EVIDENCE. 



117 



sufficient that a party has been convicted and punished 

 fora crime ; nor that the punishment itself is deemed 

 by the public degrading and infamous. But the 

 offence must, in its own nature, be infamous. All 

 capital offences and felonies are deemed infamous ; 

 till offences importing fraud and gross moral deprav- 

 ity ; every species of the crimen fa/si, such as forgery, 

 perjury, subornation of perjury, piracy, bribery, con- 

 spiracy to accuse another of a crime or to commit a 

 fraud, swindling, cheating, grand larceny, and Jitter- 

 ing counterfeit paper. Many other offences, though 

 very reprehensible in law, as well as in morals, do 

 not carry with them tliis disqualification ; such as 

 libels, riots, assaults, and batteries, and other subor- 

 dinate misdemeanour's. A pardon will, in cases where 

 incompetency is thus a consequence of the convic- 

 tion, restore the party to his competency, at whatever 

 time it may be granted ; and even though the party 

 has suffered under it an infamous punishment. 

 Accomplices in an infamous crime, who have not 

 been convicted, but who confess their own guilt, are 

 not on that account disabled from giving testimony ; 

 but of course it is received with great distrust and 

 caution, and it rarely happens, that any conviction 

 takes place upon such testimony standing alone and 

 uncorroborated. 4. A fourth ground of incompetency 

 is on account of interest. It is, in our law, a general 

 rule, tliat all witnesses, interested in the event of a 

 cause, that is, such persons as must gain or lose by 

 the event, are incompetent to give testimony in 

 favour of the party, to whom their interest inclines 

 them, but not incompetent to give testimony for the 

 other party. The interest, however, required to 

 exclude a witness, must be a legal interest (that is, a 

 fixed interest, which is recognised in our jurispru- 

 dence as such), and not merely a prejudice, affection, 

 or bias, or relationship, though these may go to his 

 credit. In respect to relationship, a husband and 

 wife cannot be witnesses for or against each other. 

 They cannot be witnesses for each other, because 

 their interests are, in legal contemplation, one and the 

 same ; nor, generally, against each other, because it 

 would destroy the necessary confidence between them, 

 which the law deems of primary and fundamental 

 importance to social life. But all other relations 

 may be witnesses, for or against each other, such as 

 father and child, master and servant, guardian and 

 ward. But an attorney or counsellor cannot be a 

 witness against his client as to any matter of fact, 

 which he derived from his client in professional con- 

 fidence. This proceeds upon a large ground of 

 public policy. If the interest be strictly a legal 

 interest, it is immaterial whether it is great or small. 

 I f it be not a legal interest, it matters not how strong 

 the bias of the party may be, for that goes to his 

 credit only. It is not sufficient, that he has an 

 interest in the question, or has a case of a like 

 nature ; he must have an interest in the event of the 

 cause, or it must be such that the verdict may be 

 given in evidence, for or against him. The interest, 

 also, required to exclude a witness, must be a fixed, 

 present interest, and not a remote, possible, or con- 

 tingent interest. Whenever, therefore, the interest 

 of the witness is doubtful, he is of course admitted. 

 If a witness is really interested in the event of the 

 suit, he is incompetent, although he supposes himself 

 not to be. It would seem to follow, that if he 

 believed himself interested, and he were, in fact, not 

 so, he ought to be admitted as a witness. This is 

 the rule in English courts. A mere honorary engage- 

 ment will not exclude a witness. If the verdict or 

 record would secure any advantage to the witness, or 

 rt-pel a charge against him, or a claim upon him, in 

 a future proceeding, he is incompetent. A party to 

 tlie record is generally incompetent. So a person 



liable to costs ; so bail in a suit ; so a servant, in an 

 action against his master for negligence or misconduct 

 of the servant ; so a tenant, to establish his landlord's 

 title ; so a devisee in a will, to prove the will ; so a 

 creditor, to increase the fund of a bankrupt's estate. 

 These are merely put by way of example. If a wit- 

 ness have an interest on both sides, so that, on the 

 whole, he stands indifferent, he is admissible. So, 

 although he is interested, if that interest is released 

 or extinguished in any manner, his competency is 

 restored. So where the witness offers to release his 

 interest and the other party refuses. A member of 

 a corporation is, generally, incompetent to testify in 

 a suit, brought by the corporation. There are cer- 

 tain exceptions to the rule, as to the incompetency 

 of witnesses on account of interest, which have been 

 recognised in law, and which seem justified by a 

 moral necessity. Thus, agents, factors, and servants 

 are, generally, if not universally, admissible as 

 witnesses for their principals, as to things within the 

 scope of their agency. So persons entitled to a 

 reward for conviction of other persons of a crime. 

 So informers entitled to share in a penalty ; but 

 this is provided for by positive law. So a party 

 robbed, in an action against the hundred (q. v.) for 

 his loss ; for otherwise he might not be able 

 to prove the robbery, which is usually a secret thing. 

 The rule of allowing interested testimony, ex neces- 

 sitate, is to be understood not of a necessity in the 

 particular case, but of a general necessity in cases 

 belonging to that class. If a witness be not inte- 

 rested at the time when the fact occurred, he can- 

 not, by creating a subsequent interest voluntarily on 

 his own part, deprive the party of his testimony, as 

 by making a bet, or wager on the event ; but it is 

 otherwise if the interest be created by act of law, or 

 the act of the party by whom he is called. This 

 may suffice as a general outline of the law, as to 

 incompetency on account of interest. And cases 

 often arise on this subject, of extreme nicety and 

 subtlety, where the application of the rule is full of 

 doubt and difficulty. But the consideration of such 

 points properly belongs to a full treatise of evidence. 

 In respect to oral or unwritten evidence, there 

 are some other rules, which it may not be without 

 use to state. And, 1. as to admissions. These, 

 when made by the party himself, or by his agent in 

 the particular transaction, are evidence against him, 

 though not for him. If there are several persons 

 having a joint interest, an admission of one of 

 them in respect to the joint interest, is evidence 

 against all. So an admission of one partner, as 

 to partnership transactions, is evidence against all 

 the partners. But in cases of crimes and torts 

 (q. v.), the rule is more limited. There, the admis- 

 sion of one defendant does not affect the others, 

 unless it be a part of the res gestee ; or there be 

 proof of a common conspiracy or design, and the 

 declarations of the party respect that design, and are 

 a part of it, or are made in the course of executing 

 it. But the admissions or declarations of an agent 

 are not evidence against the principal, unless they 

 are made in a case within the scope of his employ- 

 ment, or are a part of the res gestce. His admissions 

 at another time, or in another employment, are not 

 so. What he states while he is doing an act, as 

 agent, is evidence ; what he states historically, after- 

 wards, as to the acts and proceedings under his agency, 

 is not, because better proof may be obtained, for he 

 may be called to appear personally as a witness. 

 There is a distinction in respect to the effect of 

 admissions. In some cases, they are conclusive ; in 

 some, not. They are often conclusive, when the 

 party lias thereby induced another to act, or give 

 credit. In many other cases they may be contra- 



