Page images

this it should seem, that if the actual marriage is valid, (as where the woman after the abduction consents to the marriage voluntarily, and not induced by any precedent menace,) her evidence ought not to be allowed. (i)

Secondly, on an indictment for a second marriage during the continuance of a. former marriage, though the first wife cannot be a witness (2), yet the second wife may after proof of the first marriage. (3)

Thirdly, a wife may be witness on the prosecution of her husband for an offence committed against her person (4). This was determined by all the judges present on Lord Audley's trial: and has been since confirmed by the greatest authorities (5), on every principle of humanity and justice. So in Azyre's case, on an indictment for beating his wife, Lord Raymond suffered her to give evidence (6). A wife is permitted to exhibit articles of the peace against her husband (7); and the Court will not receive affidavits on the part of the defendant, to contradict the truth of the articles exhibited against him, and prevent his giving surety (8). So, an affidavit of a married woman has been admitted to be read, on an application to the Court of King's Bench for an information against her husband, for an attempt to take her away by force after articles of separation (9): and it would be strange, says Mr. Justice Buller, to permit her to be a witness to ground a prosecution, and not afterwards to be a witness at the trial (10). On the trial of a man for the murder of his wife, her dying declarations are evidence against him (1i). It has been said indeed, that a wife may

[ocr errors][ocr errors]

be witness against her husband in case of high treason (1); but there are authorities the other way. (2)

Fourth]y, where the wife has made contracts with the authority and consent of the husband, she has been considered his agent for that purpose, and her representations are evidence against the husband, who has permitted her to contract for him with third persons, on the same footing as the representations of any other agent (3). Thus, in an action of assumpsit by a servant for wages, the plaintiff was allowed to give in evidence a deed executed by the wife of the defendant at the time of the hiring, which, though void as a deed, was admitted in order to shew the terms of the contract. (4) *

Fifthly, Commissioners of bankrupt could not at common law examine the bankrupt's wife (5). But now by st. 21 J. 1. c. 19. s. 5 & 6., which recites, that doubts had arisen upon the point, it is provided, "that, after the party is declared a bankrupt, the commissioners may examine his wife on oath, for the finding out of the estate, goods, and chattels of such bankrupt, concealed, kept, or disposed of by such wife, in her own person, or by her act or means, or by any other person."

Sixthly, upon an appeal against an order of bastardy in the case of a married woman,. Lord Hardwicke and the

(i) Dictum, in Grigg's case. SitT. C 141. Palethorp v. Furnish, 1 E,p. N. Raym. 1. cited in Gilb. Ev. 119. and P.C. 511. n. Gregory v. Parker, 1 Bull. N. P. 189. Camp. N. P. C. 304. See x$ Ves. 159.

(a) Brownlow 47. (4) White v. Cayler, 6T. R. 176.

(3) Emerson 7. Blonden, 1 Esp. N. P.' (5) Anon. 1 Brownlow, 47.

* In an'anonymous case reported in 1 Strange, 517, where an action was brought for nursing the defendant's child, Pratt C.J. admitted evidence on the part of the plaintiff", that the defendant's wife had repiesemed her Agreement with him to be for so much per week; because such matters, he said, are usually entrusted to the women. Bull. N. P. 287. S. C. But it has been since determined, that the declaratioas of the wife are not admissible against the husband, in an action Drought by him in right of bis wife. Alban and Wife v. Pritcliett, 6 T.R. 680.

F 3 other other Judges held, that she was a competent witness to prove her criminal connection with the appellant, though her husband was interested both in the question and in the event of the cause, because such a fact so secret in its nature can scarce ever be proved by other evidence (1), But this is only from the necessity of the thing: she is not competent to prove any other fact, as want of access (2), which other witnesses may be reasonably supposed capable of proving. To admit such evidence would be giving the wife a power to bastardize her child, and to discharge tho husband from the burthen of its maintenance.

