cause and, consequently, there is nothing to shew that they came from the proper custody. ABBOTT C. J. I am of opinion that this rule must be discharged. The motion was made on the ground that the bankrupt was improperly admitted at the trial as a witness to prove the identity of the proceedings under the commission against him. The bankrupt had obtained his certificate, and released the surplus of his estate; he therefore had not any immediate interest in the event of the suit, and for general purposes was a competent witness. But a rule has been long established, that a bankrupt cannot give evidence to prove any fact necessary to give validity to the commission. The 49 G. 3. c. 121. s. 10. has dispensed with certain proofs which the common law required, and has provided that the proceedings of the commissioners shall be received as evidence of the petitioning creditor's debt, of the trading, and bankruptcy, unless notice be given of an intention to dispute those matters. The bankrupt was not in this case called to prove any of those facts, but merely the signature of the commissioners. The validity of the commission does not depend upon that signature, but upon the facts contained in the depositions to which the signature is subscribed. To prove that signature he certainly was competent, for the signature was not necessary to support the validity of the commission. BAYLEY J. I am of opinion that the bankrupt was a competent witness to prove that for which he was called, although incompetent to prove any fact necessary to support the commission. It has been said that it is VOL. II. с too 1823. MORGAN against PRYOR. 1823. MORGAN against PRYOR. too late now to enquire into the principle upon which a bankrupt has been held incompetent for that purpose. I think it is also too late to extend the rule beyond the letter of former decisions. It appears to me that the rule was founded upon the principle of interest in the bankrupt. Before the 49 G. 3. c. 121. was passed, the assignees of a bankrupt were bound to produce witnesses to prove the trading, the petitioning creditor's debt, and the act of bankruptcy; and if they were unable to do that, it formed a ground upon which the Lord Chancellor might possibly supersede the commission. That would render the certificate inoperative; and therefore the bankrupt was considered interested in the support of the commission. But merely failing to prove the hand-writing of the commissioners, is not a ground upon which the Lord Chancellor would think of superseding a commission. The principle upon which the former decisions proceeded does not then apply to this case, and the bankrupt was properly received as a witness. HOLROYD J. I think that if we held the bankrupt to be incompetent as a witness in this case, we should go a step further than any former decision. The general rule is, that a witness is competent unless interested in the event of the suit; and the criterion as to that is, whether the verdict can be given in evidence, either for or against him, in any other proceeding. Here the verdict would not be evidence, either for or against the bankrupt; he is not, therefore, within the general rule. But there are a few anomalous cases in which that criterion is not decisive as to the admissibility of of a witness; and accordingly it has been held, that in Here BEST J. The principle upon which bankrupts have been considered incompetent to give evidence in support of the commission, may be collected from Flower v. Herbert. I cannot, indeed, agree with that principle, because I think that the Lord Chancellor would not supersede a commission in consequence of any thing that passed in this court, but would himself enquire into the matter. I should, nevertheless, feel bound by that authority, if this case were precisely similar. But it is not so; and for the reasons already given, I think we should go far beyond the old rule, were we to hold that the bankrupt was not competent to identify the proceedings, by proving the hand-writing of the commissioners. 1823. MORGAN against PRYOR. 1823. MORGAN against PRYOR. Being of opinion that the rule ought not to be extended, I agree in thinking that the plaintiff is entitled to retain the verdict. Rule discharged. Wednesday, Declaration, LATHAM and Others against RUTLEY and Others. that for certain ASSUMPSIT against the defendants, common car hire and reward defendants un London and deliver them The contract proved was, to was a variance. riers between London and Dover. The declaration dertook to carry stated that the plaintiffs, at the request of the defendgoods from ants, delivered to them a parcel of country bank notes safely at Dover. of great value, to wit, &c., to be carried from London to Dover, and there delivered; that the defendants in consideration thereof and for certain reward in that behalf, undertook to deliver them safely, but that through their negligence the parcel was lost. Plea, general issue. At the trial before Abbott C. J. at the London sittings after Trinity term, 1822, it appeared that the plaintiffs were bankers at Dover, and were in the habit of sending Bank of England notes to their correspondents in London to take up their own notes and bills, and of receiving the latter in exchange by the waggon of the defendants. When parcels were delivered to be conveyed to London, the defendants gave a receipt to the plaintiffs, engaging to deliver them safely (fire and robbery excepted). No evidence was given of any special contract respecting the carriage of parcels from London to Dover. In May, 1820, the parcel in question was booked at the waggon-office in London, and was stolen from thence, the door being left open. It was objected for the defendants, that the contract for the carriage of parcels parcels from London to Dover must be taken to be the same as that for the carriage from Dover to London, and that the contract proved was not the same as that stated in the declaration. The Lord Chief Justice left it to the jury to say whether the contract was in both cases the same; and, if so, whether this was a loss by robbery. The jury found that the contract for the carriage of this parcel was subject to the exception of fire and robbery; but that the loss was not by robbery, within the meaning of that exception; and a verdict was taken for the plaintiffs. In Michaelmas term Scarlett obtained a rule to enter a nonsuit, on the ground of a variance between the contract found by the jury and that stated in the declaration, against which cause. The action The Solicitor-General, Denman, and Kaye, now shewed The jury having found that the loss was not by robbery within the meaning of the contract, the plaintiffs are entitled to retain the verdict. is founded on the common law liability of carriers; and the proviso introduced in their favour does not alter the nature of the contract to be declared upon: but if the loss had happened by either of those causes, that was matter of defence to be established by evidence. [Holroyd J. It does not appear that the defendants received the goods upon their common law liability.] The defendants must rely upon the technical meaning of the word "exception," as opposed to proviso; for in Clarke v. Gray (a) it was held that a provision that the carrier should not be responsible for more than 57. did not form any part of the contract itself, and need not (a) 6 East, 564. 1823. LATHAM against RUTLEY. |