person compellable to answer any question tending to criminate himself or herself,3 [or 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.4]

1 This proviso does not exclude the application of s. 2 to penal proceedings in Ecclesiastical Courts: see note1 to s. 6 of the Criminal Evidence Act, 1898, ante, p. 51.

2 I.e., 66 compellable by process of law": see note to s. 2, supra. 3 The provision that no witness need criminate himself only declares the undoubted rule of the common law. For Judge Taylor's criticism on this declaration, see 2 Tay. Evid. 7th ed. note 2, on p. 1133; 9th ed. note 1, on p. 878.

4 The words in square brackets are now rendered ineffective by the Criminal Evidence Act, 1898, ss. 1, 4 (1), 6 (1), ante, pp. 13, 39, 50.

4. Not to apply to proceedings in consequence of adultery, or to actions for breach of promise.]-[Nothing herein contained shall apply to any action, suit, proceeding, or bill in any Court of common law, or in any Ecclesiastical Court, or in either House of Parliament, instituted in consequence of adultery, or to any action for breach of promise of marriage.1]

1 S. 4 was repealed by s. 1 of the Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68); but as to the effect of this section on the construction of ss. 2 and 3, supra, see Bishop of Norwich v. Pearse (1868), coram Sir R. Phillimore, L. R. 2 A. & E. 281, at 285; 37 L. J. Ecc. 90, cited ante, p. 51.

18. Act not to extend to Scotland.]—This Act shall not extend to Scotland.1

1 See certain enactments amending the law of evidence in Scotland, printed post, pp. 86 et seqq.

THE EVIDENCE AMENDMENT ACT, 1853.

16 & 17 VICT. c. 83.

Passed 20th August, 1853.

Came into operation 11th July, 1853: s. 6.

1. Husbands and wives of parties to be admissible witnesses.] -On the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action, or other proceeding in any Court of justice, or before any person having by law or by consent of parties authority to hear, receive, and examine evidence, the husbands and wives of the parties thereto, and of the persons in whose behalf any such suit, action, or other proceeding may be brought or instituted, or opposed or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either vivâ voce or by deposition according to the practice of the Court, on behalf of either or any of the parties to the said suit, action, or other proceeding.1

1 This was the first enactment in England which rendered the husbands and wives of the parties (unless they were themselves joint parties, as to which see note to s. 2 of the Act of 1851, ante, p. 69) competent witnesses in the High Courts. They had been rendered competent witnesses in the County Courts seven years before, in 1846 (9 & 10 Vict. c. 95, s. 83). They were now made competent and compellable to give evidence" in any Court (except as mentioned in s. 2, infra), i.e., compellable by process of law" Kops v. R., (1894) A. C. 650, at 653, P. C.; 6 R. 522; 70 L. T. 890; 58 J. P. 668.

66

:

2. Exception in criminal cases.]—Nothing herein shall render any husband competent or compellable1 to give evidence for or against his wife, or any wife competent or compellable1 to give evidence for or against her husband, in any criminal proceeding, [or in any proceeding instituted in consequence of adultery.2]

1

1 As to the meaning of "compellable," see note 1 to preceding section.

2 The words in square brackets were repealed by the Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68), s. 1.

3. Husbands and wives not compelled to disclose communications.]-No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage.1

1 See the Criminal Evidence Act, 1898, s. 1 (d), ante, p. 14; and the rule as to disclosing communications between husband and wife considered ante, pp. 25 et seqq.

MARRIED WOMEN'S PROPERTY ACT, 1882. 45 & 46 VICT. c. 75.

Passed 18th August, 1882.

Came into operation 1st January, 1883: s. 25.

12. Remedies of married woman for protection and security of separate property.1]-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 2 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, but, except as aforesaid, no husband or wife shall be entitled to sue the other for a tort. In any indictment or other proceeding under this section it shall be sufficient to allege such property to be her property; and 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: Provided always, that no criminal proceeding shall be taken by any wife against her husband by virtue of this Act while they are living together, as to or concerning any property claimed by her, nor while they are living apart, as to or concerning any

act done by the husband while they were living together, concerning property claimed by the wife, unless such property shall have been wrongfully taken by the husband when leaving or deserting, or about to leave or desert, his wife.

1 Ss. 12 and 16 of this Act are referred to in the Schedule to the Criminal Evidence Act, 1898, ante, p. 55; and the effect of their provisions is stated in the Table of Offences, ante, p. 59. Accordingly, in any criminal proceeding, when a person is charged with an offence under s. 12 or s. 16 of this Act, the wife or husband of such person may be called as a witness either for the prosecution or defence, and without the consent of the person charged.

2 Sir J. F. Stephen has pointed out that to describe a criminal proceeding as a "remedy" is to use a very peculiar phrase: Stephen's Digest of Evidence, 4th ed., note on pp. 121-122.

4

3 In consequence of the defective wording of this section-which after providing that "in any indictment or other proceeding" under it the property may be laid in the wife, enacts that "in any proceeding" a husband or wife shall be competent to give evidence (omitting the words "indictment or other")—and also in consequence of the defective wording of s. 16, after the decision in R. v. Brittleton (1884), 12 Q. B. D. 266; 53 L. J. M. C. 83; 50 L. T. 276; 15 Cox, C. C. 431—which decided that the husband was not made a competent witness against his wife upon her trial, where she was indicted jointly with her paramour for stealing his money and goods-the amending Act of 1884 (post, p. 74) was passed to remedy these defects. It is apprehended that the enactments in ss. 12 and 16 of the Act of 1882, so far as they relate to the competency of a wife or husband in criminal proceedings, and also s. 1 of the Act of 1884, are now overridden by s. 4(1) of the Act of 1898, ante, p. 39; see s. 6 (1), and note 1 thereto, ante, p. 50.

16. Act of wife liable to criminal proceedings.]—A wife doing any act with respect to any property of her husband, which, if done by the husband with respect to 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.1

1 As to the competency of the husband to give evidence in a prosecution under this section, see note 3 to s. 12, supra, and the Act of 1884, post, p. 74.

The word "property"

in this Act includes a thing in action.

26. Extent of Act.] - This Act shall not extend to Scotland.

MARRIED WOMEN'S PROPERTY ACT, 1884.

47 VICT. C. 14.

Passed 23rd June, 1884.

Came into operation on passing.

WHEREAS by section sixteen of the Married Women's Property Act, 1882,1 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 section twelve of the same Act2 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:

Be it therefore enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

145 & 46 Vict. c. 75, s. 16, ante, p. 73. 2 S. 12, ante, p. 72.

1.1 Husband or wife competent witness in criminal proceedings under 45 & 46 Vict. c. 76.]—[In any such criminal proceeding against a husband or a wife as is authorised by the Married Women's Property Act, 1882,2 the husband and wife respectively shall be competent and admissible witnesses, and, except when defendant, compellable to give evidence.]

1 The Act only consists of two sections, s. 2 giving the short title. S. 1 (the defects of which are pointed out in Stephen's Digest of Evidence, 4th ed. note, on pp. 121-122) is now in effect repealed by s. 4 (1) of the Criminal Evidence Act, 1898, ante, p. 39.

2 Ante, pp. 72, 73.