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In

future suit, is of all the rules on this subject the most com-
prehensive, and at the same time the most accurately de-
fined. And if this were the single criterion for ascertain-
ing whether the witness is incompetent, the question of
interest, which now is often a question of difficulty, would
be greatly narrowed. Lord Kenyon seems disposed to
consider this rule as the only true test of competency.
the case of Bent v. Baker (3), he says, "it is to be con-
sidered, what is the question put to a witness on his voire
dire? It is, is he really interested in the cause? Sometimes
indeed, the counsel enter into the detail, and ask how he is
interested? But the general question involves in it all
the others, and amounts to this, whether the record in
that cause will affect his interest?" Then again he says,
"I think the principle is this, if the proceedings in the
*cause cannot be used for him, he is a competent witness,
although he may have wishes upon the subject." And
Mr. Justice Buller in the same case says, "The true line
I take to be this, is the witness to gain or lose by the event
of the cause? Now this witness could not gain or lose by
the event of this suit, because the verdict could not be
evidence either for or against him in any other suit (a)."
However, it will appear from a variety of cases, that wit-
nesses have been considered incompetent on account of
interest, although the proceedings in the suit could never
be used in evidence either for or against them.

On the subject of interested witnesses, Ch. B. Gilbert lays down the rule thus (1), "the law looks upon a witness as interested, where there is a certain benefit or disadvantage to the witness attending the consequence of the cause one way." Mr. Justice Buller adopts the same rule (2). So, in the case of the King v. Prosser (3), where the question was, whether, on an appeal against a rate, parishioners,

(3) 3 T. R. 32. and see 7T. R. 62.
(1) Gilb. Ev. 106, 7.

(2) Bull. N. P. 284.
(3) 4 T. R. 20.

(a) 2 Johns. Cas. 236. 5 Johns. Rep. 257. 1 Hen. & Mun. 164, 165. 6 Binney 319. 4 Johns. Rep. 302.

who had rateable property but were not actually rated, were competent witnesses in support of the rate, the same learned judge expressed himself thus: "I take the rule to be this; if the witness can derive no benefit from the cause before the Court, (meaning evidently from the context, no immediate benefit,) he is competent." And it appears to be established by a variety of cases, that a certain direct and immediate interest will disqualify, although it may happen that the verdict in the cause cannot be evidence, either for or against the witness in any future suit concerning that interest. The following examples may be cited to illustrate this general rule.

1. Rated parishioners were always considered incompetent, before the late act of parliament (4), to give evidence for their parish in appeals against orders of removal, on *the ground that they were directly and immediately interested in the event of the procceding, by which the maintenance of the pauper and the costs of the appeal might be fixed upon their parish, and have the effect of increasing their proportion of the rates (1).

2. A devisee, who takes an interest under a will, is not competent to speak to the testator's sanity, in an action of ejectment by another devisee against the heir at law (a).

3. A bankrupt is not a competent witness in an action by his assignees to prove property in himself or a debt due to himself (2), or in any other manner to increase the fund (b). Nor can he prove his own act of bankruptcy, or the petitioning creditor's debt, or any other part necessary to

(4) St. 54. G. 3. c. 170. § 9.

(1) R. v. Prosser, 4 T. R. 19. R. v. South Lynn. 5 T. R. 667. R. v. Kirdford, 2 East 561.

(2) Ewens v. Gold, Bull. N. P. 43.

(a) But a tenant, under the devisee, of part of the estate devised, is competent to prove that the testator was non compos at the time of executing the will. Jackson d. Woodhull v. Rumsey, 3 Johns. Cae. 234.

(b) Sed vide M'Ewen v. Gibbs et al. 4 Doll. 137.

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support the commission, not even after obtaining a certificate, and executing a release of his share in the surplus ; for if the commission is not good, the certificate and all the proceedings are void, and the bankrupt will be liable again to his debts, from which the certificate would discharge him (3). For the same reason he cannot be questioned as to any antecedent act of bankruptcy, either in his examination in chief or in his cross examination (4). And, on a second commission of bankruptcy, a certificated bankrupt cannot be a witness for the assignees under that commission, unless he has paid 15 shillings in the pound, for in the event of his not making that payment under the second commission, his future effects are liable (5).

4. A creditor of a bankrupt is not competent to increase the fund, out of which he may receive a dividend (c). He cannot therefore give any evidence to deprive the bankrupt of *his allowance (1). And the petitioning creditor is not a competent witness to prove the commission regularly sued out; because he enters into a bond to the Lord Chancellor conditioned to establish the several facts, upon which the

(3) Cross v. Fox, 2 H. Bl. 279. n. (a); Flower v. Herbert, Ib. Field v. Curtis, 2 Str. 829. Chapman v. Gardner, 2 H. Bl. 279. Hoffman v. Pitt, 5 Esp. N. P. C. 22.

