of another cause,1 unless such matters were foreign and collateral to the issue on trial.2

So, also, except in cases of gross fraud, an arbitrator cannot be called as a witness to disclose the grounds of his award;3 or to prove his own misconduct; but he can testify to the time when, and the circumstances in which, he made his award; or show a mistake in it; or that any particular subject-matter was not taken into consideration by the arbitrators; and his testimony is competent to show that no final award was made, and that, although he had signed it, yet, subsequently discovering a mistake therein, he never delivered it. So, also, one agreed upon as an arbitrator, but who did not act as such, is competent; and where the award is made by an umpire, it is held that one of the original arbitrators is competent to impeach it.10

1 Reg. v. Gazard, 8 Car. & P. 595. 2 Rex v. Earl of Thanet, 27 How. St. Tr. 847.

31 Story, Eq. Pl. 458, n. (1); 2 Story, Eq. Jur. 680; Anonymous, 3 Atk. 644; Johnson v. Durant, 4 Car. & P. 327.

4 Claycomb v. Butler, 36 Ill. 100. 5 Woodbury v. Northy, 3 Me. 85.

"Pulliam v. Pensoneau, 33 Ill. 375. 7 Mayor &c. v. Butler, 1 Barb. (N. Y.) 325.

8 Shulte v. Hennessy, 40 Iowa, 352. McFadden v. O'Donnell, 18 Cal.

160.

10 Mayor &c. v. Butler, 1 Barb. (N. Y.)

325.

CHAPTER V.

COMMON-LAW RULE AS TO PERSONS INTERESTED IN THE

EVENT.

§ 46. The General Rule excluding them.

§ 47. The Scope and Limits of the Rule.

§ 48.

$ 49.

§ 50.

Operation of the Rule as to Witnesses whose Interest is balanced. or preponderates against the Party calling them.

or who will testify against Interest.

§ 51. Witness Liable for Costs.

§ 46. The General Rule excluding them. — In England, prior to the passage of Lord Denman's act,1 and in this country up to the times of the passage of the various enabling acts hereafter to be considered,2 it was a general rule of the common law that direct and positive interest in the event of a cause, to however small a degree, rendered a witness incompetent to testify in that cause. This rule was founded upon the supposed want of impartiality in the interested witness, and in his consequent temptation to commit perjury. But even in those jurisdictions where the rule was most inflexibly applied, the interest which would disqualify was required to be a certain and direct interest, and not merely a contingent or a consequential one. Again, the interest was required to be in the event of the suit: an interest in the question invol

16 & 7 Vict. c. 85.
2 Infra, Chap. VIII.

3 Reece v. Johnson, 1 Hempst. (U.S.) 82; Bean v. Pearsall, 12 Ala. 592; Athey v. McHenry, 6 B. Mon. (Ky.) 50; Netherton v. Robert, 3 Hayw. (Tenn.) 29; Revere v. Leonard, 1 Mass. 93; Bliss v. Thompson, 4 Id. 488; Commonwealth v. Snell, 3 Id. 82; Page v. Weeks, 13 Id. 199; Phelps v. Winchell, 1 Day (Conn.) 269; Fairchild v. Beach, Id. 266; Kennon v. M'Rae, 2 Port. (Ala.) 389; Cotchet v. Dixon, 4 McCord (S. C.) 311; Evans v. Eaton, 7 Wheat. (U.S.) 356; M'Gee v. Eastis, 5 Stew. & P. (Ala.) 426; Wadhams v. Turnpike Co., 10 Conn. 416; Woodard v. Spiller, 1 Dana (Ky.) 179; Henarie v. Maxwell, 5 Hals. (N. J.) 297; Spurr

v. Pearson, 1 Mass. 104; Shirk v. Vanneman, 3 Yeates (Pa.) 196; Fowler v. Collins, 2 Root (Conn.) 231; Evans v. Hettick, 7 Wheat. (U. S.) 453; Nass v. Vanswearinger, 7 Serg. & R. (Pa.) 192; Gould v. James, 6 Cow. (N. Y.) 369; Hoyt v. Wildfire, 3 Johns. (N. Y.) 518; Burton v. Hinde, 5 T. R. 174; Doe v. Tooth, 3 Younge & J. 19.

