mony, he may not by this fubfequent act deprive the plaintiff or defendant of the benefit of his teftimony.

BENT V. BAKER, and another, in error. Hilary 29 Geo. 3. B. R. Affumpfit on a policy of infurance in the common bench. Plea the general iffue. Lord LOUGHBOROUGH tried the caufe.-The defendant produced George Bowden, an insurance broker, as a witness, to prove circumftances tending to fhew, that the underwriters on the fame policy were not liable to pay the lofs; who being fworn faid, that he was employed as a policy-broker by the plaintiffs, to procure the policy of infurance, in the declaration mentioned, to be fubfcribed by the defendant, and the feveral other perfons whofe names are fubfcribed thereto as affurers. And that he as fuch policy-broker, procured the fame to be fubfcribed by the defendant, as an affurer for one hundred pounds, in fuch manner as in the declaration is in that behalf mentioned, and that he, within the space of one hour after the faid policy had been fo fubfcribed by the defendant, and the other perfons whofe names are fubfcribed thereto prior to the witnefs, fubfcribed the fame policy for two hundred pounds, and became an affurer to the faid Peter Barker and John Dawfon, and that an action had been commenced against him at the fuit of the plaintiffs; and was then depending in his majesty's court of the bench at Westminster, as fuch affurer for the faid two hundred pounds, for and in refpect of the faid lofs alledged in the declaration, and in which action the fame queftion was depending as in this action against the defendant. And also that he, together with the defendant, and feveral other under-writers, upon the fame policy had filed a bill in equity, in the court of exchequer against the plaintiffs, for a difcovery of divers matters refpecting the policy and affurance for the purpofe of avoiding the fame, and alfo praying to be relieved against the fame, which bill in equity was then depending in the court of exchequer. And thereupon the counfel for the plaintiffs, on behalf of the plaintiffs, did then and there infift, that he was not a competent witnefs on behalf of the faid defendant, upon the iffue joined between the parties, whereupon the faid defen

dant

dant and his attorney, produced a release duly executed by them to the faid John Bowden, of all demands for any proportion or contribution of any costs, either in law or in equity, and that they would, at their own expence, procure the bill in equity to be difmiffed as to them; but which offer the faid plaintiffs did not accept, alledging, that the faid fuit was ftill depending, and there were other plaintiffs therein befides the defendant and George Bowden; whereupon the faid chief justice did then and there refuse to admit the evidence of the faid George Bowden, so offered as aforefaid. And the counfel for the defendant then excepted to the opinion of the chief justice; infifting, that the faid George Bowden was a competent witnefs for the defendant, touching the matters in question.

Lord LOUGHBOROUGH, C. J. C. P. figned the bill of exceptions on which the whole of the above proceedings appeared,

Chambre, for the plaintiff in error-argued, that there seemed to be three objections to the competency of the witnefs. First, that he had a direct intereft in the fuit, inafmuch as he expected to contribute to the costs of it. Secondly, that he had an intereft in the question put to him. Thirdly, that he had a collateral intereft, arising from his being a party to a fuit in equity, which might be af'fected by the decifion of this fuit. In anfwer to the first, prima facia, every witness must be taken to be competent until the contrary appears: the plaintiff therefore should have fhewn fome fact in this case to difqualify the witness. It fhould have been stated, that the witnefs was under fome engagement to contribute to the cofts; whereas it only appears that he expected fo to do, which may mean a voluntary act. But even if there were any objection on this head it was entirely awed by the releafe, which was executed by both the defendant in the action, and his attorney. As to the fecond objection, the general rule appears from the King, v. Bray, and Abrahams, v. Bunn, to be, that a witnefs is competent, unless he has an intereft in the event of the fuit; though there are indeed exceptions to that rule, one of which is fuppofed to be, that of an under-writer on the fame

policy in any action brought on that policy. But it is not neceflary to contend here, that this is not an exception to the rule, because it does not apply to this witnefs. He was not originally an under-writer on the policy for himself, but acted as agent for the perfons for whom the policy was effected. And when he had difcharged his duty as agent, he was a competent witness for each party then he could not by any act of his own, diveft the parties of that right which they had in his teftimony; ftill lefs could he do this by any act in concurrence with the affured themfelves. In fome cafes, even though a perfon has an immediate intereft in the fuit, he must be admitted a witnefs from neceffity, as where an agent of one perfon pays money to another, the agent is actually interested in proving the payment, as he thereby difcharges himself to his principal. And the admiffion of this witnefs will not be productive of fuch mischievous confequences as the rejection of his teftimony, because in contracts of this fort much depends on the reprefentation of the broker. The third objection cannot be carried farther than the fecond, because it arifes from the intereft which he had acquired to himfelf, by improperly fubfcribing the policy, after he had acted as an agent between the parties; befides, it has been repeatedly determined, that it must be a direct and not a confequential intereft only, to render a witnefs incompetent. Carter, v. Pearce, and Bailey, v. Wilfon, cited in Abrahams, v. Bunn. Ante

