sons *to prove the forgery of an instrument which they have signed as subscribing witnesses, clearly show, that a man's guilt in the transaction disclosed is not a sufficient reason for rejecting his testimony, however it may affect his credibility. In the case of Walton v. Shelley (1), which was an action upon a bond given by the defendant, in consideration of delivering up certain promissory notes, the Court of King's Bench held that the indorser of one of the notes ought not to be allowed to prove the consideration of the note usurious, on a supposed principle of public policy, "that no party who had signed a paper or deed shall ever be permitted to give testimony to invalidate that instrument; because every man, it was said, who is a party to an instrument, gives a credit to it: And it is of consequence to mankind, that no person should hang out false colours to deceive them, by first affixing his signature to a paper, and afterwards by giving evidence to invalidate it (a)." This appears to have been the first case in support of such a rule. In the latter case of Jordaine v. Lashbrooke (2), this subject was very fully discussed; and the Court there determined, that in an action on a bill of exchange against the acceptor, the payee, (who was also indorser), was a competent witness for the defendant to prove, that the bill which was unstamped, and purported to be drawn at Hamburgh, was in fact drawn in London, and, therefore, void for the want of a stamp (b). "I find no rule, said Mr. (1) 1 T. R. 296.

(2) 7 T. R. 601, Ashurst, J. contra. See 4 Taunt. 464.

(a) It has been held, in South Carolina, on the authority of Walton v. Shelly, that the obligee of a bond who had assigned it, in an action by the assignee against the obligor, was not a competent witness to prove payment. Canty v. Sumter, 2 Bay 93. In this case the witness was also party to the record, but no objection appears to have been made on that ground.

(b) In Adams v. Lingard et al. Peake 117, the question in which was exactly the same as in the subsequent case of Jordaine v. Lashbrooke, Lord Kenyon was of opinion, that the indorser was a competent witness to prove that a bill dated at Madeira, was in

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Justice Lawrence in delivering his opinion, less comprehensive than this, that all persons are admissible witnesses, who have the use of their reason and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and are not influenced by interest. Under none of these classes does the witness in this case fall. Whether a defendant shall be allowed to set up such a defence is quite another consideration, than whether the witness be competent. It certainly is of con*sequence to prevent men from hanging out false colours : but this must be applied to the parties in the cause, or you may prejudice men who have not hung out such colours (a)."

fact drawn in London. Et vide Buckland v. Tankard, 5 Term Rep. 579, per Lord Kenyon. Rich v. Topping, 1 Esp. 176. S. C. Peake's case, 224, per Lord Kenyon, who denies the authority of Walton v. Shelly but he is opposed by Buller, J. in Hart v. M'Intosh, 1 Esp. 298, Bent v. Baker, 3 Term. Rep. 36. Phetheon v. Whitmore, Peake 40, and Adams v. Lingard et al. Peake 118. In 1 Esp. 177. Lord Kenyon denies that he ever used the words imputed to him in 3 Term. Rep. 34. viz. that where a person has signed a negotiable instrument, he shall not be permitted to invalidate it by his testimony. In Jones v. Brook, 4 Taunt. 464. cited post 47. the Court of C. B. expressly recognize the admissibility of a party to a negotiable instrument to impeach it.

239.

(a) The rule adopted by the courts of New-York, Pennsylvania, and Massachusetts is, that a party to a negotiable instrument is incompetent to prove it to have, originally, been void. Winton v. Saidler, 3 Johns. Cas. 185. Coleman v. Wise & others, 2 Johns. Rep. 165. Stille v. Lynch, 2 Dall. 194. Respublica v. Ross, Ib. Warren v. Merry, 3 Mass. Rep. 27. Parker v. Lovejoy, Ib. 565. Churchill v. Suter, 4 Mass. Rep. 156. Putnam v. Churchill, Ib. 516. Widgery v. Munroe & another, 6 Mass. Rep. 449. Jones v. Coolidge, 7 Mass. Rep. 199. This question has been discussed in the Supreme Court of the United States, but no opinion given on the point, further than a dictum of Chase, J. :— "Upon the statute of gaming, usury, and the like, but in no other case, are the drawers, indorsers, &c. competent witnesses. The

CHAP. V.

Of the Incompetency of Witnesses from Interest.

