the injury was caused by an engine calculated to inflict grievous bodily harm, or whereby grievous bodily harm might be inflicted.-(Wooton v. Dawkins, 28 L. T. Rep. 40.

SLANDER.-Privileged Communication.-The plaintiff, a butcher, had sold the defendant meat, which the defendant took home. The defendant the next day, or shortly after, entered the plaintiff's shop, and, in the presence of several customers then in the butcher's shop, said to the plaintiff, "I intended to have dealt with you, but I shall not do so, for you changed the lamb that I bought of you for a coarse piece of mutton." For this the action was brought, and to which the defendant pleaded, first, not guilty; second, a justification. The case was tried in Middlesex, before the Lord Chief Baron, when a verdict was returned for the defendant on the issue of not guilty, and for the plaintiff on the plea of justification, which the defendant did not attempt to prove. Slade, Q.C., now moved for a new trial, on the ground of misdirection. The learned judge directed the jury "that, if the defendant really and bona fide believed he was acting right, and that he believed there had been a change of the meat, as there was no proof whatever of any malice, that the defendant was not liable." That is certainly a misdirection; the plaintiff was not bound to show malice on the part of the defendant. [Martin, B.-Surely you can complain to your butcher of his giving you a bad piece of meat.] This was a good deal more than such a complaint as that; it was an assertion of a fraud-the changing one piece of meat for another, and of an inferior description. [Bramwell, B.-But for its being a privileged communication, it may, perhaps, have been actionable.] Pollock, C.B.-I also concur with the rest of the court, and think the communication made by the defendant to the plaintiff was a privileged communication, and that in this case there should be no rule.-(Crisp v. Gill, 29 L. T. Rep. 82.)

THE

JOURNAL OF JURISPRUDENCE.

WITNESS-BEARING.

We do not intend in this article to indite a lengthened THESIS upon the "Law of Evidence." That subject has been ably treated and most efficiently exhausted by the recent erudite treatise of Mr Dickson,—a work which ought to be on the table of every lawyer, judge, and practitioner.

We mean only to take a brief survey of the history of Witnessbearing in its important changes, and especially to notice the recent legislative measures for extending the competency of testimony, reserving the more difficult duty of testing credibility to Judge and Jury. All kinds of evidence are now in the concrete thrown into the crucible, and it rests with the judicial analyst to separate and abstract the wheat from the chaff-the pure from the impure, its too frequent alloy.

The history of witness-bearing, and the safeguards against false testimony, adopted and modified from time to time, by the exclusion of every class of witnesses subject to any taint whatever of suspicion, forms one of the most interesting chapters in the progress of our law. It was remarked by Jeremy Bentham :-"In the map of science, the department of judicial evidence remains to this hour a perfect blank. Power has hitherto kept it in a state of wilderness: Reason has never visited it." Since the time this remarkable man penned this passage, Reason has visited and done much to clear this field from its noxious weeds, and sow some plants of virtuous growth.

The jealousy of our ancestors against the admission of evidence through any media of taint was morbidly exclusive, and the progress of more liberal views was much slower with us than amongst our southern neighbours. At one period, the whole of the softer sex were, by statute of King Robert, excluded from giving testimony, obviously on the erroneous supposition, that, being the weaker vessels, they were not able to withstand the influences of the sterner

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sex.

Mr Erskine, with equal ingenuity and gallantry, apologizes for this cruel stain on the female character in the following manner:-"It is absurd to affirm that the law hath rejected the testimony of women from any supposed incapacity of judging rightly concerning them." "It would therefore be more agreeable to the character justly due to the softer sex, in point of capacity, to say, not that women are debarred, but that they are excused, from bearing testimony in courts of law, except where there is a penury of witnesses, in which case their giving evidence is necessary."—(B. iv., tit. 2, sec. 22.)

The old decisions do not bear out the apology of the learned commentator. In the old case of Lady Monteith against the Earl for divorce, Dec. 1, 1683, the grounds stated for excluding females from witness-bearing are thus summed up :-"Let not women become masters of our lives, nor of our honours and reputations, which are yet dearer to us. 1st, Modesty and shamefacedness debar them. 2d, The economic employments within doors are enough to take them up. 3d, Their passions of love, anger, hatred, revenge, are high and boiling, and ready to transport them to great extremities.” -(Mor. 16685.)

At one period of our history, both tenants and servants, of both sexes, were excluded from being witnesses for or against their landlords or masters.-"The testimony of menial or domestic servants is rejected on account of the master's influence over them, which tends to cramp or restrain that freedom that witnesses ought to be possessed of at making oath. But masters may bear testimony in behalf of their servants."-(Ersk. B. iv., tit. 2, sec. 25.)

In the case of the Laird of Cambusnethan, July 1566, the following persons were enumerated as being debarred from being witnesses:-"The master or lord of the partie quha sould produce the witnessis; his baillie; he that weiris his leviray or robis; he that is of his counsal or retinew; he that is at that time his servand, or he that sall efterward zeild him service; his tenant that haldis land of him and paysis him ferme maill and dewtie."

In Dr Sibbald's process of fire and burning his house, the Lords sustained the servant maid in the house as a necessary witness in facto domestico.-March 1685, Mor. 16694.