On an appeal against the removal of a woman as the widow of A. B. deceased, prima facie evidence of the marriage having been produced on the part of the respondents, the Court of King's Bench determined, that the woman was a competent witness, on the part of the appellants, to disprove the marriage. (3)

In the case of Campbell v. Twemlow (4), which lately came before the Court of Exchequer on a motion to set aside an award, one of the grounds of the application was, that the arbitrator had rejected the evidence of a woman Called on the part of the plaintiff) who had cohabited with him for several years and passed as his wife, but who would have stated, that she had never been married to him. The point was much argued at the bar. The Court, considering it a doubtful question, (as the report states,) declined giving any opinion, as it was unnecessary for the determination of the case; and they refused the motion, on the ground, that the opinion of the arbitrator was final and conclusive, all matters both of law and fact having been left to his decision. Mr. Baron Richards cited a case, before Lord Kenyon on the Chester circuit in the year 1782, where on a trial for

[ocr errors][ocr errors]

forgery the prisoner called a woman as his witness, whom he had himself in Court represented to be his wife, but afterwards, on hearing an objection taken to her competency, denied that she was married to him, and Lord Kenyon refused to admit her evidence.

Seventhly, it has been ruled at nisi prius, that a wife may be witness, in an action between third persons not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand; as, in an action between third persons for goods sold and delivered, to prove the goods sold not on the credit of the defendant, but on her husband's credit (1). This evidence, it may be said, was in some measure against the husband, though he was not a party in the suit. On the other hand, to reject her evidence in such a case would be a hardship on the defendant, who may have no other means of defending himself against an unjust demand: and though upon her testimony the defendant may have a verdict, and an action may afterwards in consequence be brought against the husband, she would not then be admitted as witness, nor could her evi-: dence in the first suit be produced against him.

Sect. IV.

Of the Effect of Admissions by a Party to the Suit, or by his Agent, against the Party's Interest.

As the parties to a suit are excluded from being witnesses on account of their interest, statements or representations made by them against their interest must be evidence against them, and in many cases they will be the strongest evidence. Upon this principle the free admissions of one of the parties to a suit on the matter in issue, and the voluntary confession of a prisoner under a criminal charge, are always received in evidence against the party.

(1) Williams v. Johnson, by King C. J.,1 Str. 504. Bull. N. P. 187. S.C.

F 4 First, First, with respect to admissions;

The admissions of a party to the suit against his interest are evidence in favour of the other side, whether made by the real party on record, or by a nominal party who sues as a trustee for the benefit of another (1), or whether by the party who is really interested in the suit though not named on the record (2). Thus, in an action of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought, the defendant proved, that L. D. had said in a conversation about this bond, that the defendant owed nothing, upon which the jury found for the defendant: on a motion for a new trial, it was argued that the declarations of L. D., who was no party to the action, ought not to affect the plaintiff, and affidavits were offered to explain L. D.'s evidence; but the court said, that the affidavits were inadmissible, and that it was to be considered as if L. D. was the plaintiff, the action being for L.D.'s benefit (3). And in an appeal against the removal of a pauper, declarations by a rated inhabitant of either parish, concerning the facts in issue, are admissible in evidence, not only against himself, but also against the other rated inhabitant:; of his parish (4): for they ai'e the parties really interested, although the appeal may be entered in the names of the parish officers; and they are not compellable as parties to give evidence of the fact. (5)

It may beinferred from a former part of this section, that in a civil suit against several persons, who are proved to have a joint interest in the decision, a declaration made by one of those persons, concerning a material fact within his knowledge, is evidence against him, and against all who are partics with him to the suit (6). In an action of covenant therefore against two defendants, the affidavit of one of

(i) Bauerman v. Radenius, 7T. R. (4) R. v. Hardwick, it East, .578.

6*4. (5) 11 East, .589. R. v. Woburn,

(1) R. v. Hardwick, 11 East, 578. 10 East, 395.

589- (6) 11 East, 589.

(3) Hanson v. Parker, 1 Wils. JJJ. Smith v. I,voni 3 Campb. N. V. C. 465.

11 them

« PreviousContinue »