SECT. III. Of the Rule on the Subject of Interest, considered with reference to the Husband or Wife of the Party. AS a party on record is not a competent witness, so neither is the husband or wife of the party competent to give evidence, either for or against the party.(1)(a) No other relation is excluded;(2) a father may give evidence for his son, or the son for his father; and though the relation between them may influence his testimony, it will not render him incompetent. The reason for excluding husband and wife from giving evidence, either for or against each other, is founded partly on their identity of interest, partly on a *principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. They cannot be witnesses for each other, because their interests are absolutely the same; they are not witnesses against each other, because it is contrary to the legal policy of marriage. It has been resolved, says Lord Coke, (3) that a wife cannot be produced against the husband, as it might be the means of implacable discord and dissention between them, and the means of great inconvenience. Thus, in an action brought by a woman as feme sole, the defendant cannot call the plaintiff's husband to prove her married, thereby to nonsuit her. (4) So where an action is brought by, or against the husband, or by the husband and wife jointly, in right of the wife, the declarations of the wife are (1) Co. Lit. 6. b. Hawk. b. 2. c. 46. a. 70. Gilb. Ev. 119. Bull. N. P. 286. (2) 1 Hale, P. C, 303. 2 Hale, P. C. 276. Hawk. b. 2. c. 46. s. 76. Bull. N. P. 287. 1 Wils. 332. (3) Co. Lit. 6. b. (4) Bentley v Cook, cited in R. v Cliviger, 2 T. R. 265, 269. (64) * 6.4 (a) Fitch v Hill et al, 11 Mass. Rep. 286. 1 [65] * 65 not evidence against him. (1) Therefore, in an action of assumpsit, brought by the husband for wages earned by his wife, her acknowledgment of having been paid by the defendant is not to be admitted against the husband. (2) So in an action of trespass against a husband and wife, the wife's confession of a trespass, committed by her, cannot be given in evidence to affect the husband(3) In an action for criminal conversation with the plaintiff's wife, the wife's letters to the defendant are not evidence for the defendant against the husband, nor is her confession, evidence for the husband against the defendant;(a) but conversations between her and the defendant are evidence against him. (4) Evidence of the manner in which the husband and wife used to live together, before her connection with the defendant, is clearly admissible, for the purpose either of increasing or lowering the damages; and in a case where they necessarily lived apart, being servants in different *families, Lord Kenyon held, that the letters of the wife to her husband, which had been written before any suspicion of a crimi (1) Winsmore v Greenbank, Willes, 577. Alban and others v Pritchett, 6 T. R. 680. Barron v Grillard, 3 Ves. & Beam. 165. Baker v Morley, Bull. N. P. 28. Nor is her declaration evidence for him. Hodgkinson v Fletcher 4 Campb. 70. (2) Hall v Hill, 2 Str. 1094. See Carey v Adkins, 4 Campb. 92. (3) Denn v White and another, 7 T. R. 112. (4) Bull, N. P. 28. Winsmore v Greenbank, Willes, 577. (a) Where a bill was filed in Chancery, by a husband against his wife, to obtain a divorce, and a feigned issue was awarded to try the fact of adultery, and the confessions of the wife were admitted, on the trial, in evidence to prove her guilt, it was held that the confessions of the wife, when connected with other proof, were, in the first instance, admissible; but that if it had appeared, that such confessions were made with a fraudulent design, or by collusion with the husband, in order to obtain a divorce, their effect would be destroyed. Doe v Roe, 1 Johns. Cas. 25. Vide Borden v Fitch, 15 Johns. Rep. 121. And Belts v Betts, 1 Johns. Ch. Rep. 1, where it is held that the confessions on a feigned issue to try the fact of adultery are not admissible, but Quare has not the rule gone too far? It bas been held, in Massachusetts, on a libel for a divorce, that the confessions of the guilty party, uncorroborated by other circumstances, were inadmissible to prove the fact of adultery. Baxter v Baxter, 1 Mass. Rep. 346. Holland v Hol land, 2 Mass. 154, & vide the case from 15 John, & 1 John. Ch. Rep. nal intercourse, were evidence to shew the affection which subsisted between them; but, on account of the obvious danger of collusion, it ought to be strictly proved, that the letters, which are offered in evidence, were written at a time, when the wife was not suspected of misconduct. (1) (a) In an action brought by a trustee to a marriage-settlement against a sheriff, to recover back the value of certain goods sold by him under an execution against a third person, that person was not admitted to prove, on the part of the plaintiff, that the goods had been conveyed in trust for the separate use of his (the witness's wife.)(2) In this case, as his debt would have been discharged by a sufficient execution, his evidence would have been in that respect against his personal interest;(3) but, on the other hand, it was the wife's interest to have the property secured for her separate use; and though the action was between third persons, yet it directly affected her interest, the point in issue being, whether the goods belonged to her or to her husband. (b) (1) Edwards v Crock, 4 Esp. N. P.. C. 39. (2) Davis v Diawoody, 4 T. R. 678. (3) Bland v Ansley, 2 New Rep. 331. (a) Vide Trelawney v Coleman. 