4 Ely v. Forward, 7 Mass. 25; Phillips v. Bridge, 11 Id. 242; Worcester v. Eaton, Id. 368; Bean v. Bean, 12 Id. 20; Cornogg v. Abraham, 1 Yeates (Pa.) 84; Sims v. Sims, 1 Treadw. (S. C.) Const. 131; Lewis v. Manley, 2 Yeates (Pa.) 200; Poe v. Dorrah, 20 Ala. 288; Adams v. Barrett, 3 Ga. 277; Howard v. Brown, Id. 523; Harvey v. Anderson, 12 Ga. 69; Jordan v.

ved was not sufficient. And it had to appear that the witness's interest was a legal and beneficial one. The test applied was whether the witness would gain or lose by the direct legal operation and effect of the judgment in the cause; or whether the record would be legal evidence for or against him in some other action.2

Thus the witness was excluded if the effect of his testimony would be to create or increase a fund in which he would be entitled to participate ;3 or prevent the diminution of such a fund; or extinguish a debt owed by him.5

6

The disqualifying interest had to be a legal one, and not merely "the prejudice or bias resulting from friendship or hatred, or from consanguinity, or any other domestic or social, or any official relation, or any other motives by which men are generally influenced; for these go only to the credibility." Thus the rule did not extend to agents, carriers, factors, brokers, or other servants, when offered to prove any acts done within the scope of their employment; or to parent and child, guardian and ward, attorney and client, and the other personal and legal relations.8 It made no difference, according to some of the cases, whether the interest was direct or indirect; nor, if pecuniary, was the amount of any importance, the most trifling interest being as potent as the greatest.10

Pollock, 14 Ga. 145; Clarke v. Robinson, 5 B. Mon. (Ky.) 55; Smith v. White, 5 Dana (Ky.) 376; City Council v. Weikman, 1 Rich. (S. C.) 240; Smith v. White, 5 Dana (Ky.) 376; Marwick v. Georgia Co., 18 Me. 49; Blake v. Irish, 21 Me. 450; Dunbar r. Chevalier, 28 Miss. 161; Pickett v. Cloud, 1 Bailey (S. C.) 362; Ford r. McKibbon, 1 Strobh. (S. C.) 33; Smith r. Asbill, 2 Rich. (S. C.) 546; Hill v. Miller, 2 Swan (Tenn.) 659; Osborn ". Cummings, 4 Tex. 10; Bigham v. Carr, 21 Tex. 142.

1 Williams v. Jones, 2 Ala. 314; Todd v. Boone County, 8 Mo. 431; Stewart v. Conner, 9 Ala. 803; Wright r. Lewis, 18 Ala. 194; Clapp v. Mandeville, 6 Miss. 197; Bass r. Peevey, 22 Tex. 295; Masters v. Varner, 5 Gratt. (Va.) 168.

2 Eaton v. Gentle, 1 Chand. (Wis.) 10; 1 Stark. Ev. 102; Bent v. Baker,

3 T. R. 62; Bailey v. Lumpkin, 1 Ga. 392; Jones v. Post, 4 Cal. 14; State v. Poteet, 7 Ired. (N. C.) L. 356.

3 Governor v. Justices, 20 Ga. 359; Foster v. Rutherford, Id. 676; Rome r. Dickerson, 13 Ga. 302; Cleverly r. McCullough, 2 Hill (S. C.) 445; Brown v. O'Brien, 1 Rich. (S. C.) 268; Johnson v. Alexander, 14 Tex. 382.

4 Stebbins v. Sackett, 5 Conn. 258. 5 Richardson v. Bartley, 2 B. Mon. (Ky.) 328.

10.

