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was only in case a fine was imposed that the witness could expect to derive any benefit, and that was uncertain, as depending upon the judgment of the court, but he was now of opinion that the objection went to the credit, and not to the competency of the witness. Cole's case, 1 Esp. 169; Peake, 217.

In many cases informers entitled to receive penalties, are, notwithstanding, made competent witnesses by the express provisions of various statutes. Thus by the 3 and 4 Wm. 4, c. 53, s. 118, for the prevention of smuggling, it is enacted, that if upon any trial a question shall arise, whether any person is an officer of the army, navy, or marines, being duly authorized and on full pay, or officer of customs or excise, evidence of his having acted as such shall be deemed sufficient, and such person shall not be required to produce his commission or deputation, unless sufficient proof shall be given to the contrary; and every such officer and any person acting in his aid or assistance, shall be deemed a competent witness upon the trial of any suit or information, on account of any seizure or penalty as aforesaid, notwithstanding such officer or other person may be entitled to the whole or any part of such seizure or penalty.

So in the statute 32 Geo. 3, c. 56, for preventing counterfeit certificates of servants' characters, and in 33 Geo. 3, c. 75, s. 17, and 1 and 2 Vict. c. 79, s. 26, for regulating hackney coaches, similar provisions rendering the informer competent are contained. So also by statute 27 Geo. 3, c. 29, the inhabitants of every parish, township, or place, shall be deemed and taken to be competent witnesses for the purpose of proving the commission of any offence within the limits of such parish, township, or place, notwithstanding the penalty incurred by such offence, or any part thereof, is or may be given, or applicable to the poor of such parish, township, or place, or otherwise, for the benefit or use, or in aid or exoneration of such parish, township, or place. Provided always, that nothing in this act contained, shall extend to any action or proceeding, in which the penalty or penalties to be recovered, shall exceed the sum of twenty pounds. See Davis's case, 6 T. R. 177.

[*133] *Where a penalty is imposed by statute, and the whole or part is given to the informer, who becomes entitled to it upon the conviction, he is an incompetent witness, unless rendered competent by the statute. Tilley's case, I Stra. 315; Stone's case, 2 Ld. Raym. 1545.

Inhabitants, when competent.] The rule with regard to the competency of inhabitants, is thus laid down by Chief Baron Gilbert. "The men of one county, city, hundred, town, corporation, or parish, are evidence in relation to the rights, privileges, immunities, and affairs of such town, &c., if they are not concerned in private interest, in relation thercto, nor advantaged by such rights and privileges, as they assert by their attestation. Men of a county are evidence on an indictment for not repairing a bridge, whether it be in repair or not, for they are perfectly indifferent, because it is equal to every man that the bridge, for convenience of passage, should be repaired where it is necessary, as that they should not be put to unnecessary charge; for every man, for the convenience of his own passage, is concerned to uphold the bridge, and cannot be thought to create a useless charge, so that he is perfectly indiferent, being equally interested; but the men of a county cannot be sworn in a cause relating to the bounds of the county, in a suit depending be

tween that and another county, carried on at the county charge, because every man is in such a case concerned to prevail in point of interest." Gilb. Ev. 126. Some doubt, however, existing with regard to the admissibility of the evidence of inhabitants, on indictments for not repairing decayed bridges and highways against private persons or bodies politic or corporate, the stat. 1 Ann. st. 1, c. 18, s. 13, reciting, that such witnesses had been rejected, enacts, that in all informations and indictments to be brought and tried in any of his Majesty's courts of record at Westminster, or at the assizes, or quarter sessions of the peace, the evidence of the inhabitants, being credible witnesses, or any of them, of the town, corporation, county, riding, or division, in which such decayed bridge or highway lies, shall be taken and admitted in all such cases in the courts aforesaid, any custom, rule, order, or usage to the contrary, notwithstanding.

The inhabitants of the hundred could not, before the stat. 8 Geo. 2, c. 16, s. 15, have been competent witnesses for the defence in an action on the (repealed) statute of Winton, Gilb. Ev. 127, but by the statute of Geo. 2 they were rendered competent.

