competent witness, to prove that he endeavoured to make the arrest (2). So, in an action by an infant plaintiff, his prochein amy or guardian are not competent witnesses for him, as they are liable to costs (3). So, in an action against a master, for the negligence of his servant, the servant is not a competent witness to disprove his own negligence; for the verdict may be given in evidence, in a subsequent action by the master against the servant, as to the quantum of the damages, though not as to the fact of the injury (4). So, in an action of assumpsit for goods sold and delivered, the plaintiff having proved the sale of the goods to the defendant and one J. S. who were partners in trade, Lord Kenyon held that J. S. could not be a witness 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; for, said Lord Kenyon, by discharging the defendant he benefits himself, as he will be liable to pay a share of the costs to be recovered by the plaintiff (5) (a). So, in an action by an indorsee against the *acceptor of a bill of exchange, which had been accepted for the accommodation of the drawer, the drawer is not a competent witness for the defendant to prove that the holder took the bill for an usurious consideration (6). This was lately determined in the case of Jones v. Brooke (1). The Court of Common Pleas there held, that the witness was interested to defeat the action; for, if the holder should succeed against the

(2) Powell v. Hord, 2 Ld. Raym. 1411.; 1 Str. 650. S. C. 3 Camp. 523, (3) James v. Hatfield, 1 Str. 548. Hopkins v. Neal, 2 Str. 1026. Gilb. Εν. 107.

(5) Goodacre v. Breame, Peake N. P. C. 174,

(1) 4 Taunt. 464. Maundrel v. Kennet, 1 Campb. 408. See also Trelawny v. Thomas, 1 H. BI. 306. and Ball v. Bostock, 1 Str. 575. as of witnesses lia

to the incompetency Her ble to costs.

(4) Green v. New R. Company, 4 T. R. 589. Martin v. Henrickson, 2 Ld. Raym. 1007. Miller v. Falconer, 1 Campb. 251. 15 East 474. 3 Campb. 516.

(a) Vide Young v. Bairner, 1 Esp. 103. (b) Vide Cowles v. Wilcox, 4 Day 108.

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acceptor, the acceptor would not only have a right of action against the drawer for the principal sum, but also for all damages, which as acceptor he might sustain in being sued upon the bill; the drawer of an accommodation bill being bound to indemnify the acceptor against the consequences of his acceptance for the drawer's accommodation (a).

(a) So, in an action on a policy of insurance to recover for a loss by barratry, Lord Kenyon held that the captain was an incompetent witness to disprove the fact of barratry, as by defeating the plaintiff's action he would discharge himself from his liability over to the underwriter. Bird v. Thompson, 1 Esp. 337. And, on the other hand, if the witness by charging the defendant, would exonerate himself from a liability, he is incompetent. Rotheroe et al. v. Elton, Peake 84. Sheldon v. Ackley, 4 Day 458. Emerton v. Andrews, 4 Mass. Rep. 653. 2 Mass. Rep. 444. Upon the principle that a witness is incompetent, who is interested to defeat the plaintiff's action, because in case the plaintiff recovered he would be liable to the defendant in a suit in which the record in the previous action would be evidence against him, a grantor, who has conveyed land with warranty, is inadmissible in support of his grantee's title. Jackson d. Caldwell v. Hallenback, 2 Johns. Rep. 394. Swift v. Dean, 6 Johns. Rep. 523. Moon v. Campbell, 1 Mun. 600. Abby v. Goodrich, 3 Day 433. So, a lessor is incompetent to support the title of his lessee, as in case the defendant were evicted, he would be liable on the implied covenant in the word demised. Smith v. Chambers, 4 Esp. 164. So, the vendor of a chattel is not a competent witness, in an action against the vendee, there being an implied warranty of title in every sale of personal property. Heermance v. Vernoy, 6 Johns. Rep. 5. But a grantor without covenant of title or warranty is admissible to prove the title of the grantee. Busby v. Greenslate, 1 Str. 445. So, a grantor who has warranted merely against persons claiming under himself, is a competent witness for the grantee against a party not claiming under the witness. Twambly v. Henley, 4 Mass. Rep. 441. Lessee of Gratz v. Ewalt, 2 Binney 95. Lessee of Cain v. Kinderson, Id. 108. Lessee of Henry v. Morgan, Id. 500. Lessee of Sweitzer v. Meese & others, 6 Binney 500. And a grantor, with warranty, is a competent Upon the same principle it has been determined, that, on an appeal against an order of removal, if the appellants prove a settlement in a third parish, the rated inhabitants of that parish are 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 (2). It would indeed be quite as conclusive in favour of any other parish in the kingdom; so that the proposed witness had a greater interest in the question than any other person, only in proportion as there was a greater probability, that, if the appellants failed in this appeal, they would afterwards remove the pauper to his parish. Such an objection, however, is now removed by the statute 54 G. 3. c. 170. the 9th section of which enacts, "that no inhabitant or person rated or liable to be rated to any rates of any district, parish, &c., shall be deemed to be by reason thereof an incompetent witness for or against such district, &c., in any matter relating to such rates, or to any order of removal to or from such district, &c., or to the *settlement of the pauper in such district." Before this provision, it had been decided, that inhabitants would not be incompetent merely from having rateable property in the parish, if it did not appear that the proper