61 Greenl. Ev. (14 ed.) § 386.

7 Eaton v. Gentle, 1 Chand. (Wis.)

8 See, as to these, infra, §§ 53, 60, 69, 76.

Kennedy v. Bossiere, 16 La. Ann. 445; McCall r. Smith, 2 McCord (S. C.) 375; Kimball v. Kimball, 3 Rawle (Pa.) 469.

10 Hunter v. Gatewood, 5 Mon. (Ky.) 268; Scott v. McClellan, 2 Me. 199.

Any interest which could be asserted in a court of justice, whether a common law court or a court of equity, was enough to exclude the witness;1 and the rule was carried so far as to exclude a witness who was interested in only a part of the plaintiff's demand, from testifying as to another part of it, in which he had, in fact, no interest.2

§ 47. The Scope and Limits of the Rule. In view of the fact that both in England and America the mere interest of a witness in the event of the suit is no longer (except perhaps in one or two jurisdictions, and even in them to a limited extent) a disqualification, only a limited number of the multitude of cases illustrating the scope and limits of this rule of the common law will be cited. The writer's object is, primarily, to show what the law now is, and to that end he must exhibit its growth and history, but not necessarily cite some thousands of obsolete cases for that purpose.

First we may safely assert that the interest must be a real and not an imaginary or apprehended one. It is the fact of interest; its actual existence, and not the belief of the parties that it does exist, which will disqualify the witness.3

Accordingly it has been laid down that the declarations of a witness, made to others, that he is interested in the event of a suit, do not prove him to be so, or that he is an incompetent witness.4

Thus, a belief on the part of the witness that he is under an honorary obligation to the party calling him, in respect of the matter in controversy, will not disqualify him, however it may affect his credibility with the jury.5 There is no lack

1 Blum v. Stafford, 4 Jones (N. C.) L. 94.

4 George v. Stubbs, 26 Me. 243; Nichols v. Holgate, 2 Aik. (Vt.) 138;

2 Gage v. Stewart, 4 Johns. (N. Y.) Cole v. Cole, 33 Me. 542. 293.

31 Phil. Ev. 127, 128; 1 Stark, Ev. 102; Gayle v. Bishop, 14 Ala. 552; McCabe v. Hand, 18 Cal. 496; Stallings v. Carson, 24 Ga. 423; Washington &c. Road v. State, 19 Md. 239; State v. Poteet, 7 Ired. (N. C.) L. 356; Cassiday v. McKenzie, 4 Watts & S. (Pa.) 282; Commercial Bank v. Hughes, 17 Wend. (N. Y.) 94; Stall . Catskill Bank, 18 Id. 466; Coghill r. Boring, 15 Cal. 213; Elliott v. Porter, 8 Dana (Ky.) 299; Sims v. Sims, 3 Brev. (S. C.) 252.

5 Smith v. Downs, 6 Conn. 365; Orput v. Miller, 5 Blackf. (Ind.) 571; Union Bank v. Knapp, 3 Pick. (Mass.) 96, 108; Howe v. Howe, 10 N. H. 88; Gilpen . Vincent, 9 Johns. (N. Y.) 219; Moore v. Hitchcock, 4 Wend. (N. Y.) 292; Ludlow v. Union Ins. Co., 2 S. & R. (Pa.) 119; Long v. Bailie, 4 Id. 222; Coleman v. Wise, 2 Johns. (N. Y.) 165; Commonwealth v. Gore, 3 Dana (Ky.) 474; M'Causland v. Neal, 3 Stew. & P. (Ala.) 131; Frink v. McClung, 9 Ill. (4 Gilm.) 569; Carman v. Foster, 1 Ashm. (Pa.) 133;

of cases to the contrary of the above proposition, but the writer believes it to be the better opinion.1

Again, the interest (as we have seen in the preceding section) must be in the event of the litigation, and not merely in the question involved.2 So also, the rule was, that if the witness could not gain or lose by the event of the suit, or if the verdict could not be given in evidence for or against him in another action, he was competent, his credibility only being affected. Again, the disqualifying interest must be immediate and not remote, and upon the very point of the case to which he is called to testify. So also, it must have existed at the beginning of the suit, the rule being that a witness cannot deprive a party of his evidence, by creating a subsequent interest, by his own act, without the concurrence of the party calling him; much less can he do so by agreement with the opposite party. And it must be direct and certain, or no matter what its character in other respects, it will go only to the credibility.