By the 13 Geo. 3, c. 78, s. 76, any inhabitant of any parish, township, or place, in which any offence should be committed contrary to that act, should be deemed a competent witness, notwithstanding his or her being such inhabitant. And by sect. 68 the surveyor of any parish, township, or place, should be deemed in all cases a competent witness relative to the execution of the act, notwithstanding his salary might arise in part from the forfeitures and penalties thereby inflicted.

By the general rule of law the rated inhabitants of a parish are not competent witnesses for the defence, in an indictment for not *re- [ *134 ] pairing a highway. Dict. per Lord Ellenborough, 1 B. and A. 66; Phill. Ev. 134, 8th ed.; 1 Russ. 334; 2 Russ. 602. Upon an indictment against the inhabitants of a township, for not repairing a highway, the defendants pleaded that one R. was bound ratione tenure, to repair. To prove this, an inhabitant of the township was called, who was not an occupier of land there, and consequently not rated to the poor; but Lord Kenyon rejected him as being directly interested in the event of the 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 was liable to the statute duty. R. v. Inhab. Wheaton, Aston, Serjt. William's MSS.; 1 Stark. Ev. 144, 2d ed. But where a penalty was given to the poor of a parish, as the recovery of the penalties only went to relieve such persons as were actually rated to the relief of the poor, an inhabitant of the parish, though omitted from the rate, for the very purpose of giving evidence, was decided to be a competent witness. R. v. Inhab. Kirdford, 2 East, 559. So a parishioner paying rates was held to be a competent witness in an action defended by an order of vestry, directing the costs to be defrayed out of the rates, such order being illegal. Yates v. Lance, 6 Esp. 132 (1).

By the 54 Geo. 3, c. 107, s. 9, rated inhabitants are rendered compe

(1) Falls and al. v. Belknap, 2 Johns. 165. Canning v. Pinkham, Adams, 353. Orange v. Springfield, 1 Southard, 186. Schenck v. Corshen, 1 Coxe, 189. Maysville v. Shultz, 3 Dana, 11. Methodist Church v. Wood, Wright, 12. Stewart v. Saybrook, Id. 374. In an action by one state in the courts of another, the inhabitants of the state are competent. Connecticut v. Bradish, 14 Mass. 296. 1 Stark. Ev. New Ed. 145, note.

tent witnesses (among other things) " in any matter relating to such rates or cesses." There have been various contradictory decisions upon the effect of this statute, but it has recently been held (overruling Oxenden v. Palmer, 2 B. and Ad. 236 (a), and Rex v. Bp. Auckland, 1 A. and E. 744 (b);) that a rated inhabitant is a competent witness for his parish under the above act in an ejectment respecting parish property. Doe v. Adderley, 3 N. and P. 629; Doe v. Bowles, Id. 632.

By the recent Highway Act, 4 and 5 Wm. 4, c. 50 (repealing the 13 G. 3, c. 78, and other statutes) it is enacted, s. 100, that no person shall be deemed incompetent to give evidence, or be disqualified from giving testimony or evidence in any action, suit, prosecution, or other legal proceedings to be brought or had in any court of law or equity, or before any justice or justices of the peace, under or by virtue of that act, by reason of being an inhabitant (which by the interpretation clause, s. 5, includes any person rated to the highway rate) of the parish in which any offence shall be committed, or of being a treasurer, clerk, surveyor, district surveyor, or assistant surveyor, collector, or other officer appointed by virtue of that act, nor shall such testimony or evidence for any of the reasons aforesaid be rejected or liable to be questioned or set aside.

Also by the general Turnpike Act, 3 Geo. 4, c. 126, s. 137, any inhabitant of any parish, township, or place, in which any offence shall be committed contrary to that act shall not be deemed an incompetent witness by reason of being such inhabitant. And by the 4 Geo. 4, c. 95, s. 84, no person shall be deemed incompetent to give evidence in any action, suit, prosecution, or other legal proceedings to be brought or had in any court [*135] of law, or before any justice, under *or by virtue of any act for making or maintaining any turnpike road, or the 3 Geo. 4, c. 126, or that act, by reason of being a trustee or commissioner of such road, or a mortgagee or creditor of the tolls thereof, or a farmer, lessee, or collector of such tolls, or a treasurer, or clerk, or surveyor, or other officer under such act. See further, post, titles Bridges, Highways.

