merly incom

ground that they were directly and immediately interested in the petent on ap

event of the proceeding, by which the maintenance of the pauper peals, &c.

and the costs of the appeal might be fixed upon their parish, and have the effect of increasing their proportion of the rates. Rev. Prosser, 4 T. R. 19. Rex v. South Lynn, 5 T. R. 667. Kirdford, 2 East, 561.

And it was determined by the court of K. B. that, on an appeal against an order of removal, if the appellants proved a settlement in a third parish, the rated inhabitants of that parish were not competent witnesses for the respondents to disprove it; as the confirmation of the order of removal would be conclusive evidence for the inhabitants of the third parish, that the settlement of the pauper was at that time in the appellant parish. Rex v. Terringtor 15

East, 471. 54 G. 3. c. 170. But these objections are removed by stat. 54 G. 3.e. 170.59, Inhabitants not which enacts that “no inhabitant or person rated or liable to be incompetent

rated to any rates or cesses of any district, parish, township or witnesses in behalf of or

hamlet, or wholly or in part maintained or supported thereby, er against their

executing or holding any office thereof or therein, shall before any parislies, in any court or person or persons whatsoever, be deemed and taken to be matter relating by reason thereof an incompetent witness for or against such dis

trict, parish, township or hamlet, in any matter relating to such

rates or cesses; or to the boundary between such district, parish, boundary, or order of re

township or hamlet, and any adjoining district, parish, township or inoval, or set. hamlet; or to any order of removal to or from such district, parish, tlement, or township, or hamlet; or the settlement of any pauper in such discharge of bas.

trict, parish, township or hamlet; or touching any bastards chargetards, or election of officers,

able or likely to become chargeable to such district, parish, town, or allowance of ship or hamlet; or the recovery of any sum or sums for the charges accounts or maintenance of such bastards; or the election or appointment

of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township or hamlet

, any law, usage, statute, or custom to the contrary in anywise notwithstanding." (a)

to the rates or cesses, or

(a) Before the passing of this act it had been determined on an appeal sguast a poor-rate, because certain persons were not rated, that a parishioner, who was liable to be rated, but not in fact rated, was a competent witness to prove the rateability of the persons omitted. Rer v. Prosser, 4 T. R. 17. Peake's Ex. 157, 158.

So also an inhabitant, who was not rated, was a competent witness on so ap peal between his own parish and another. Rer v. Little Lumley, 6 T. R. 157. Though left out of the rate for the mere purpose of making him a witness Ra v. Inh. of Xirdford, 2 East, 559. But where his son was rated for the property held by him he was deemed incompetent. Rex v. Killerby, 10 East

, see Peake's Ev. 158.

A parishioner paying rates was held to be a competent witness in an action defended by an order of restry, directing the costs to be defrayed out of the rstes, such order being illegal. Yales V. Lance, 6 Esp. 132.

On the construction of that part of this statute which refers Decisions on “ to any matter relating to such rates or cesses,” the authorities this statute. appear to be in some degree unsettled and conflicting.

Meredith v. Gilpin and others, M. 59 G. 3., 6 Price, 146., in an action of trespass against the overseers of a township, where the principal point was, whether the lands in question were vested in the overseers under a local act of parliament, the Court of Exchequer determined that a rated inhabitant of the township was not an incompetent witness on the part of the defendants, although the land in question, if vested in the defendants, would be vested in trust for the township, and in aid of the poor-rates. In this case the Court of Exchequer considered the matter in issue as one relating to the rates.

In Marsden v. Stansfield, H. 1828., 7 B. &. C. 815., it was held by the court of K. B. that upon an issue whether a certain messuage was situate within a chapelry, a person who occupied rateable property within the chapelry was a competent witness to prove that it was.

Bayley J. said that the substantial question in the case was, whether the owner of certain property was liable to contribute to the rates of the chapelry; and that was a question relating to the rates or cesses of the district within the stat. 59 G. 3. c. 170. $ 9.; and the question whether certain land was situate within the chapelry was a matter relating to the boundary between the district and the adjoining district.

Again, in Heudebourck v. Langston, Mood. & Malk. 402., n.(), tried at Westminster, April 25. 1829, which was an action of debt by the new surveyor of the highways against the preceding one, to recover the penalty under the Highway Act then in operation, for not accounting, with counts for money had and received, to recover the balance, Lord Tenterden ruled, after objection and argument, that the statute rendered the inhabitants competent for the plaintiff, although their evidence would tend to increase the funds in relief of the rates.

And in Rex v. Hayman, 1 Mood. & Malk. 401., which was an indictment tried at Exeter, August 14. 1829, for the non-repair of a bridge on a liability ratione tenure, with a count for the nonrepair of a highway by reason of the same tenure, Tindal C. J. ruled, that rated inhabitants of the parish in which the bridge and highway were situate were competent witnesses for the prosecution, being of opinion that they were within the scope of the statute. (But this must be considered as overruled by Rex v. Bishop Auckland, post, p. 1034.)

