the penalty given by the act, was rejected as incompetent by Lord Kenyon. Rex v. Blackman, 1 Esp. 96. But where the statute gives the court power either to fine or imprison, a person who would be entitled to a portion of the fine is a competent witness. Thus upon an indictment on the above-mentioned statute, 17 G. 2., which occurred soon after the decision of Blackman's case (supra), Lord Kenyon said that, since that decision, he had considered the objection to the informer being a witness on the ground of interest; that the statute having given a discretionary power to the court to inflict a corporal punishment, or to impose a fine, it was only in case a fine was imposed that the witness could expect to derive any benefit, and that was uncertain, as depending upon the judgment of the court; and he was now of opinion that the objection went to the credit, and not to the competency of the witness. Rex v. Cole, 1 Esp. 169., Peake, 217.

Before the passing of the stat. 1 Ann, stat. 1 c. 18. § 13., doubts Inhabitants of were entertained whether inhabitants of counties were competent county. witnesses on an indictment respecting the non-repair of bridges. By that statute, it is expressly enacted, that the evidence of inhabitants in such cases shall be admitted. Again, before the statute 8 G. 2. c. 16. § 15., the inhabitants of a hundred could not have been competent witnesses for the defence in an action on the statute of Winton. But by the stat. of G. 2. they were rendered competent, as they now are in all actions against the hundred, under the stat. 7 & 8 G. 4. c. 3., by the provisions of the eighth section of that act. (See tit. Hundred, Vol. II., p. 1013.)

Upon a question whether a certain manor was in the county of S., it was ruled that any person of the county, if he were not within the hundred where the manor was, might be a witness; for, as to the county taxes, every hundred pays its proportion, but as hundreds there are particular charges. The county of Salop v. The county of Stafford, 1 Sid. 192. (But see now tit. County Rate, antè.)

By stat. 5 & 6 W. 4. c. 50. § 100. (the new Highway Act), no person shall be incompetent to give evidence in any legal proceedings under that act, by reason of his being an inhabitant of the parish in which any offence shall be committed, or of being a treasurer, clerk, surveyor, district surveyor, assistant surveyor, collector, or other officer appointed under the act. (See Vol. II., tit. highways, p. 860.)

A similar provision is contained in the stat. 3 G. 4. c. 126. § 137. (General Turnpike Act.) (See Ibid, p. 984.)

5 & 6 W. 4. Inhabitants of parish compe

tent with re

spect to the

Highway Act

3

G. 4. c. 126.

So as to the
General Turn-

pike Act.

But the inhabitants of a parish indicted for not repairing a highway are not competent to give evidence for the defendants. Per Lord Ellenborough C. J. Rex v. Inhab. of Wandsworth, 1 B. & A. 66. Nor are they made competent by stat. 54 G. 3. c. 170. § 9. Not competent (See Rex v. Bishop's Auckland, post, p. 1034.)

Rex v. Inhab. of Wheaton-Aston, Stafford Sum. ass. 1797, cor. Ld. Kenyon C. J. Indictment against the defendants, inhabitants of a township, for not repairing a highway. Defendants pleaded that one Robinson was bound ratione tenure to repair. This obligation was traversed and issue joined thereupon. On the part of the defendants, an inhabitant of the township was called as a witness, who was not an occupier of land therein, and therefore not rated to the poor, but Ld. Kenyon C. J. rejected him as being di

on Road Indictments.

Rateable in

habitants formerly incompetent on appeals, &c.

54 G. 3. c. 170.

incompetent witnesses in behalf of or against their

parishes, in any matter relating

to the rates or

cesses, or

rectly interested in the event of that suit, because if there should be a verdict against the defendants, the witness, as an inhabitant, would be liable to the payment of the fine; and also any inhabitant is bound to do statute duty. From the MSS. of Mr. Serjeant Wil

liams. S. C. cited 2 Saund. 159.

Rated parishioners were always considered incompetent 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 proceeding, 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. Rev. Prosser, 4 T. R. 19. Rex v. South Lynn, 5 T. R. 667. Rex v. Kirdford, 2 East, 561.

And it was determined by the court of K. B. that, on an appeal against an order of removal, if the appellants proved a settlement in a third parish, the rated inhabitants of that parish were not competent witnesses for the respondents to disprove it; as the confirmation of the order of removal would be conclusive evidence for the inhabitants of the third parish, that the settlement of the pauper was at that time in the appellant parish. Rex v. Terrington, 15 East, 471.

But these objections are removed by stat. 54 G. 3. c. 170. § 9, Inhabitants not 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 person or persons whatsoever, be deemed and taken to be by reason thereof an incompetent witness for or against such district, parish, township or hamlet, in any matter relating to such rates or cesses; or to the boundary between such district, parish, township or hamlet, and any adjoining district, parish, township or hamlet; or to any order of removal to or from such district, parish, township or hamlet; or the settlement of any pauper in such dis trict, parish, township or hamlet; or touching any bastards chargeable or likely to become chargeable to such district, parish, townor allowance of ship or hamlet; or the recovery of any sum or sums for the charges or maintenance of such bastards; or the election or appointment of any officer or officers, or the allowance of the accounts of any officer or officers of any such district, parish, township or hamlet, any law, usage, statute, or custom to the contrary in anywise notwithstanding." (a)

boundary, or order of removal, or settlement, or charge of bastards, or election of officers,

accounts.

