sons. relevant to the matter in issue, the answering of which has a tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever, by reason only, that the answering such question may establish or tend to establish that he owes a debt, or is otherwise subject to a civil suit, at the instance of his Majesty, or of any other perBut otherwise, if in his opinion the answering of it will expose him to penalties. † son. Interested per- 3dly. Persons interested. It is a general rule of evidence, that persons interested cannot be witnesses, and much nice discrimination was formerly requisite for the perfect understanding of it, as it applied to the competency or credit of witnesses in civil actions; much of that is now done away, and as it is connected with criminal proceedings, examples, sufficient to indicate the boundary line of principles at least, may be within the limit that is admissible. To some of these there are indeed numerous exceptions, both by statute and otherwise; but, generally, the rule now to be deduced from a long succession of determinations is, that when an immediate, and certain interest can be shewn, it is an absolute objection to competency, but that when it is uncertain, or remote, it only goes to the credibility of the testimony. This will be best exemplified, as we proceed, by particular examples. In all public prosecutions for offences, where any advantage is certainly to arise to the prosecutor, there he cannot be a witness, because it would be to attest in his own behalf; but where there is only a fine to the King, and nothing goes to the prosecutor, then he may be a witness.‡ So a person whose property may be prejudiced by a forgery, is no evidence to prove it on an indictment, because he has an immediate interest in the success of the prosecution. § But the interest must be immediate, not remote. Thus, the person whose name is forged to a receipt, is not a competent witness to prove the forgery. || 46 Geo. 3. c. 37. R. v. Treble, 2 Taunt. 328. ↑ Cotes v. Hardacre, 3 Taunt. 424. § Law of Evi. 126. Nor a person who has been imposed upon, and tricked into signing a promissory note, to convict the party for that offence. * Nor the assignee of a certificate to a navy bill, whose name is charged to be forged to an acquittance for the money, to prove the forgery. + Nor an excutor named in a subsequent will by the same testator to that which is charged to be forged, to prove the forgery. But in all cases, civil and criminal, where a witness has Exceptions. no immediate interest, i. e. where the interest is very remote, or uncertain, or nearly counterbalanced, he is a competent witness. And this rule, or rather exception to the general rule of competency, is so obvious and intelligible, that it is unnecessary to multiply either examples or authorities. And a person whose signature is forged may be made a competent witness to prove the forgery by being released from the payment. § So, if the money have been recovered from some other person, because then he is no longer interested, as it cannot be recovered twice. || And if the interest be not immediate, but remote, it will not prevent the party possessing it from being a witness, as is clear from a great number of cases respecting parish rates to be noticed very soon. continual and permanent. But an owner of property, although that property was Some interests let to a tenant for a long term, who paid all the rates by engagement, was determined to have that permanent interest, though somewhat remote in point of time, in the land, as to render him an incompetent witness to discharge it from the burden of repairs of any public work, to which it is alledged to be liable. R. v. Kridford, 2 East. R. 559, was strongly insisted on to show that there must be an interest existing at the time, but the interest in an owner * R. v. Whiting, Ld. Raym. 396. + R. v. Hunter, 1 Leach, 723. ** Cald. Ca. 551. Husband and wife. was considered as always existing, though burdens may not be always accruing.* Husband and wife, generally speaking, cannot be admitted witnesses for, or against, each other, because their interests are the same; but to this rule also there are many Exceptions. exceptions. In the first place, it does not hold in high treason; nor in abduction and forcible marriage; nor in an indictment against the husband for polygamy (the second wife being absolved from all common interest with her husband, by the marriage being void;) in breaches of the peace by the husband against her person; nor in indictments for assaults by other persons on the husband, for the King being the prosecutor, and the fine, if any, going to the King, no interest accrues to the husband, wherefore both himself and his wife are good witnesses. + An extraordinary case on this subject of husband and wife being witnesses against each other, was tried before Lord Ellenborough at Chelmsford, 1817. R. P. was indicted for stealing nine pecks of clover seed, the property of Anne Butcher, and W. B. for receiving it, knowing it to be stolen. Anne Butcher did not appear, and it was moved, that her recognizance should be discharged, because by intermarriage with R. P. the felon, she was disabled from giving evidence against him. Lord Ellenborough admitted, that she could not be required to give testimony against her husband, but refused to discharge the recognizance. ‡ But no other degree of kindred, or affection, as that of parent and child, or the like, will prevent a person from being a witness, but nevertheless such evidence is open to observation. § And there are cases, where, from the necessity of the thing, persons interested must be allowed to be witnesses: thus in removing an indictment by certiorari from the sessions to the King's Bench; though the prosecutor in Rhodes v. Ainsworth, M. 58 Geo. 3. B. R. +1 Dick. Pract. Expos. title EVIDENCE, sect. 3.