Thomas Marin, the prosecutor offered as a witness.
Objected that he might have restitution, that he was interested, and that the practice had been otherwise; and cited Gilb.Evid. 135, 1 Salk. 283, 2 Hawk.P.C. 433, [2] Str. 728, 1043, 1104. Were cited in answer for the State: 2 Str. 1229, 4 Burr. 2252, and [1] Dall. 110.
Court took the opinion of the Bar who, except Miers Fisher, were against the admission. But the Court (a majority) overruled the objection.
N.B. Although by 2 Str. 1043, 1104, 1229, a party interested in a note can give evidence in a criminal prosecution on it for forgery, perjury etc., yet by 1 Morg.Ess. 271, and 1 Term 296, it seems the law was not so before Chief Justice Lee's time (vide 2 Hawk.P.C. 610, 611 and 1 Morg.Ess. 438). And to this day if the witness is to be a gainer or loser by the event of the cause, he cannot be a witness; and before 21 Hen.VIII, c. 11, in larceny the party robbed being a witness could not have the stolen goods as per 4 Bl.Comm. 356.
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