(a) Before the passing of this act it had been determined on an appeal against a poor-rate, because certain persons were not rated, that a parishioner, who was liable to be rated, but not in fact rated, was a competent witness to prove rateability of the persons omitted. Rex v. Prosser, 4 T. R. 17. Peake's Ev. 157,

158.

the

So also an inhabitant, who was not rated, was a competent witness on an ap peal between his own parish and another. Rer v. Little Lumley, 6 T. R. 157. Though left out of the rate for the mere purpose of making him a witness. Rea v. Inh. of Kirdford, 2 East, 559. But where his son was rated for the property held by him he was deemed incompetent. Rer v. Killerby, 10 East, 292.

Peake's Ev. 158.

A parishioner paying rates was held to be a competent witness in an action defended by an order of vestry, directing the costs to be defrayed out of the rates, such order being illegal. Yates v. Lance, 6 Esp. 132.

On the construction of that part of this statute which refers Decisions on "to any matter relating to such rates or cesses," the authorities this statute. appear to be in some degree unsettled and conflicting.

Meredithv. Gilpin and others, M. 59 G. 3., 6 Price, 146., in an action of trespass against the overseers of a township, where the principal point was, whether the lands in question were vested in the overseers under a local act of parliament, the Court of Exchequer determined that a rated inhabitant of the township was not an incompetent witness on the part of the defendants, although the land in question, if vested in the defendants, would be vested in trust for the township, and in aid of the poor-rates. In this case the Court of Exchequer considered the matter in issue as one relating to the

rates.

In Marsden v. Stansfield, H. 1828., 7 B. &. C. 815., it was held by the court of K. B. that upon an issue whether a certain messuage was situate within a chapelry, a person who occupied rateable property within the chapelry was a competent witness to prove that it was. Bayley J. said that the substantial question in the case was, whether the owner of certain property was liable to contribute to the rates of the chapelry; and that was a question relating to the rates or cesses of the district within the stat. 59 G. 3. c. 170. § 9.; and the question whether certain land was situate within the chapelry was a matter relating to the boundary between the district and the adjoining district.

Again, in Heudebourck v. Langston, Mood. & Malk. 402., n. (b), tried at Westminster, April 25. 1829, which was an action of debt by the new surveyor of the highways against the preceding one, to recover the penalty under the Highway Act then in operation, for not accounting, with counts for money had and received, to recover the balance, Lord Tenterden ruled, after objection and argument, that the statute rendered the inhabitants competent for the plaintiff, although their evidence would tend to increase the funds in relief of the rates.

And in Rex v. Hayman, 1 Mood. & Malk. 401., which was an indictment tried at Exeter, August 14. 1829, for the non-repair of a bridge on a liability ratione tenure, with a count for the nonrepair of a highway by reason of the same tenure, Tindal C. J. ruled, that rated inhabitants of the parish in which the bridge and highway were situate were competent witnesses for the prosecution, being of opinion that they were within the scope of the statute. (But this must be considered as overruled by Rex v. Bishop Auckland, post, p. 1034.)

So in Doe v. Cookell, 6 C. & P. 525., which was an ejectment, tried at the Berkshire Summer Assizes 1834, and brought by churchwardens and overseers to recover a house alleged by them to be a parish house, Alderson B. held that an occupier of rateable property within the parish was a competent witness for the plaintiffs. The learned judge observed, that the statute 54 G. 3. c. 170. § 9. says, that the party shall not be incompetent in any matter relating to rates or cesses; and that the only way in which the interest of the proposed witness could be affected was by his evidence tending to recover property, the proceeds of which would diminish the rates or cesses.

On the other hand, in Oxenden v. Palmer, E. 1831., 2B. & Adol. 236., the court of K. B. held, that a person who pays highway rate