Relationship was an objection of wide application. Husband and wife, parent and child, brother and sister, either by consanguinity or affinity, and uncle and aunt, and nephew and niece, by consanguinity (but not by affinity), were all excluded from giving testimony for each other. And even in criminal cases, parent and child had the option of declining to give evidence against each other-a most cruel option, since, if refused, there must have been fairly induced the impression that enmity had shut up the bowels of affection in ties the most intimate.

It was a very illogical ground for exclusion, to hold that all within a certain defined and arbitrary line or circle of relationship, must

consequently be so knit in amity and brotherhood, as to prefer the affection of blood to the power and peace of conscience, and love of truth and justice. Shakespere thought otherwise, when he held that a man might be "more of kin, yet less than kind.”

The rule was gradually relaxed in certain cases of necessary penuria testium, as if necessity could ever stand in place of principle, or that a witness, when he could neither be corroborated nor contradicted, was worthy of credit, and only so, when he thus stood alone, and had a monopoly of truth or falsehood. In many domestic cases not falling within the privileged classes (such as between master and servant), the exclusion of relations, often the only possible witnesses, operated in the most cruel manner to the defeat of justice.

The tendency of our law in later times has set in the direction of that of England, namely, to admit testimony to the utmost, almost to any, extent, but to reserve consideration of the credibility of each witness until compared and weighed with corroborative testimonies.

This more sensible mode of procedure, however, was much more suitable to the Courts of England than of Scotland, and precedents from the former were sometimes of dangerous application in the practice of the latter. In the former, the witnesses were seen, and their manner appreciated, by those who were instantly thereon to weigh and decide their credibility; whereas, in the latter, they were (and too much are still) examined before persons who had no interest or concern whatever in the subsequent application of the evidence, but were mere automatons or machines for recording the evidence, with as little of active mind, and with much less precision, than the photograph. The evidence was to be judged of by other persons at a distance of time, through the medium of print or writing, where the least credible witness might with ease be made to appear the most worthy of credit. It was well said by a judge of the last age, that thus to decide upon the credit of a witness by reading the record of his deposition without ever seeing the witness himself, was vastly similar to the practice of the quack, who prescribes his invariable bread-pill without ever seeing his patient. Quintilian was of the same opinion:-"In the first place, a witness is not likely to be deterred from giving false testimony by a sense of shame, when he sees no one present but the few who are appointed to attest his deposition; and, besides, his not appearing before the Court may be urged as a sign of mistrust in himself."

Whilst the stern exclusion of the female sex and the servile classes gradually gave way before the silent progress of civilization, the admission of relations was but recently obtained by the Acts 1840, 1852, and 1853: 3 and 4 Vict., c. 59; 15 Vict., c. 27; and 16 Vict., c. 20. By the last of these statutes, parties may be witnesses in their own cause, with the limitation however, in the case of husband and wife, of communications made by the one to the other during marriage (a limitation not very clear in principle, and often disregarded in practice), and excluding " actions in consequence of

adultery, or for dissolving any marriage or breach of promise of marriage, or in any action of declarator of marriage, or of nullity of marriage; putting to silence legitimacy or bastardy, or in any action of adherence or separation."

For the same reasons which occasioned the exclusion of these cases from the privilege, that more common class of ordinary cases of filiation and aliment of bastards should have been amongst the enumerated classes. The constant and flagrant instances of perjury in this class of actions is most painful; and the consequence is, that soon the majority of bastards will be filii nullius, and become the special charge of the Poor Law Boards.

Though not amongst the enumerated actions, yet the Court, from parity of reasoning, excluded a party from being a witness for himself in a declarator to prove him heir of entail as a legitimate son. -(Feb. 14, 1855, Sandilands.)

Infamy was a ground of absolute exclusion, and the rules which regulated this objection were of the most subtle description. In the times of Balfour, all were "infamous persons quha ar condamnit or fylit for ony notabil trespass, or refuses the rule of the law of God, or contemnis the statutis or discipline of the Kirk." Thus persons who were at any time convicted of perjury, or subornation of perjury, were absolutely and for ever excluded from witness-bearing. It mattered not the nature and extent of the lapse of truth, nor how long and how consistently the convicted party had, before or after his lapse, lived a life of truthfulness. No locus penetentiæ was afforded to this class.

In like manner, persons outlawed for not appearing to answer any criminal charge, or who were convicted by Jury of infamous crimes, such as theft, forgery, fraud, and aggravated assaults, were excluded from witness-bearing, but only so long as they were under punishment; whilst those who were summarily convicted of similar or even greater crimes by a magistrate, without a jury, suffered no stain whatever on their integrity. There were here not a few anomalies. Thus, the mode of trial was made the criterion of the amount of discredit, though doubtless this was supposed to be a pretty fair criterion of the degree of criminality. But all who have had experience in such matters, must know that such is not in practice uniformly

observed.

Whilst one solitary act thus sternly excluded from witness-bearing, no amount or extent of general bad character was allowed to exclude. There was also this rather illogical rule (which it is believed still exists), that a party in a case of assault may seek to discredit the party assaulted by proof of his general bad temper and quarrelsome disposition, but cannot be allowed to give evidence of any particular manifestation of these unfortunate temperaments. So that general opinions are thus preferred to special facts.

There was the startling rule introduced by 1 Will. IV., c. 37, a person who, the day previous to his fine being paid, or the