So in Doe v. Cookell, 6 C. & P. 525., which was an ejectment, tried at the Berkshire Summer Assizes 1834, and brought by churchwardens and overseers to recover a house alleged by them to be a parish house, Alderson B. held that an occupier of rateable property within the parish was a competent witness for the plaintiffs. The learned judge observed, that the statute 54 G. 3. c. 170. § 9. says, that the party shall not be incompetent in any matter relating to rates or cesses; and that the only way in which the interest of the proposed witness could be affected was by his evidence tending to recover property, the proceeds of which would diminish the rates or cesses.

On the other hand, in Orenden v. Palmer, E. 1831., 2 B. & Adol. 236., the court of K. B. held, that a person who pays highway rate

within a parish is not rendered a competent witness by the statute on trial of an issue, whether within that parish there is a custom that all persons residing therein, whose duty it is to cause the highways within the parish to be repaired, may take shingle from the sea-beach for the purpose of such repair; the custom not being, in the opinion of that court, a matter relating to rates or cesses within the meaning of the act.— And Ld. Tenterden in delivering judgment said, that the court entertained great doubts whether Meredith v. Gilpin (suprà, p. 1033.) was properly decided, and whether, even there, the matter could properly be said to concern the poor-rate within the meaning of the act of parliament. “ The great object,” his lordship added, " of that act was the poor. Their maintenance and regulation was the matter principally in the view of the legislature. The question raised in the present case was not one which in any degree related to the maintenance of the poor, but to an object perfectly distinct; it was not a case, therefore, within the general mischief contemplated by the legislature, and recited in the preamble. Still the words of the ninth section are large enough to embrace objects not within the preamble; and taken by themselves, they would seem to render any person, liable to be rated to any rates or cesses of any parish, a competent witness for or against such parish in any manner relating to such rates and cesses. We cannot, however, say, that the question as to the existence of the custom to take shingle from the sea-beach for the purpose of repairing the highways in the parish, was one which did properly and strictly relate to rates or cesses of the parish, within the meaning of this act of parliament; and if it be not strictly and properly a matter relating to them, it is clear that the persons tendered as witnesses were not rendered competent by the statute. The custom which was the matter in issue, if it had been established, would not have affected any rate already made; and although it might affect future bighway rates, we think that it was not on that account a matter relating to rates or cesses within the meaning of this act of parliament.".

Accordingly in Rex v. Inhabitants of Bishop Auckland, 1 Mood. & Rob. 286., tried at Durham Summer Assizes 1833, which was an indictment against the township of B. A. for not repairing a highway, Bolland B. held, on the authority of Oxenden v. Palmer, that an inhabitant of the township, rated to the highway-rate, was not a competent witness for the defendants. And when another indictment against the inhabitants of the same township came on to be tried at the Spring Assizes 1834, Alderson B. rejected the evidence of inhabitants, as well those who were only liable to be rated as those who were actually on the rate, observing that the safest way was to abide by the words of the statute, and that he could not say, looking to those words, that the present was “a matter relating to the rates or cesses." And this decision was confirmed by the court of K. B., on an application for a new trial. 1 Adol. & EU. 744.

The latest decision on the subject is Tothill v. Hooper, 1 Mood. & Rob. 392., tried at Exeter Summer Assizes, 1834. That was an action of assumpsit by an apothecary against an assistant overseer of a parish, who had directed him to attend a pauper lying sick under a suspended order of removal. The defendant resisted the action, by an order of vestry, on the ground of the unreason

ableness of the charges, and offered the testimony of a rated pa- Tothill v. rishioner, who had signed the order of vestry. It was objected, on Hooper. the part of the plaintiff, that the witness was inadmissible, and that this was not a case in which the stat. 5+ G. 3. c. 170. § 9. had removed his incompetency. – Ld. Denman C. J. held that the statute was inapplicable, and rejected the witness.

In Rhodes v. Ainsworth, M. 1817., 1 B. & A. 87., an issue had been directed to try whether the inhabitants of the chapelry of Milne Row, at their own exclusive costs and charges, had immemorially repaired the chapel ; the affirmative of that issue lay on the plaintiff

, and his case having been closed, the defendants called a witness who was an owner of a tenement in the chapelry, which tenement was then in the hands of a tenant who was rated for the same and had paid the rates, having agreed to pay his rent without any deduction, under a lease of which many years of the term were then unexpired. The owner's name did not appear on the rate, and he resided in a different county. This witness was objected to on the ground of interest, and rejected by Wood B. at the trial at Lancaster summer assizes 1817. A new trial was moved for on the authority of Rex v. Kirdford, 2 East, 559. (suprà, p. 1032. n. (a), by which the principle is established, that to render a witness incompetent, his interest must be actually existing at the time, and not one that is expected. But the court held that the witness was properly rejected, having an interest in the event of the suit. The rate in question was a perpetual burden on the estate, and he as owner had an immediate interest in removing from that property a burden which went permanently to diminish the value. It is not necessary that the witness should be actually rated in order to render him incompetent; for the question is, whether he is a person coming to give evidence on a matter in which he is interested ? and if he is, the law deems him incompetent.Abbott J. observed, that the case cited was that of a mere occupier not having any permanent interest. [It must be observed that in this case the statute 54 G.3. c. 170. $ 9. does not appear to have been in any way brought to the attention of the court.)