THE fourth ground of incompetency is on account of in terest. It is a general rule, that all witnesses interested in the event of the cause are to be excluded from giving

cases all show it." Wilson v. Lenox, 1 Cranch 201. Vide post 39. n. (a). I cannot find that there has been any decision on the subject in Virginia. In Baring v. Reeder, 1 Hen. & Mun. 154., one of the judges expresses his opinion strongly in favour of the doctrine, in Walton v. Shelly, while another hints a preference to that of Jordaine v. Lashbrooke. In Connecticut the law is still unsettled. Swift's Ev. 96. et seq. Et vide Allen v. Holkins, 1 Day 17. Webb v. Danforth, Ib. 301. The rule in Walton v. Shelly, was, in England, soon after the decision in that case, limited to ne gotiable instruments. Bent v. Baker, 3 Term Rep. 32. 36. and excepting the case cited ante 33 n. (a) the courts in this country, have resisted every attempt to extend it to instruments not nego. tiable. Steinback v. Rhinelander, 3 Johns. Cas. 269. Pleasants v. Pemberton, 2 Dall. 196. Baring v. Shippen, 2 Binney 154. Brown v. Babcock, 3 Mass. Rep. 29. Storer v. Logan & others, 9 Mass. Rep. 55. ante 32. n. (a). And a party to a negotiable instrument may testify to subsequent facts which do not prove it to have been originally void, as payment:-Charrington v. Miller, Peake 6. Humphrey v. Moxon, Ib. 52. Warren v. Merry, 3 Mass. Rep. 27. White v. Kibbing, 11 Johns. Rep. 128.-that the note was indorsed after it became due. Baker & Rowlson v. Arnold, 1 Caines' Rep. 258.—that the date had been altered. Levy v. Essex, Chitty on Bills 284. Parker v. Hanson, 7 Mass. Rep. 470. That the holder and indorsee of the bill had received it from the indorser, the witness, (who had secured himself from liability by a special indorsement,) in trust for the payees, and as their agent to collect, so as to let in the defence, that the drawer had been requested by the payees not to pay it to the indorsee, and thereby to defeat his action. Barker v. Prentiss, 6 Mass. Rep. 430. Or, that an accommodation note which had been delivered to a

G

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evidence in favour of the party to which their interest inclines them. They are excluded from a supposed want of integrity; and not, as some have supposed, that they may be saved from the temptation to commit perjury. If that were the true principle, there would be some inconsistency in excluding witnesses who have an interest even to the smallest amount, at the same time that a son is allowed to give evidence for the father, and a witness is not privileged from answering, when called to speak against his interest. The temptation to perjury may be much stronger in these two last cases, than in the former; yet in the one the witness will be permitted, in the other compelled to give evidence. "Where a man, says Chief Baron Gilbert, who is interested in the matter in question, comes to prove it, it is rather a ground for distrust than any just cause of belief; for men are generally so shortsighted as to look at their own private benefit which is near to them, rather than to the good of the world, that is more remote ; therefore, from the nature of human passions and actions, there is more reason to distrust such a biassed testimony, than to believe it." Perhaps it may appear father doubtful, whether such an exclusive rule has answered the purposes for which it was intended, and whether upon the whole it may not have contributed to obstruct rather than to pro*mote the ends of public justice. It is certain, that Courts of justice now generally adopt the principle, that it is wiser to hear the witness than at once to reject him unheard and untried; and they endeavour as far as possible, consistently with former decisions, to receive the testimony of witnesses, leaving it afterwards to the jury to consider, how far it has been supported by other evidence, or from its own character may be entitled to credit. The legisla

use.

third person to get discounted, was converted by him to his own Woodhull v. Holmes, 10 Johns. Rep. 231. But it has been held in an action between the indorsee and maker of a promissory note, that the indorser was not a competent witness to prove usury in the transfer. Minning v. Wheatland, 10 Mass. Rep. 502.

ture also shows, that it acts upon the same principle, by having provided in many instances for the admissibility of witnesses, when they must otherwise have been rejected as incompetent.

In treating of the incompetency of interested witnesses, it is proposed to consider the subject in the following order;

First, with respect to the nature of the interest, which will disqualify;

Secondly, of the rule on the subject of interest, considered with reference to the parties in the suit;

Thirdly, of the same rule considered with reference to the husband or wife of the party;

Fourthly, of the effect of admissions by a party to the suit or his agent, against the party's interest.

Fifthly, of the admissibility of the confession of a prisoner against himself;

Sixthly, of the competency of the party injured, as wit ness in criminal prosecutions ;

Seventhly, of certain exceptions to the general rule on the subject of interest; and

*Lastly, of the means by which the competency of an interested witness may be restored.

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SECT. I.

Of the Nature of the Interest, which disqualifies a Witness.

Ir is scarcely possible to reconcile the earlier cases on this subject with those of a more recent date. The old cases respecting the incompetency of witnesses, were geneerally decided on very narrow grounds. Evidence, which ought to have been admitted, although received with caution, was at once excluded without being heard; as if juries were not to be trusted with all the means of deciding right, because it was possible their decision might be wrong.