ty was actually rated at the time of the appeal; and this, although it was omitted in the rate, for the very purpose of introducing their evidence (1). The Court held, that in order to disqualify a witness, there must be an actual existing interest at the time, not merely one that is expectant and contingent; and that, by taking the witness off the rate, his immediate interest was so far taken away, that it

(2) R. v. Terrington, 15 East 471. v. Little Lumley, 6 T. R. 157. R. (1) R. v. Prosser, 4T. R. 17. R. v. Kirdford, 2 East 561.

witness in an action of trespass by the grantee, although the defendant justifies under a right of freehold. Van Nuys v. Terhune, 3 Johns. Cas. 82.

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could not render him incompetent, whatever objections might still be made against his credibility (a).

In an action of ejectment, the tenant in possession, upon whom an ejectment has been served, is not a competent witness in support of the title of the defendant under whom he holds (b); for he is liable to the mesne profits, and the verdict in ejectment would be evidence against him in an action to recover them (2). So a witness, to whom the lessor of the plaintiff has agreed to demise the lands in question, in case

(2) Bourne v. Turner, 1 Str. 632. Doe d. Forster v. Williams, Cowp. 621.

(a) But it has been held that a parishioner who had property which was rated not in his own, but in his son's name, for the purpose of making him a witness, was incompetent to prove the pauper's settlement in another parish. R. v. Killerby, 10 East's Rep. 292. In an action of debt on a bastardy bond to the overseers of the poor of the town of New-Windsor, it was held that the liability of a witness, on the part of the plaintiff, to be rated for the support of the poor of the town of New-Windsor, was too remote and contingent an interest to render him incompetent. Falls & Smith v. Belknap, 1 Johns. Rep. 486. So, where a qui tam action is brought before a justice of the peace to recover a penalty, the one half of which, when recovered, would go to the support of the poor of the town of which the justice is an inhabitant, this is not such an interest in the cause as will render the justice incompetent to try it. Corwein v. Hames, 11 Johns. Rep. 76. Nor is it an objection against a witness for the plaintiff, that the penalty, when recovered, is to be appropriated to the support of the poor of a town in which he is an inhabitant paying taxes for that purpose. Bloodgood v. Overseers of Jamaica, 12 Johns. Rep. 285.

(b) He is incompetent to show that himself and not the defendant was tenant in possession; for he has an immediate interest in preventing a recovery, for the purpose of protecting his own possession; this seems to be considered a question sui generis, partly an interest in the question and partly an interest in the event: and it is one of those cases in which reason and sound policy lead to the exclusion of the witness, as from the nature of the fact there can be no inconvenience in requiring other proof, which it must always be in the power of the party to produce. Brant d. Van Cortlandt & others v. Dyckman, 1 Johns. Cas. 275. Jackson d. Van Den Bergh v. Trusdell, 12 Johns. Rep. 246. post 52.

he shall recover them by the verdict in ejectment, would not be competent to give evidence against the defendant; because, in an action for the non-performance of that agreement, the verdict would be evidence for him to prove the fact of the lands having been recovered. To this effect Ch. B. Gilbert has laid it down (3), that if a man promise a witness, that in case he recover the lands he shall have a lease of them for so many years, this excludes the evidence, for then the witness would have a fixed and certain advantage by the event of the verdict. So a witness has been rejected, who, if the plaintiff failed in the action, was to repay a sum of money in his hands belonging to the plaintiff, but was not to repay any part of it, if the plaintiff suc*ceeded (1) (a). And in the case of Forrester v. Pigou (2), an action on a policy of insurance, where the defendant called another underwriter as witness, who in his examination on the voire dire said, 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 in that event, Lord Ellenborough, C. J. on the trial rejected the witness. On a motion afterwards for a new trial on account of this rejection, the Court sent the case to be retried, 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 beforehand, upon a condition that it is to be determined by the event of that suit, he becomes as much interested in the event as if he were a party to a consolidation rule."

The rule, that a witness is not competent, if the verdict can be given in evidence either for or against him in a

(3) Gilb. Ev. 108. citing a dictum

of Twisden, J. in 1 Mod. 21.

(1) Fotheringham v. Greenwood,

1 Str. 129.

(2) 1 Maule & Sel. 9.

(a) Vide Owen v. Mann, 2 Day 399.

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