1842. O'CONNOR v. BANKS. Bompas Serjt. (with whom was J. Henderson) now shewed cause. The question is, whether Mrs. Garrow could not be called as a witness after her husband's MARJORI- death, in any matter affecting his estate, whether she had an interest in the suit or not. The interest of a widow must be taken to be, to increase her late husband's estate; but here the evidence of Mrs. Garrow went to decrease it. Although, therefore, she would not have been a competent witness for the plaintiffs, she was, for the defendants. In Monroe v. Twisleton, Lord Alvanley held, that a woman who had been divorced by act of parliament, was not competent to prove a contract made by her husband previously to the divorce; but the ground upon which his lordship so ruled, was, that it could not be permitted that occurrences intrusted to the wife, while the most perfect and unbounded confidence existed between her and her husband, should be divulged in a court of justice; in other words, that confidential communications between husband and wife should be held sacred. Doker v. Hasler was decided upon the same principle. evidence in this case is, confidential character, but merely to prove that she was authorised, as her husband's agent, to make a certain contract. In Aveson v. Lord Kinnaird (a), Lord Ellenborough put the principle on the right footing. Upon Monroe v. Twisleton being referred to (b), his lordship said, "That goes on the ground, that the confidence which subsisted between them at the time, shall not be violated in consequence of any future separation." And again, "I doubt whether, what Lord Alvanley there said, was meant to be applied to the circumstances of that But the object of the widow's not to disclose any thing of a did advance the money," which (a) 6 East, 188., 2 J. P. Smith, 286. (b) From Peake's Evidence (App. lxxxix. of 4th ed.). case (a), for it is generally considered that matters of domestic concern are intrusted to the wife. I rather consider him to have mentioned it as general doctrine, that trust and confidence between man and wife shall not be betrayed; and as such, it is sound doctrine." A wife may be a witness in an action for goods sold between third parties, to prove that the goods were sold on the credit of her husband, though such evidence operates against his interest; Williams v. Johnson. (b) In Henman v. Dickinson (c), which was an action by the indorsee against the acceptor of a bill of exchange, the wife of the drawer was admitted by Best C. J. at the trial, to prove that her husband had altered the amount of the bill before he indorsed it; and the court were disposed to uphold the decision of the Chief Justice, but the case was determined upon another point. In Rex v. The Inhabitants of Bathwick (d), upon a question as to the settlement of E., the wife of C., the respondents proved, by the testimony of C., his marriage with the pauper in 1829. The appellants, in order to prove such marriage void, upon the ground that C. had been married in 1826 to M. B., called the latter; who stated that she, in 1826, went with C. before a reputed clergyman of the established church, in Ireland, who, in his private house, there read to them the marriage ceremony; and it was held that M. B. was a competent witness to prove the first marriage, although her husband had been before examined, and proved the second marriage. The case of Beveridge v. Minter (e), however, is a decisive au (a) It was an action for the board and lodging of the defendant's infant child, and the wife was called to prove the contract. It does not appear whether the contract had been made by her. (b) i Str. 504. The (c) 5 Bingh. 183. Peake's Additional Cases had 1842. O'CONNOR V. MARJORI BANKS. 1842. O'CONNOR ข. MARJORI BANKS. thority in favour of the defendants. It was there held, that the widow of a deceased person was a competent witness for the plaintiff, in an action brought against the executors of such person, on a promise made by him in his lifetime. (a) The broad principle laid down in the old authorities has been very much. narrowed by the recent cases; and it must now be considered to be only applicable to cases where the evidence of the wife would directly charge the husband, or where the husband is directly interested. Talfourd Serjt., (with whom was Bramwell) contrà. The admission of such evidence might have the worst consequences, if a widow were actuated by hostile feelings towards her husband's representatives; and it would violate the sacredness of conjugal communications. [Maule J. The rule can hardly stand upon that ground. If the question had arisen between third parties, the widow might clearly have been called to prove she had pledged the plate with her husband's consent, or by his authority. That