within a parish is not rendered a competent witness by the statute on trial of an issue, whether within that parish there is a custom that all persons residing therein, whose duty it is to cause the highways within the parish to be repaired, may take shingle from the sea-beach for the purpose of such repair; the custom not being, in the opinion of that court, a matter relating to rates or cesses within the meaning of the act.— And Ld. Tenterden in delivering judgment said, that the court entertained great doubts whether Meredith v. Gilpin (suprà, p. 1033.) was properly decided, and whether, even there, the matter could properly be said to concern the poor-rate within the meaning of the act of parliament. "The great object," his lordship added, “of that act was the poor. Their maintenance and regulation was the matter principally in the view of the legislature. The question raised in the present case was not one which in any degree related to the maintenance of the poor, but to an object perfectly distinct; it was not a case, therefore, within the general mischief contemplated by the legis lature, and recited in the preamble. Still the words of the ninth section are large enough to embrace objects not within the preamble; and taken by themselves, they would seem to render any person, liable to be rated to any rates or cesses of any parish, a competent witness for or against such parish in any manner relating to such rates and cesses. We cannot, however, say, that the question as to the existence of the custom to take shingle from the sea-beach for the purpose of repairing the highways in the parish, was one which did properly and strictly relate to rates or cesses of the parish, within the meaning of this act of parliament; and if it be not strictly and properly a matter relating to them, it is clear that the persons tendered as witnesses were not rendered competent by the statute. The custom which was the matter in issue, if it had been established, would not have affected any rate already made; and although it might affect future highway rates, we think that it was not on that account a matter relating to rates or cesses within the meaning of this act of parliament."

Accordingly in Rex v. Inhabitants of Bishop Auckland, 1 Mood. & Rob. 286., tried at Durham Summer Assizes 1833, which was an indictment against the township of B. A. for not repairing a highway, Bolland B. held, on the authority of Oxenden v. Palmer, that an inhabitant of the township, rated to the highway-rate, was not a competent witness for the defendants. And when another indictment against the inhabitants of the same township came on to be tried at the Spring Assizes 1834, Alderson B. rejected the evidence of inhabitants, as well those who were only liable to be rated as those who were actually on the rate, observing that the safest way was to abide by the words of the statute, and that he could not say, looking to those words, that the present was "a matter relating to the rates or cesses." And this decision was confirmed by the court of K. B., on an application for a new trial. 1 Adol. & Ell. 744.

The latest decision on the subject is Tothill v. Hooper, 1 Mood. & Rob. 392., tried at Exeter Summer Assizes, 1834. That was an action of assumpsit by an apothecary against an assistant overseer of a parish, who had directed him to attend a pauper lying sick under a suspended order of removal. The defendant resisted the action, by an order of vestry, on the ground of the unreason

ableness of the charges, and offered the testimony of a rated pa- Tothill v. rishioner, who had signed the order of vestry. It was objected, on Hooper. the part of the plaintiff, that the witness was inadmissible, and that this was not a case in which the stat. 54 G. 3. c. 170. § 9. had removed his incompetency. — Ld. Denman C. J. held that the statute was inapplicable, and rejected the witness.

In Rhodes v. Ainsworth, M. 1817., 1 B. & A. 87., an issue had been directed to try whether the inhabitants of the chapelry of Milne Row, at their own exclusive costs and charges, had immemorially repaired the chapel; the affirmative of that issue lay on the plaintiff, and his case having been closed, the defendants called a witness who was an owner of a tenement in the chapelry, which tenement was then in the hands of a tenant who was rated for the same and had paid the rates, having agreed to pay his rent without any deduction, under a lease of which many years of the term were then unexpired. The owner's name did not appear on the rate, and he resided in a different county. This witness was objected to on the ground of interest, and rejected by Wood B. at the trial at Lancaster summer assizes 1817. A new trial was moved for on the authority of Rex v. Kirdford, 2 East, 559. (suprà, p. 1032. n. (a), by which the principle is established, that to render a witness incompetent, his interest must be actually existing at the time, and not one that is expected. But the court held that the witness was properly rejected, having an interest in the event of the suit. The rate in question was a perpetual burden on the estate, and he as owner had an immediate interest in removing from that property a burden which went permanently to diminish the value. It is not necessary that the witness should be actually rated in order to render him incompetent; for the question is, whether he is a person coming to give evidence on a matter in which he is interested? and if he is, the law deems him incompetent.-Abbott J. observed, that the case cited was that of a mere occupier not having any permanent interest. [It must be observed that in this case the statute 54 G. 3. c. 170. § 9. does not appear to have been in any way brought to the attention of the court.]

In actions against churchwardens or overseers of a parish for 3 W. 3. c. 11. the recovery of money misspent by them, inhabitants of the parish, who do not receive alms or any gift out of the parochial collection, are made competent witnesses by stat. 3 W. 3. c. 11. $12.

be

By stat. 27 G. 3. c. 29., where pecuniary penalties, or parts 27 G. s. c. 29. thereof, are given to the poor, the inhabitant of any place may a competent witness to prove an offence, though the place may be benefited by the conviction of the offender, provided the penalty does not exceed 201. Rex v. Davis, 6 T. R. 177.

Upon an appeal against an order of removal, the respondents called as a witness a rated inhabitant of the appellant parish, who refused to give evidence: the sessions thought he was not compellable to do so. The court of K. B. held that the inhabitants of a parish, paying rates, were the parties grieved and interested in the event of the proceedings; that it was a long-established rule of evidence that a party to a suit cannot be called upon against his will by the opposite party to give evidence. Therefore the sessions were right in their determination. Rex v. Woburn, 10 East, 395.

Whether inha

bitants are not compellable to give evidence against their own parish.