Bail incompetent.] In criminal as well as in civil cases, persons who have become bail are incompetent witnesses for the defence. Thus on the trial of John Hampden for a misdemeanor, Sir Henry Hobart was called as a witness for the defendant, and objected to on the ground of his being bail, and the objection was allowed; for the bail is exhonerated from his recognizance on the discharge of his principal; but it was said that the bail might be changed, in order to make him a good witness. Hampden's case, 3 St. Tr. 842, fo. ed.; 1 M'Nally, Ev. 59.

Interest, how removed.] Where the incompetency of a witness depends upon a pecuniary or other interest, with which he is capable of parting, it may be removed by a release or other proper mode. Thus before the passing of the 9 Geo. 4, c. 32, (which rendered the prosecutor in cases of forgery a competent witness, vide ante, 129) a release from the holder of a promissory note, to the supposed drawer, in whose name it was forged, rendered the latter a competent witness to prove the forgery. Akehurst's case, 1 Leach, 150. So if the supposed obligor of a bond had

(a) Eng. Com. L. Rep. xxii. 64. (b) Id. xxviii. 197.

been released by the supposed obligee. Dodd's case, 2 East, P. C. 1003; 1 Leach, 155 (1).

It may also be shown that the witness, though once interested, has become competent by payment, or other matter, discharging the interest. Thus where the party, whose name was forged to a receipt, had recovered the money from the prisoner, he was held to be competent. Well's case, B. N. P. 289; 12 Vin. Ab. 23; 1 Stark. Ev. 127, 2d ed. (2).

If the party wishing to call an interested witness, tenders a release to him, which the witness refuses, he may still be examined. Phill. Ev. 144, 8th ed.; 2 Russell, 378. So if the witness himself tenders a release. Bent v. Baker, 3 T. R. 35; Goodtitle v. Welford, Dougl. 139.

The 26th section of the act for the further amendment of the law, 3 and 4 Wm. 4, c. 42, relates only to the competency of persons called as witnesses on the trial of actions.

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General rule.] Husband and wife are in general incompetent witnesses, either for or against each other, on the ground partly of policy, and partly of identity of interest. The circumstance of one of the partics being called for or against the other, makes no distinction in the law. When the testimony of either is admissible against, it is likewise admissible in favor of, the other (3). Serjeant's case, Ry. and Moo. N. P. C. 352 (a). The declarations of husband and wife are subject to the same rule of exclusion as their viva voce testimony (4). See Phill. Ev. 172, 8th ed.

Barnes v. Ball, 1 Mass. 73. A

(1) The release to the witness is conclusive to the Court. release after deposition taken does not render it admissible. Heyl v. Burling, 1 Caines, 14. Nor after examination. Doty v. Wilson, 14 Johns. 378. But the witness must be re-examined. City Council v. Haywood, 2 Nott & MC. 308. Wynn & ux. v. Williams, 1 Miner's (Ala.) Rep. 136. Ten Eyck v. Bill, 5 Wend. 55.

(2) Where a witness acknowledged himself to have been once interested, he was held incompetent to prove his own discharge. Den v. Jones, 1 Coxe, 46. Fay & al. v. Green, 1 Aik 71. So he cannot prove that he became interested after the event by his own voluntary act or the act of another. Gill's Will, 2 Dana, 448; but quære, see post, and contra, Trenchard v. Elderkin, 3 Louis. 294.

Terry v. Belcher, 1 action of book debt. detainer, the wife of Resp. v. Shryber, 1 her a good witness.