puts an end, therefore, to the sacredness of conjugal communications as the foundation of the rule contended for.] Rex v. Bathwick only shews that the evidence of a wife may be admitted, although it raise an imputation against her husband, which may possibly be made the ground of a charge against him. But it goes no further. In Buller's Nisi Prius, 286., the rule is laid down, with the reason for it: "Husband and wife cannot be admitted to be witness for each other, because their interests are absolutely the same; nor against each other, because (a) In Humphreys v. Boyce, 1 Moo. & Rob. 140., declarations by a woman, during coverture, of the nonpayment of money lent to her before marriage, were held by Lord Tenterden C. J. to be admissible in evidence for the plaintiff, in an action against her husband as her administrator. And see Barker v. Dixie, Cas. T. Hardw. 264.; Pedley v. Wellesley, 3 C. & P. 558. 1842. O'CONNOR บ. BANKS. contrary to the legal policy of marriage." [Tindal C. J. In an action against the husband, you might prove the agency of the wife aliundè, and then give her admissions or acts in evidence against the husband. The argument MARJORInow insisted upon would, in every case, preclude the wife from proving her agency, and giving effect to her husband's intentions.] The argument must certainly go to that extent. In an action against the husband, acts and admissions of the wife must be proved aliundè, not by herself. The common law principle of not allowing the wife to be a witness for or against the husband was recognised by the legislature, in passing the old bankrupt act, 21 Jac. 1. c. 19.; in sect. 5. of which it is recited that, whereas "the commissioners have power to examine the bankrupt himself and such persons as are suspected to have or detain any of the estate, goods or chattels of the bankrupts; but some doubt hath been made, whether the commissioners have power to examine the wives of the bankrupts touching the same;" and then by sect. 6. it is enacted that the bankrupt's wife may be examined by the commissioners. The authorities at nisi prius, on this subject, appear to be pretty evenly balanced. Beveridge v. Minter is certainly an authority in favour of the competency of the witness; but it appears the widow was there called to prove a promise made by her deceased husband to the debtor, not any communication to herself. Here, the whole transaction to be proved was a communication between husband and wife alone. In Aveson v. Lord Kinnaird, Lord Ellenborough C. J. clearly recognised the principle laid down in Monroe v. Twisleton; and though in the subsequent passage, which has been cited on the other side, he seems to doubt the application of that principle to the particular facts of that case, it was upon the ground that matters which are in the ordinary scope of the wife's authority, stand on a very different 1842. O'CONNOR V. MARJORI BANKS. footing from those that rest upon any extraordinary authority; which is the present case; and the inference is, that statements by the wife as to matters in the former class of cases may be admissible, but that they are not admissible as to the second class. In Aveson v. Lord Kinnaird, the admissions of the wife as to the state of her health, were considered in the nature of acts, as part of the res gestæ, like the exclamations of a party when suffering pain. [Maule J. They may be considered as statements accompanying a fact; but here the question is, whether the wife is an admissible witness to prove the fact.] In that case Lord Ellenborough referred to Thompson v. Trevannion (a), where, in an action by the husband and wife for wounding the wife, Holt C. J. allowed what the wife said immediately on the hurt being received, and before she had time to devise any thing for her own advantage, to be given in evidence as part of the res gesta; and his lordship said that the case then under consideration fell within the principle of that decision. (b) [Tindal Ċ. J. It seems clear that if the husband were alive and were the plaintiff in this suit, the wife could not be called as a witness for the purpose in question; and this is an action brought by his personal representatives.] The exclusion therefore still exists after the death of the husband. TINDAL C. J. It is impossible to gain much light from the cases decided at nisi prius relative to this subject, as the two principal ones appear to be in direct opposition to each other. We must see, therefore, which of them best accords with the general principles of law. And it appears to me that, of the two, Monroe v. Twisleton (c) is the sounder; and that the doctrine therein laid down is built upon the general rule of law, which, (a) Skin. 402. (c) Peake, Add. Ca. 219.j (b) 6 East, 193. 196. |