And here it is to be observed, that this created no intereft in the witnefs, nor even any bias on his mind; for this record could not affect the fuit in equity. Here too the bill in equity could not have been affected by this verdict as against this witness, if it were obtained on his teftimony alone for no man can recover on his own teftimony: the courts of equity would oblige him to make out his cafe on other evidence. At all events, the fame answer may be given to this as to the first objection, that it was done away by the offer at the trial, to dif mifs the bill as to him, and to pay all the cofts. In Goodtitle, v. Wilford, where the devifee in remainder of a copyhold eftate, was called to prove the fanity of a teftatrix,

teftatrix, on his offering to release all his intereft to the heir at law, he was held to be a competent witness, although the heir at law refused to accept the release. Vide the cafes cited and alluded to in this argument. Ante

Wood, for the defendants in error-whatever inconvenience may arise to the public, from brokers underwriting policies of infurance in their own names, it must be remedied by the legislature: but the established rules of evidence cannot be broken. Though Bowden might poffibly have been a competent witness to fome purposes, among others to prove the subscription of any under-writer, because he could fpeak to the fact merely in his character of agent; yet he was incompetent for the purpose for which he was called, namely, to prove fomething in which he was equally interested with all the other under-writers. That intereft was a fatal objection to his teftimony: and the court will be lefs inclined to over-rule this objection, because it was in the witnesses power to remove his incompetency by paying his fubfcription. It was exprefsly determined in Ridout, v. Johnfon. Dougl. 134. that one under-writer cannot be a witnefs in an action between other parties on the fame policy. That rule has conftantly prevailed fince; and it Thews that if the witness be interested in the question put to him, it is the fame objection as if he were interested in the event of the fuit. There is alfo another rule which would defeat the evidence of this witnefs, that a party shall not be permitted to give teftimony to avoid an inftrument which he himself has executed. This was ruled in Walton and Shelly, 3 Term. Rep. 296, where the witnefs was called to speak against his own interest: and there the rule refpecting under-writers was recognized. As to the intereft which it is contended the other under-writers had acquired in Bowden's teftimony; that argument is intitled to little confideration, for they must all be taken to have fubfcribed at the fame time, and the risk and the interest of the parties are the same. And if the plaintiff's argument were to hold, it would become neceffary to confider at what time the witness became interested: but it has always been held to be a fufficient objection to a witness, that he is interested at

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the time of the trial. Otherwife the fame argument would also apply to the cafe of commoners; and if one purchased his right of common a short time previous to the trial, he might be examined to any matter that arose before he became interested, fince it might equally be said, that the other commoners had acquired a right in his teftimony, of which he could not deprive them, by becoming a commoner himself. As to the cafe of Barlow, v. Vowell, Skin. 586. Bull. N. P. 290. where HOLT, C. J. ruled, that a perfon who made himself a party in intereft, after a plaintiff or defendant had an interest in his teftimony, could not deprive them of a benefit in his testimony, as if he be a witness of a wager, and afterwards bet on the fame matter: that only fhews, that after the wager he is a competent witness to prove the contract itself, but nothing more. For in Refcous, V. Williams, 3 Lev. 152. which was an action for money had and received, against the defendant, in whofe hands a wager had been depofited by the defendant and another, it was held, that a perfon who laid the fame wager was not a competent witnefs for the perfon on whose fide he betted. Now a policy of affurance may be confidered as analogous to a wager; and each under-writer has the fame fort of intereft which the better has in the cafe of a wager.

Chambre, in reply the cafe of Walton, v. Shelly, did not establish as a general pofition, that in no cafe can a witnefs be called to invalidate an inftrument which he himself has figned; for in a cafe which happened foon afterwards at the fittings, BULLER, J. held, that the rule only extended to fuch inftruments as are negotiable; so that it does not apply to a cafe like the prefent. But even if it were to be confidered as a general rule, ftill the parti cular circumstances of this cafe furnifh an exception to it. The cafe in Levinz is contrary to univerfal practice; and it is anfwered by the rule laid down in Skinner, which is decifive on this head. It makes no difference here, whether the objection to this witness arifes from his being interested in the question, or in the event of the caufe, fince the releafe difcharged him from every intereft in both. Befides, he was rejected generally; now,