(3) Snyder & al. v. Snyder, 6 Binn. 488. Daniel v. Proctor & al. 1 Devereux, 428; Higden v. Higden, 6 J. J. Marshall, 53. Though separated by articles. Bailey, 563. But she has been held competent for her husband in an Stanton v. Wilson & al. 3 Day's Cases, 37. And in forcible entry and the prosecutor is a good witness to prove the force, but only the force. Dall. 68. A release to baron and feme, he being absent, will make Commonwealth v. Briggs, 5 Pick. 429. (4) Burger v. Tribble, 2 Dana, 383. Moody v. Fulmer, Wharton's Dig. 308. Smith v. Scudder, 11 S. & R. 325. Sacket v. May, 3 Dana, 80. Unless they form a part of the res (a) Eng. Com. L. Rep. xxi. 453.

But although neither the evidence nor the declaration of a wife are admissible against the husband on a criminal charge, yet observations made by her to him upon the subject of the offence, to which he gives no answer, or an evasive reply, are receivable in evidence as an implied admission on his part. Smithies' case, 5 C. and P. 332 (a); Bartlett's case, 7 C. and P. 832 (b). So what a prisoner is overheard to say to his wife, or to himself, is evidence against him. Simon's case, 6 C. and P. 510 (c).

In a civil case, Lord Hardwicke refused to permit the plaintiff's wife to be examined, though with the consent of the defendant; Barker v. Dixie, cases temp. Hard. 264 ; but in a later case, (where the above decision was not cited,) Best, C. J., said, he would permit the defendant's wife to be examined with the consent of her husband, who, however, refused to give, it. Pedley r. Wellesley, 3 C. and P. 558 (d).

Where the relation of husband and wife has once subsisted, the one is inadmissible for or against the other, even after the relation has ceased, with respect to matters which occurred during the continuance of the relation (1). Thus, where a woman, divorced by act of parliament, and married again, was called to prove a contract by her former husband, she was rejected by Lord Alvanley. If she might be a witness, his Lordship observed, in a civil proceeding, she might equally be so in a criminal proceeding; and it never could be endured, that the confidence which the law had created, whilst the parties remained in the most intimate of all relations, should be broken, whenever by the misconduct of one party the [ *137 ] *relation has been dissolved. Monroe v. Twisleton, Peake, Ev. App. xci, 5th ed. Upon the authority of this case, Best, C. J., rejected the testimony of a widow called to prove a conversation between herself and her late husband. Doker v. Hasler, Ry, and M. N. P. C. 198 (e); sed vide Beveridge v. Minter, 1 C. and P. 364 (ƒ), where Lord Tenterden, C. J., received the evidence.

Only extends to lawful husband and wife.] It is only where there has been a valid marriage, that the parties are excluded from giving evidence for or against each other. Therefore, on an indictment for bigamy, after proof of the first marriage, the second wife is a competent witness against the husband, for the marriage is void. B. N. P. 287; Bac. Ab. Ev. A. 1; 1 East, P. C. 469.

So where a woman had married the plaintiff, and lived with him as his wife during the time of the transaction to which she was called to speak, but had left him on the return of a former husband, who had been absent from England upwards of thirty years, and was supposed to be dead; Patteson, J., held that there was no objection to her giving evidence for the defendant. Wells v. Fisher, 1 Moo. and R. 99, S. C. 5 C. and P. 12(g).

gesta. Park v. Hopkins, 2 Bailey, 408. Thomas v. Hargrave, Wright's Rep 595. On an indictment against husband and wife, her admissions are good against herself, but not against him. Commonwealth v. Briggs, 5 Pick. 429.

(1) State v. J. N. B. 1 Tyler, 36. State v. Phelps, 2 Tyler, 374. A widow is not permitted to testify to declarations made by her husband during coverture, to contradict and impeach the testimony given by him on a former trial between the parties. Edgell v. Bennett & al. 7 Verm. 534. She is however a competent witness as to facts which happened during coverture, although it would not have been competent for her husband to have testified to them if living. lbid. Coffin v. Jones, 13 Pick. 441.

(a) Eng. Com. L. Rep. xxiv. 345.
(e) Id. xxi 416.

(b) Id. xxxii. 759.
(ƒ) Id. xi. 421.

(c) Id. xxv. 532. (d) Id. xiv. 448. (g) Id. xxiv. 198.


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