1 B. & Alderson's Rep. 90. 2 Starkie, 191, same case. (¿.It is evident in Davis v Dinwoody ubi supra, that the wife of the witness had a direct and immediate interest in preserving to her trustee, the property of goods which had been settled to her separate use: it appears however, that where the interest of the husband or wife of the witness is not certain but contingent, such an interest is not sufficient to exclude the witness; post 71 and not ib. But, in a case in Pennsylvania, in which a witness who had married the widow of the intestate, was offered for the purpose of invalidating a sale of land, under an order of the Orphans' Court, to supply a deficiency in the personal estate of the intestate, it was held that the witness was incompetent, although he had released his interest of dower in the land in dispute, for notwithstanding his release, his wife would be entitled to dower out of the land after his death. Lessee of Snyder v Snyder, 6 Binney 483. Yeates, J. dissented, on the ground that the contingen. ey of the wife surviving the husband was too remote to exclude his testimony. 1 * 66 In an action of trover by a carrier, for a box which had been delivered to the defendant by mistake, the plaintiff called the owner's wife to prove what the box contained, but Holt, C. J. refused to hear her testimony, on the ground that the verdict in that action, with oath of what the carrier's witness swore, might be given in evidence to prove the value of the goods in a subsequent action brought by the husband against the carrier.(1) (a) And on a prosecution against several persons for a conspiracy, Lord Ellenborough, C. J. refused to admit the wife of one of the defendants to be a witness for the others: a joint offence being charged, and an acquittal of all the other defendants being a ground of discharge for the husband. (2) This rule of evidence, which has been adopted for the purpose of promoting a perfect union of interests and of securing mutual confidence, is so strictly observed, that, even after a dissolution of marriage for adultery, the wife is not admitted to give any evidence, which would have been excluded, if the marriage had continued. (3) Thus, one great cause of distrust is removed, by making the confidence, which once subsists, ever afterwards inviolable in courts of law. (b) In a case before Lord Hardwicke, C. J. he would not suffer a woman to be a witness, though her husband consented. "The rule," he said, "is for the peace of families, and such consent should never be encouraged."(4) The husband and wife are not allowed to be witnesses against each other in any criminal proceeding. Thus, (1) Tiley v Cowling, Ld. Ray. 744. Bull. N. P. 243. But see post. Part 2 Ch. 2. Sect. 1. (2) R. Locker and others, 5 Esp. C. 107. and see R. v Frederick & an other, 2 Str. 1094. S. P. (3) Monroe v Twisleton, cited in Aveson v Lord Kinnaird, 6 East, 192. (4) Baker v Sir Woolston Dixie, Rep. temp. Hard. 264. (a) Vide 39, D. (b) The wife is competent to prove any fact arising after the divorce. Monroe v Twisleton, Peake's Ev. App. lxxxvii. in a prosecution for bigamy, the first husband cannot be admitted to prove the former marriage against the wife;(1) such evidence would directly criminate, and therefore is not admissible for the reason above mentioned. So far, the principle is clear and well defined. But the rule, as laid down in the *case of the King against the inhabitants of Cliviger, is much wider and more general(2); and as it has lately undergone the revision of the Court of King's Bench, it will be necessary shortly to state that case. On an appeal against an order of removal of a pauper, and also of a woman as his wife, the respondent having proved the marriage, the appellants called the pauper for the purpose of proving his former marriage with another woman, but he swore directly the reverse; they then called the woman to prove the alleged former marriage. The court of quarter sessions rejected the witness; and the Court of King's Bench determined, that she was not competent to give such evidence. Both Mr. Justice Ashurst and Mr. Justice Grose, (the only judges present in court) were of opinion, that a husband and wife are not permitted, from a principle of public policy, to give any evidence that may even tend to criminate each other; that the objection is not confined merely to cases, where they are directly accused of a crime; but, even in collateral cases, if their evidence tends that way, it shall not be admitted; for although the evidence of the one could not be used against the other, on a subsequent trial for the offence, yet it might lead to a criminal charge, and cause the other to be apprehended. The authorities relied upon, in support of this decision, are a passage from Lord Hale's Pleas of the Crown(3), and the case of Broughton v. Harpur.(4) But the former authority goes no further than this, that the wife is not compellable to give any evidence, charging the husband with an offence; the (1) Mary Griggs' case, Sir T. Raym. 1. (2) 2 T. R. 263. (3) 2 H. P. C. 301. |