-Peake's Compend. 193.-R. v. Stent, O. B. Sept. 1819. 3 Dick. Pract. Expos. 935. § 1 Salk. 289. that case, if the defendant be convicted, is entitled to his costs, yet he is allowed as a witness; for if the giving of costs should take off the evidence of the prosecutor, the act of Parliament designed to discountenance the removal of suits by certiorari, would give the greatest encouragement to them that is possible.* So, before the rewards on conviction were taken away by statute recently, the evidence of a man was received, who prosecuted a burglar to conviction; though in case of such conviction of the offender, he was entitled to a reward of 401. for the intention of the act of Parliament would have been quite defeated, if the reward should take off the evidence.+ The parishioners or inhabitants of parishes, townships, Parishioners. and other places, were not admissible witnesses to prove the perpetration of such offences within their parishes, for which pecuniary penalties were inflicted, applicable to the use of the poor, till they were made so by statute. I But it was provided by that statute, that the "inhabitants of every parish should be deemed competent witnesses, for the purpose of proving the commission of any offence, within the limits of their parish, notwithstanding the penalty incurred by such offence, or any part thereof, may be given to the poor of such parish, or otherwise for the benefit or use, or in aid or exoneration of such parish; so as the penalty to be recovered shall not exceed the sum of And this exception to the general rule of incompetency from interest, has been further extended by a still more recent statute, § which enacts, that "no inhabitant or person rated, or liable to be rated to any rates, or cesses of any district, parish, township, or hamlet, or wholly, or in part, maintained or supported thereby, or executing or holding any office thereof or therein, shall, before any court or persons whatsoever, be deemed and taken to be, by reason thereof, an incompetent witness for or against such district, parish, &c. in any matter relating to such rates or * 10 Mod. Rep. 193. 27 Geo. 3. c. 29. + Ibid. § 54 Geo. 3. c. 107, cesses; or to the boundary between such district, &c. and any adjoining district, &c. ; or to any order of removal to or from such district, &c. or the settlement of any pauper in such district, &c.; or touching any bastards chargeable, or likely so to be, to such district, &c.; or the recovery of any sums for the charge or maintenance of such bastards; or the election or appointment of any officer or officers; or the allowance of accounts of any officer of such district, &c. § 9. Before these acts, it had been holden no objection to the testimony of an inhabitant of a parish, that he was liable to be rated to the relief of the poor, but not rated in fact; that he had an interest in the penalties to be recovered for the use of the poor, by his testimony, because that he might eventually be benefited by the distribution thereof, and thereby eased of a proportion in his assessment; for the distinction had long been taken, that where the inhabitant does not actually pay, his mere liability was that sort of remote interest that should not take away his testimony.* But it had been decided, that a rated inhabitant was to all general purposes of his parish an interested, and therefore an incompetent, witness, insomuch that after a settlement proved by appellants in a third parish, a rated inhabitant of such third parish was held not a competent witness for respondents to disprove that settlement, for his interest in the judgment was direct; as the order, if confirmed, would be conclusive evidence of settlement at that time, in appellant's parish upon subsequent order of removal from thence to such third parish.† But that on an appeal from an order of removal, the respondents might compel an inhabitant of the parish appealing, who is not rated to any of the parochial taxes, to be examined: and might also produce an inhabitant of their own parish, who was not rated, and the evidence of such inhabitant shall be received, "for," said the court, "mere inhabitancy does not create interest."‡ Since the statute just referred to, the objections to in • Cald. Ca. 551.-4 Term R. 17.-2 Bott. 756.-2 East's Rep. 559. 15 East's R. 471. 6 Term R. 157. |