In actions against churchwardens or overseers of a parish for 3 W. 3. c. 11. the recovery of money misspent by them, inhabitants of the parish, who do not receive alms or any gift out of the parochial collection, are made competent witnesses by stat. 3 W. 3. c. 11. $ 12.

By stat. 27 G. 3. c. 29., where pecuniary penalties, or parts 27 G. S. c. 29. thereof, are given to the poor, the inhabitant of any place may be a competent witness to prove an offence, though the place may be benefited by the conviction of the offender, provided the penalty does not exceed 201. Rex v. Davis, 6 T. R. 177.

Upon an appeal against an order of removal, the respondents Whether inbacalled as a witness a rated inhabitant of the appellant parish, bitants are not who refused to give evidence: the sessions thought he was not compellable to compellable to do so. The court of K. B. held that the inhabitants give evidence of a parish, paying rates, were the parties grieved and interested against their

own parish. in the event of the proceedings; that it was a long-established rule of evidence that a party to a suit cannot be called upon against his will by the opposite party to give evidence. Therefore the sessions were right in their determination. Rex v. Woburn, 10 East, 395.

But it must be observed, that this decision was before the stat. 54 G. 3. c. 170. (suprà, p. 1032.), by which it is provided, that in respect of certain matters, no rated inhabitant of a parish shall be

deemed an incompetent witness for or against such parish. Admissibility of See infrà, $11., as to the admissibility in evidence of the declaratheir declara- tions of one rated inhabitant of a parish against the other inhabitants. tions against Where by a local act the directors and overseers of the poor were their parish.

enabled to sue and be sued in the name of their clerk, it was held, Competency of in an action against the clerk, on a contract made by the directors, parish officer when parish

that a director was thereby rendered a competent witness for the officers are

defence, like any other inhabitant. Fletcher v. Greenwell, 1 Cr. M. sued in the & R. 755. S. C. 5 Tyrwh. 316. name of their

It has been already observed, that no tie of relationship will clerk.

create an interest disqualifying as a witness, except that of husHusband and

band and wife. They cannot be admitted to be witnesses either wife;

for or against each other; for, since their interests are absolutely for each other; the same, they cannot swear for the benefit of each other, any

more than a man can attest for himself; Gilb. Ev. 119. 2 Hark. P.C. c. 46. §. 70.; therefore, the wife of a prisoner cannot give evidence for him, nor for any one of several others indicted with him, where a joint offence, as a conspiracy, is charged, and an acquittal of all the others would be a ground of discharge for her husband. Rez v. Locker, 5 Esp. 107. The law is the same on an indictment for an assault, where the cases of the co-defendants cannot be separated. Rex v. Frederick, 2 Stra. 1095. So in Rex v. Smith, Cobbey, and Draper, 1 Mood. 289., the prisoners were tried before Mr. J. Littledale at the Spring Assizes, in the year 1826, for the county of Lincola, on an indictment for burglary : Cobbey and Draper in their defence each set up an alibi : Draper, after having called and examined one witness to prove an alibi on his part, proposed to call his daughter in further proof of the alibi set up by him; but it appearing that she was the wife of the prisoner Smith, the learned judge thought that she could not be examined as a witness, and did not receive her evidence; for though she only came to speak as to Draper being at one place, which had nothing to do with Smith being concerned in the offence, yet her evidence would go to shew that the witness for the prosecution was mistaken as to Draper, and then if she was mistaken as to one it would weaken her evidence altogether, and by that means the witness proposed to be called by Draper might benefit her husband: The prisoners were all acquitted of the capital part of the charge, but found guilty of grand larceny, and the learned judge passed sentence upon them: After the trial the learned judge had doubts whether he did right in rejecting the evidence of Draper's daughter, and therefore he submitted this case for the opinion of the judges: This case was considered in Easter term 1826 at a meeting of all the judges, and they all thought her not competent (except Graham B. and Littledale J.), and that the conviction was right. This case was cited by Gazelee J., and acted upon at a meeting of the judges in Hood's case, 1 Mood. 281., where, on an indictment against Hond and two other persons for stabbing with intent to prevent Hoods apprehension, it was held that the wife of one of the other prisoners

was incompetent. against each Husband and wife cannot be witnesses against each other, by other;

reason of the dissensions and distrusts that it would occasion, inconsistent with the happiness of married life and the peace of fo vilies.

« EelmineJätka »