Cook v. Corn

It is at best very doubtful, unless it could be made appear that the plaintiff acted through fraud, or with a design to defeat the defendant of his testimony.¹ It is also *Page 342 another question whether, after a witness has been once sworn and examined he shall be disqualified from interest. *Page 343

In this case, however, it appears, the man was ruled to swear in the County Court.

HUMPHREYS and POWEL, JJ., thought the witness had not been sufficiently interrogated; he might have been asked if he were not equally interested on both sides, when he would be competent.¹ Upon this ground a new trial would be proper.

¹ ORIGINAL NOTE. — The modern rule which was laid down in cases like the present by the Court of King's Bench, in the case of Bentv. Baker, 1798, may admit of considerable doubt in relation to the generality of the proposition, "that where a person made himself a party in interest, after a plaintiff or defendant has an interest in his testimony, he may not, by this, deprive the plaintiff or defendant of the benefit of his testimony." It is admitted that this was the opinion of perhaps the greatest common lawyer who ever sat in England, Lord Holt, in the case of Varlow against Vowell, Skin. 586. The circumstance of the case, however, did not seem to warrant so general a proposition as that laid down in Bent v. Baker.

The following occurs as the most rational positions: —

1st. Whenever a person is called upon to witness a transaction, and he takes upon himself to do so, then he should not have it in his power, by making himself interested afterwards, to deprive either party, thus calling on him, of the benefit of his testimony.

2d. Though a person may not have been called to witness the transaction, but knows circumstances advantageous to either party, he ought not to deprive either of such knowledge, by becoming bail for either plaintiff or defendant, in the action as was in Hawkins v. Perkins, 1 Str. 406.

3d. Neither party to the suit, should, by an act of theirs, intentionally deprive the other of the benefit of another's testimony, by any act or persuasions.

4th. Though a person hath not been called as a witness, yet he shall not, with design to deprive another of benefit of his testimony, be permitted to do so, by making himself interested.

With these exceptions, the general principles recognized in the case of Bain v. Hargrave, reported in Peak's Evidence, 136, must obtain. In that case, Lord Kenyon said, "a man might come voluntarily and charge himself with a debt, but he could not be compelled to charge himself civilly, any more than make himself liable to a criminal prosecution."

This general proposition seems compatible with a just sense of the general rights of men, and ought never to be lost sight of. It may admit of exceptions as stated above, — but with great deference to the opinion of Lord Kenyon, in Bent v. Baker, it would seem improper, almost to sweep from the law books so important and leading a principle to the interest of men in a free country.

The position would abridge rational liberty further than seems just.

A transaction takes place between A. and B., of which at that time, or perhaps afterwards, C. acquired some knowledge accidentally, or without being called upon. Afterwards, in the course of doing his own business, without a recollection of the affair, or view to either party, his interest comes in competition with one or the other of those parties, arising from the original transaction. In such a case ought C. to be compelled to swear against himself in a court of law? Self-preservation is the first law of nature, and it would seem to be an attempt to weaken its impression on our character, further than the rules of justice or necessity require in a court of law, to make a man give evidence against himself, where neither fraud nor fault could be imputed; one of two innocent men must suffer, the one who has honestly acquired a right, or the other who requires his evidence. By making such a person swear, we preserve an exception, but destroy the rule. See 1 Burr's Trial, 244, 245; 1 Am. L. J. 223; Taunton, 378; 3 Cr. 343; Swift's L. E. 24, 41, 77, 107; 8 Term Rep. 590.

¹ 4 Johns. 126; 1 Day, 403; Wil. ed. Bac. Ab. tit. Evidence B. in n.

This question was not asked by the counsel, I consider it therefore a virtual waiver.

But by all the Court, as the man was sworn in the County Court, if he cannot be compelled to swear, perhaps evidence may be given of what he did swear, which the defendant could not be prepared with.

Let a new trial be granted.

Appeal. — Payment on the trial below; John Bowen was sworn as a witness, and, being produced here by the defendant, he was sworn on hisvoir dire, at the instance of the plaintiff. Upon being asked, he stated that he was interested.

The defendant's counsel stated that this witness made himself interested to avoid being a witness. It was insisted by them, that, as they were entitled to his testimony with respect to the payment, they could not be deprived of it by any act of his, and especially as he had been once sworn in the County Court; they desired to know of the witness how he was interested. Objected by the plaintiff's counsel, that he was not bound to disclose. The witness was unwilling, and refused to answer, unless by direction of the Court. The Court then asked the witness, upon oath, whether he believed the disclosure sought for would be prejudicial to his interest? He answered positively it would, and that he became interested before the supposed transaction of payment; the Court permitted him to retire without being sworn in chief.

Verdict for the plaintiff, and rule for a new trial.

BARRY and HAYWOOD showed cause, relying upon Leach's Cr. Law, 145, 151; Peak, 129, 137, 186, 256, for the purpose of proving that the Court erred in not compelling Bowen, the witness, to answer on his voirdire.

WILLIAMS, in reply. — Agreeably to the Constitution, art. 11, § 9, no person shall be compelled to *Page 341 give evidence against himself; the Court therefore decided right.

HAYWOOD admitted a witness might be so situated, but in this case he might answer, not positively, but thus, "it is said." We are strongly inclined to think, that no person in a court of law can be obliged to give evidence against himself. The Constitution was particularly intended for criminal cases; the section relates to criminal proceedings, but we think the principle existed previous to the Constitution; it seems to be inseparably connected with the security and enjoyment of rational liberty, and we cannot at present see any difference between compelling a man to disclose a thing prejudicial to himself when sworn on his voirdire and in chief. The principle appears to be the same. As the witness says he became interested before the transaction to which he alludes, there is no necessity to look to the point, whether a person becoming interested after a fact, shall be compelled to swear; andper