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session of, I see no reason why he should not be a witness for another defendant." (i)
Though a plaintiff cannot ordinarily examine a defendant as a witness in actions of common law, though nothing be proved against him, (because he is considered as having waived his testimony by making him a defendant,) yet the rule is much less strict in courts of equity, where defendants, who are made parties to a suit without having any interest, are allowed to be examined either for the plaintiff, or for their co-defendants (2). Where a witness for the plaintiff is by mistake made a defendant, the court will on motion suffer his name to be struck out of the record even after issue joined, and then he may be examined (3): or, in the case of an information, the attorney-general may enter a nolle prosequi as to one of the defendants, and so make him a witness. (4)
Of the Rule on the Sulrject 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 (5). No other relation is excluded (6); 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
(1) Bull. N. P. a8;. (5) Co. Lit. 6. b. Hawk. h. 1. c. 46.
(a) Barrett v. Gore and another, 3 >. 70. Gilb. T.v. 119. Bull. N. P. 286.
Atk. 401. Ambi. 303. 1Chao.Cas. (6) 1 Hale, P. C. 303. a Hale, P.
114. t Ball and Beatty, 99. C. 176. Hawk. b. 2. c. 46 s. 76.
(3) 1 Sid. 441. Bull. N. P. :85. Bull. N. P. 187. 1 Wds. 331.
(4) Re5i. temp. Hard. 163.
principle 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 arc 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 (i), 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 (2). 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 not evidence against him (3). 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 (4). 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. (5)
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; but conversations between her and the defendant are evidence against him (6). 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
(1) Co.Lit. 6. b. (4) Hall v. Hill,1 Str. 1094.
(2) Bcntley v. Cook, cited in R. v. (5) Per Cur. in Derm v. White and Cliviger, 2 T. R. 265. 269. another, 7 T. R. 111.
(5) Winsmore v. Grecnbank, Willes, (6) Bull. N. P. 28. Winsraore v. 577. Alban and others v. Pritchett, Greenbank. Willes, 577. 6 T. R. 680. Baker v. Morlcy, Bull. N. P. 28.
families (i), Lord Kenyon held that the letters of the wife to her husband, which had been written before any suspicion of a criminal 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.
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 properly 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.
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 tho husband against the carrier (4). And on a prosecution against several persons for a conspiracy, Lord Ellenborough C. J. refused to admit the wife of one of the defend
(1) Edwards v. Crock, 4 Esp. K. 1\ (4) Tiley v. Cowling, Ld. Ray. 744. C. 39. Bull. N. P. 243. But sec peat .Part 2.
(2) Davisv. Dimvoody, 4 T. R. 678. Ch. 2. Sect. 1.
(3) BUnd v. Aqsley, 1 New K«p.
ants 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. (1)
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 (2). Thus one great cause of distrust is removed, by making the confidence, which once subsists, ever afterwards inviolable in courts of law. In a case (3) 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."
The husband and wife are not allowed to give any evidence, that may directly criminate (4), or even tend to criminate each other (5). Thus, where an actual marriage has been proved between two persons, a woman cannot be suffered to prove an antecedent marriage between herself and one of the parties (6), the consequence of which might be a prosecution for bigamy: and it has been laid down by one learned judge, that if a witness has been examined to a material fact in a cause, which from its nature must have been known to him, (as, for example, to his own marriages) his wife cannot be called by the same party to contradict him (6), as such evidence might lead to a charge of perjury, and cause the husband to be apprehended.
(1) R. v. Locker and others, 5 Esp. (5) t H. P. C. 301. Broughton v
C. 107; and see R. v. Frederick and Harpur cor. Holt C. J. a Lord Rajm.
another, i Str. 1094. S. K 752. R.v. Cliviger, 2 T. R. 263.
(a) Monroe v. Twisleton, cited in (6) R. v. Cliviger, 2 T. R. 263, by
Aveson v. Lord Kiunaird, 6 East, 191. Ashurst J. Mr. Justice Grose (the only
(3) Barker v. Sir Woolston Dixie, other judge in Court; did not mention Rep. Temp. Hard. 264. this as the ground of his judgment, nor
(4) M.iry m Grigg's case, Sir T. did h« notice that part of the case. Raym. 1.
The case of the king against the inhabitants of Cliviger, which supports the two last positions, was shortly this. On an appeal against an order of removal of a pauper and also of a woman as his wife, the respondents having proved the marriage, the appellants called the man for the purpose of proving a former marriage with another woman, but he swore directly the reverse; they then called that 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, for the reasons which have been mentioned. This case docs not go so far as to decide, that where a witness proves a fact on one side, the adverse party shall be precluded from calling the husband or wife of the witness to disprove that fact. And as the most serious inconveniencies might result from the adoption of such an exclusive rule, which would be a bar to the full and complete investigation of the subject, (even in cases, too, where the property, the character, or even the life of the party may be at stake,) it may perhaps be safely laid down, that such contradictory evidence would be admitted. And many cases might be supposed, in which it would be extremely desirable, and perhaps necessary to public justice, that the sa?ne party, who calls the husband as witness, should afterwards be allowed to prove by the evidence of his wife, that the fact is different from what he has stated; for although they may directly contradict each other as to a particular fact, it will not follow that either party has been guilty of perjury.
There arc several exceptions, to which the reason of the general rule on this subject does not apply, or where it is outweighed by considerations of higher importance.
First, if a woman is taken away by force and married, inceptions, she may be witness against her husband indicted on st. 3 H. 7. c. 2., for she is not a wife de jure, a contract obtained by force having no obligation in law(1). From
(t) Swcnil.en's cist, 5 S;. Tr. c;ted Rep. Temp. Hard. 83. I Hale 456. Bull. N. P. a86. Rtms^y'i caie, V. C. 5os. 661.
F 2 this