(4) Wyatt v. Wilkinson, 5 Esp.

N. P. C. 187; Elsom v. Brailey,
MS. case in 1 Selw. N. P. 239.

(5) St. 5 G. 2. c. 30. 9. Kennet v. Greenwollers, Peake N. P. C. 3. (1) Shuttleworth v. Bravo, 1 Str. 507.

(c) Phoenix v. Assignees of Ingraham, 5 Johns. Rep. 427. It is a general rule of evidence that if the effect of the witness's testimony, will be to create or increase a fund in which he will be entitled to participate, he is incompetent. 5 Johns. Rep. 258. Innis v. Miller, 2 Dall. 50. White v. Derby, 1 Mass. Rep. 239. Austin v. Bradley, 2 Day 466. Temple's Executor v. Ellett's Executrix, 2 Mun. 452. And it has been held that a witness holding an order from the plaintiff or his agent, the amount of which was to be paid out of the sum which might be recovered in the action, was interested in the event of the suit, although the agent had not accepted the order, and the plaintiff was at all events responsible to the witness for the amount. Peyton v. Hallett, 1 Caines' Rep.

validity of the commission depends, and to cause it to be effectually executed (2) (a). But another creditor who has not proved his debt under the commission, is competent to support the commission, though not to increase the estate (3). There is in this case no immediate or certain benefit. It may be as advantageous for the creditor to be allowed to sue his debtor as a solvent person, as to receive a dividend under the commission.

5. In an action of trespass against a sheriff, where the question was, whether goods, which had been taken in execution in a suit against A. B., belonged to him or to the Plaintiff, A. B. was not allowed to be witness for the defendant to prove the goods his property, since he would have been discharged from his debt in case of a verdict for the defendant (4) (b).

6. In an action of ejectment, where the plaintiff had made out a prima facie case against the defendant as tenant in possession, the Court of Common Pleas held that a witness called on the part of the defendant was not competent to prove himself the real tenant (c), and that the defendant was only his bailiff; for the verdict would have the effect of turning him out immediately; it was therefore an immediate interest, and outweighed the remoter effect of his subjecting himself by his testimony to an action of ejectment and trespass for mesne profits (5).

If there is a direct interest in the event of the suit, it will make the witness incompetent, however small and in(5) Doe d. Janes v. Wilde, 5 Taunt. 183.

Green v. Jones, 2 Camp. 411.
Williams v. Stevens, 2 Camp.

(a) In the case in the text the assignees of the bankrupt were plaintiffs; but it has been held, in a real action in which the tenant derived his title under a sale from the assignee of a bankrupt, that the petitioning creditor was a competent witness to prove his Own debt upon which the commission of bankruptcy was awarded. Farrington v. Farrington, 4 Mass. Rep. 237.

*considerable the degree of interest may be. Thus, in an action of trespass, where the question was, whether a corporation, which had enclosed part of a common, had left sufficiency for the commoners, a freeman was considered incompetent to prove the affirmative (1), because the rent must have been received for the use of the corporation; though it was admitted that the amount of the rent was exceedingly small. Hence it appears that a person who loses or gains the smallest sum by the event of a suit, whatever may be his rank, fortune, or character, is as incompetent to give evidence, as one who may be interested to the amount of thousands. This is the unavoidable consequence of the general rule. If interest is allowed to disqualify in any case, it must in all; as it is impossible by any scale to measure the different effects which it may have on different minds (a.)

If the witness has an interest inclining him to each of the parties, so as upon the whole to make him indifferent, he will be competent to give evidence for either party (b). Thus in an action of assumpsit for money paid to the use of the defendants who were ship-owners, Lord Kenyon admitted the captain to prove that he had received the money

(1) Burton v. Hinde, 5 T. R. 174.*

* See R. v. Mayor and Commonalty of London, 2 Lev. 231., R. v. Carpenter, 2 Show. 47., and case of City of London, 1 Ventr. 351. contra. In these cases freemen were admitted to be witnesses on account of the minuteness of their interest, against the opinion of Jones, J. The law of the case in 2 Lev. (where the point is precisely the same as in the other two cases) has been doubted by Mr. Justice Buller; see Bull. N. P. 290.

(a) And the witness cannot testify as to any point arising on the trial of the cause, such as the service of notice on the defendant, to produce certain papers at the trial. Butler v. Warren, 11 Johns. Rep. 57.

(b) Jackson d. Caldwell v. Hallenback, 2 Johns. Rep. 394. Bailey & Bogert v. Ogdens, 3 Johns. Rep. 420. M'Leod v. Johnston, 4 Johns. Rep. 126. Baring v. Reeder, 1 Hen. & Mun. 164. Cushman v. Loker, 2 Mass. Rep. 106.