pellability of husbands and wives to give evidence for or against each other in civil proceedings. It was held in two cases, that they were severally incompetent (d); but it appeared that it was the intention of the Legislature to make them competent. And now, by the 1st section of the Evidence Further Amendment Act, 1853 (e), husbands and wives are rendered competent and compellable, in all civil cases, to give evidence "on behalf of any or either of the parties to the said suit, action or proceeding." But neither husband nor wife is compellable to disclose any communication whatsoever made to him or her by the other during marriage (ƒ). These provisions were, by the act, not to apply in criminal cases, or in proceedings instituted in consequence of adultery; but now, as stated above, the Evidence Further Amendment Act, 1869, has made the husbands and wives of parties to proceedings instituted in consequence of adultery competent witnesses (g). Previously to the 14 & 15 Vict. c. 99, husbands and wives had been rendered competent and compellable to give evidence for and against each other in the county courts, under the 9 & 10 Vict. c. 95,. s. 83. The only exception, therefore, to the existing rule of their competency is to be sought in criminal cases. In criminal cases the general rule is (d) Barbat v. Allen, 7 Ex. 609; Stapleton v. Crofts, 18 Q. B. 367. (e) 16 & 17 Vict. c. 83. (ƒ) After the death of either husband or wife the privilege enures for the benefit of the survivor; see O'Connor v. Marjoribanks, 4 M. & G. 435. (g) Vide supra, p. 38. P. E that husbands and wives are not competent to give evidence for or against each other (h), and this rule prevents such witnesses from being examined either as to circumstances that happened before marriage, or as to the fact of marriage. Nor can a wife or husband be a witness for or against any person who is indicted jointly with the husband or wife (i); nor, on an indictment for a conspiracy, can the wife of one of the conspirators give evidence in favour of the others; because their acquittal must enure to the benefit of the husband (). However, as stated above (1), by the Conspiracy and Protection of Property Act, 1875, the husbands and wives of the respective parties to the contract of service are competent witnesses in proceedings under that act; and by the 51st section of the Licensing Act, the defendant, in a proceeding under that act (as well as his wife), is a competent witness. Where a prisoner was indicted in one count for obtaining money from a savings bank by falsely pretending that a document had been filled up by the husband of T., and in another count for conspiring with T. to defraud the savings bank, it was held that T.'s husband could give evidence on the first count to prove that he gave no authority to fill up the document (m). In high treason it has been doubted whether a wife may not (h) Co. Litt. 6, b. (i) R. v. Thompson, L. R., 1 C. C. R. 377; 41 L. J., M. C. 112; 20 W. R. 728. (k) R. v. Locker, 5 Esp. 107. (7) Supra, p. 44. (m) R. v. Halliday, 1 Bell, 257. be made a witness against her husband (n). In all cases where the husband is charged with a personal injury to the wife, or the wife with a personal injury to her husband, the injured party is a competent witness against the other (o). The dying declarations of a wife who has been murdered by her husband, if not otherwise inadmissible, are evidence against him (p). On an information under 5 Geo. 4, c. 83, s. 3, against a man for neglecting to maintain his wife, and causing her to become chargeable to the parish, she is not a competent witness against him, for the offence is against the parish, not against her (q). The 12th section of the Married Women's Property Act, 1882 (r), provides that "every woman, whether married before or after this act, shall have in her own name against all persons whomsoever, including her husband, the same civil remedies and also (subject as regards her husband to the proviso hereinafter contained) the same remedies and redress by way of criminal proceedings for the protection and security of her own separate property as if such property belonged to her as a feme sole. . . . In any proceeding under this section a husband or wife shall be competent to give evidence against each other, any statute or rule of law to the contrary notwithstanding.” The 16th (n) R. v. Griggs, T. Raym. 2. (0) R. v. Audley, 1 How. St. Tr. 393; R. v. Ayze, 1 Str. 635. (9) Reeve v. Wood, 5 B. & S. 364. section of the same act provides that "a wife doing any act with respect to any property of her husband which, if done by the husband with respect to the property of the wife, would make the husband liable to criminal proceedings by the wife under this act, shall in like manner be liable to criminal proceedings by her husband." It was held by the Court for Crown Cases Reserved (s) that a husband could not give evidence against his wife in proceedings under the latter section, whereupon the Married Women's Property Act, 1884 (t), was passed, which recites as follows:-" Whereas by sect. 16 of the Married Women's Property Act, 1882, a wife is under the circumstances therein mentioned declared to be liable to criminal proceedings by her husband, and a doubt has arisen as to whether the husband is admissible as a witness against his wife in such criminal proceedings, while sect. 12 of the same act declares that in any proceeding under that section a husband or wife shall be competent to give evidence against each other, and it is desirable that the said doubt should be removed and the said act otherwise amended." The statute then enacts that "In any such criminal proceeding against a husband or a wife as is authorized by the Married Women's Property Act, 1882, the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence." (s) R. v. Brittleton, L. R., 12 Q. B. D. 266; 53 L. J., M. C. 83; 32 W. R. 463. (t) 47 Vict. c. 14. A bill has been recently introduced into Parliament by Lord Bramwell, having for one of its objects to render wives and husbands competent to give evidence against each other in criminal cases under certain conditions (u). In an action against a husband for necessaries supplied to his wife when living apart from her, the defence being the wife's adultery, she is admissible to prove the adultery (x); though such evidence would be, of course, open to suspicion. SECT. 6. Matters not proveable by a single As a general rule the testimony of a single witness, or any documentary evidence, however slight, provided it be admissible, is sufficient evidence to establish any fact, but it does not follow that it is satisfactory evidence for that purpose. Sufficient evidence, it may be observed, is the minimum which will satisfy the requirements of the law; satisfactory evidence is that which satisfies or convinces the court on any given point. It should be observed, that where an act of parliament enacts what shall be "sufficient" evidence of any fact, the question arises whether sufficient means prima facie or conclusive evidence. This was discussed by Jessel, M. R., in Ystalyfera Iron Company v. Neath and Brecon Railway Com (u) See the Bill in the Appendix. |