The privilege of witnesses to refuse to answer questions which tend to criminate them will be discussed subsequently.

SECT. 5. On the Incompetency of Husbands and Wives as Witnesses for or against each other.

The concluding words of the 3rd section of the 14 & 15 Vict. c. 99, declare that nothing contained in the act

"Shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband."

The first question which arose on the construction of this clause was as to the competency and compellability 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 (i); but it appeared that it was the intention of the Legislature to make them competent. And now, by the 16 & 17 Vict. c. 83, 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 this provision does not extend to criminal cases, nor to cases of adultery (s. 2); and neither husband nor wife is compellable to disclose any communication whatsoever made to him or her by the other

(i) Barbat v. Allen, 7 Ex. 609; Stapleton v. Crofts, 18 Q. B.

during marriage (s. 3). These principles are incorporated into the Indian Evidence Act (k).

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 new County Courts, under the 9 & 10 Vict. c. 95, s. 83. The exceptions, therefore, to the existing rule of their competency are to be sought only in criminal cases, and cases of adultery. In criminal cases the general rule has always been that husbands and wives are not competent to give evidence for or against each other (1), 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 (m); 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 (n). But 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 (0). In high treason it has been

4

doubted whether a wife may not be made a witness against her husband (p). And in all cases where the husband is indicted for a personal injury to the wife, or the wife for a personal injury to her husband, the injured party is a competent witness against the other (q). The dying declarations of a wife who has been murdered by her husband, if not otherwise inadmissible, are evidence against him (r). 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 (s).

It has also been held that, propter bonos mores, neither husband nor wife is competent to prove non access, in order to bastardize the issue.

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 same (t); though such evidence would be, of course, open to suspicion.

SECT. 6. On Matters not proveable by a single

Witness.

As a general rule a jury is quite justified, if it think proper, in finding a verdict on the uncorroborated statement of a single witness; or on the unaided testimony of any documentary evidence however

(p) R. v. Griggs, T. Raym. 2.

(q) R. v. Audley, 1 St. Tr. 393; R. v. Ayze, 1 Str. 635. (r) R. v. John, 1 East, P. C. 357.

(s) Reeve v. Wood, 5 B. & S. 364.

(t) Cooper v. Lloyd, 6 C. B. N. S. 519.

slight, provided it be admissible. Even where the only evidence consists of the directly opposite statements of adverse witnesses the jury may believe which they like. But in charges of treason no person can be convicted but upon the oaths and testimony of two lawful witnesses, either both to the same overt act or one to one, and the other to another overt act of the same treason, unless the accused shall willingly and without violence in open court confess the same; and if two or more distinct treasons of divers heads or kinds shall be alleged in one indictment, one witness produced to prove one of these treasons, and another another, shall not be deemed to be two witnesses to the same treason (u). So in order to convict a defendant of perjury it is necessary that there should be two witnesses to prove the falsehood; "for this reason, that if there be the oath of one person only against that of the defendant, it may be considered doubtful which of the two is true; but it is never necessary that there should be two independent witnesses to contradict the defendant on any one particular point, and it is sufficient that there should be two pieces of evidence, proved by separate witnesses, in direct contradiction to the statement of the accused on which the perjury is alleged (x)." A letter written by the defendant contradicting his statement upon oath has been held to render it unnecessary to call a second witness (y). In cases of bastardy also an affiliation order on a putative father cannot be made on the uncorroborated statement of the mother;

(u) 7 Will. 3, c. 3, ss. 2, 4.

(x) Per Wightman, J., R. v. Hook, D. & B. 607.

(y) Per Lord Denman, R. v. Mayhew, 6 Car. & P. 315.

P.

D

and the order will be bad unless it states that it was made on evidence corroborating the mother's statement in some material particular (z). So in divorce cases a decree will not be pronounced upon the uncorroborated evidence of a woman of loose character (a). The rules as to the evidence of accomplices have been considered previously (b). In Courts of Equity where the defendant "positively, clearly, and precisely" denies by his answer any matter alleged on the bill, the denial must be countervailed by sufficient evidence of two witnesses, or of one witness and of circumstances, which is as good as two witnesses: otherwise the Court will make no decree against the defendant (c). The alterations of practice have, however, rendered this rule less applicable than formerly (d). Nor will Courts of Equity consider a pecuniary demand against the estate of a deceased person established by the oath of the person making such claim unsupported by any other evidence (e). The law on this head is substantially the same in India (f).

(z) 7 & 8 Vict. c. 101; 8 & 9 Vict. c. 10; R. v. Buckinghamshire, 3 Q. B. 800; R. v. Berry, Bell, 95.

(a) Ginger v. Ginger, L. R. 1 P. & D. 37.

(b) Vide supra, p. 38.

(c) Per V. C. K., Williams v. Williams, 12 W. R. 663; cf. Holdernesse v. Rankin, 2 De G. F. & J. 272.

(d) Per Lord Justice Turner in Holdernesse v. Rankin, ubi