S. P. Havis v. Barkley, Harp. (S. C.) 63; Long v. Bailes, 4 S. & R. (Pa.) 222; State v. Clark, 2 Tyler (Vt.) 278.

'Plumb v. Whiting, 4 Mass. 518; Moore v. Hitchcock, 4 Wend. (N. Y.) 292; Peter v. Beall, 4 Har. & M. (Md.) 342; Sentney v. Overton, 4 Bibb (Ky.) 445; M'Veaugh v. Goods, 1 Dall. 62; Winn v. Cole, 1 Miss. (Walk.) 119; Johnson v. Kendall, 20 N. H. 304; Richardson v. Hunt, 2 Munf. (Va.) 148.

2 Rollins v. Taber, 25 Me. 144; McLaren v. Hopkins, 1 Paige (N. Y.) 18; Estice v. Cockerell, 26 Miss. 127; Stoddard v. Mix, 14 Conn. 12.

8 Van Nuys v. Terhune, 3 Johns. (N. Y.) Cas. 82; Coltart v. Laughinghouse, 38 Ala. 190; People v. Howell, 4 Johns. (N. Y.) 296; State v. Foster, 3 McCord (S. C.) 442; State v. Hassett, 1 Tayl. (N. C.) 55.

Harbin v. Roberts, 33 Ga. 45; Fountain v. Anderson, Id. 372; McCaskey v. Graff, 23 Pa. St. 321; State v. Farrow, 10 Rich. (S. C.) 165; Richardson v. Dingle, 11 Id. 405; Linsley v. Lovely, 26 Vt. 123; Galbraith v. Scott, 2 Dall. (U. S.) 95.

5 Shelton v. Tomlinson, 2 Root

(Conn.) 132; Smith v. Carrington, 4 Cranch (U. S.) 62; Bank of Utica v. Mersereau, 3 Barb. (N. Y.) Ch. 528.

6 Hafner v. Irwin, 4 Ired. (N. C.) L. 529; Webb v. Danforth, 1 Day (Conn.) 301; Price v. Woods, 7 T. B. Mon. (Ky.) 223; Way v. Arnold, 18 Ga. 181; Baylor v. Smithers, 1 Litt. (Ky.) 105; Long v. Bailie, 4 Serg. & R. (Pa.) 222; McDaniel's will, 2 J. J. Marsh. (Ky.) 331; Rhem v. Jackson, 2 Dev. (N. C) L. 187; Whiting v. Gould, 1 Wis. 195; Jones v. Hoskins, 18 Ala. 489.

7 Day v. Green, Hard. (Ky.) 117; Stewart v. Kip, 5 Johns. (N. Y.) 256; Phelps v. Hall, 2 Tyler (Vt.) 399; Stockham v. Jones, 10 Johns. (N. Y.) 21; Ten Eyck v. Bill, 5 Wend. (N. Y.) 55; Burroughs v. United States, 2 Paine (U. S.) 569; Easley v. Easley, 18 B. Mon. (Ky.) 86; Millett v. Parker, 2 Metc. (Ky.) 608; Cutter v. Fanning, 2 Iowa, 580; Frankfort Bank v. Johnson, 24 Me. 490; Melvin v. Melvin, 6 Md. 541. But it has been held that an interest under an agreement, voidable by the statute of frauds, may render a witness incompetent, for non constat that the statute will ever be pleaded. Robbins v. Butler, 24 Ill. 387. And