Wisconsin. Rev. Stat. 1878, § 4071, p. 992: "In all criminal actions and proceedings the party charged shall, at his own request, but not otherwise, be a competent witness; but his refusal or omission to testify shall create no presumption against him, or any other party thereto."

"Sec. 1. The defendant, in all criminal cases, in all the courts of this territory, may be sworn and examined as a witness, if he so elect, but shall not be required to testify in any case. "Sec. 2. If the defendant so elect,

Wyoming Territory.-Laws, 1878, he may make a statement to the jury without being sworn."

§ 159. Proving the Marriage-its Duration Immaterial.

§ 160. Limits and Exceptions to the Rule.

§ 161. Collateral Proceedings.

§ 162. Cases of Agency.

§ 167. Cases of Personal Injuries.

§ 168. Actions for Divorce, or to annul the Marriage.

§ 169. Actions for Abduction, or for Criminal Conversation.
§ 170. Criminal Actions.

§ 154. The Common-law Rule excluding them. The rule of the common law excluding parties from the witness-box also excluded the husband or wife of a party, as a witness for or against the party. Where the husband was a party, the wife could not testify,2 nor could she where the husband was disqualified by reason of interest in the event; so, also, the wife being a party, the husband was incompetent.4

This rule was founded partly on their identity of interest, and partly on a principle of public policy lying at the basis

1 Co. Litt. 6 b; Gilb. Ev. 119; B. N. P. 286; White v. Stafford, 38 Barb. (N. Y.) 419; Bihin v. Bihin, 17 Abb. (N. Y.) Pr. 19; A. A. C. v. T. C., 25 How. (N. Y.) Pr. 432; Moffat v. Moffat, 17 Abb. (N. Y) Pr. 4; Rogers v. Rogers, 1 Daly (N. Y.) 194; Hall v. Hall, 30 How. (N. Y.) Pr. 51.

2 Weikel v. Probasco, 7 Ind. 690; Tacket v. May, 3 Dana (Ky.) 79; Kelley v. Proctor, 41 N. H. 139; Breed v. Gove, Id. 452; Manchester v. Manchester, 24 Vt. 649; Seargent r. Seward, 31 Vt. 509.

3 Smead v. Williamson, 16 B. Mon. (Ky.) 492; Bank of Alexandria v. Mandeville, 1 Cranch, C. Ct. 575; Pryor v. Ryburn, 16 Ark. 671; Griffin v. Brown, 2 Pick. (Mass.) 304; Vandiver v. Glaspy, 7 Rich. (S. C.) 14; Larrabee r. Wood, 54 Vt. 452.

Higdon v. Higdon, 6 J. J. Marsh. (Ky.) 48; Bird v. Davis, 14 N. J. Eq. (1 McCart.) 467; Cull v. Herwig, 18 La. Ann. 315; Stewart v. Stewart, 7 Johns. (N. Y.) Ch. 229; Osborn v. Black, Spears (S. C.) Ch. 431.

of civil society, which was intended to guard the security and confidence of private life, and prevent discords in families, even at the risk of an occasional failure of justice.1 The rule was an inflexible one, and from it no evasion was permitted.2 This common-law rule also prevailed in equity, and even the death of one of the parties to the marriage, or its dissolution by divorce or judicial annulment did not operate to relax it.5 § 155. Scope and Extent of the Rule. The rule was applied to exclude the wife where, though not the nominal party, the husband was the beneficial plaintiff in the suit." If his interests were directly involved so as to be concluded by any verdict or judgment in the case, she could not testify." Direct interest of either spouse, in the result of the litigation, totally disqualified the other as a witness. So, though the husband was not a party, the wife could not testify to any matter for which he might be indicted; 9 and the wife of one of two or more co-defendants was an incompetent witness, either for or against the other defendants who joined with her husband in the defence,10 even after her husband had suffered a default to be taken against him."1

In applying these principles, it has been held that a witness whose wife had funds invested in the business of the plaintiff copartnership was incompetent as a witness,12 as was a witness whose wife was a stockholder in the bank which brought the suit; 13 and another, the trustee of his wife's property being a party, was not permitted to testify for the

1 O'Connor v. Majoribanks, 4 M. & G. 443; Stein v. Bowman, 13 Pet. (U. S.) 223; Davis v. Dinwoody, 4 T. R. 678; Bentley v. Cooke, 3 Doug. 422.

2 Tulley v. Alexander, 11 La. Ann. 628; Kemp v. Downham, 5 Harr. (Del.) 417; Waddams v. Humphrey, 22 Ill. 661; Bradford v. Williams, 2 Md. Ch. 1; Kimbrough v. Mitchell, 1 Head (Tenn.) 539. And see Peaslee v. McLoon, 16 Gray (Mass.) 488, where the English cases are reviewed. 3 Vowles v. Young, 13 Ves. 144. 4 Infra, §§ 164, 165.

5 Infra, § 166.

6 Pyle v. Maulding, 7 J. J. Marsh. (Ky.) 202; Farrell v. Ledwell, 21 Wis. 182; Joice v. Branson, 73 Mo.

7 Young v. Gilman, 46 N. H. 484; Brown v. Burrington, 36 Vt. 40; Pringle v. Pringle, 59 Pa. St. 281; Larabee v. Wood, 54 Vt. 452; Lewis v. McDougall, 17 Wis. 517.

8 Wheeler v. Wheeler, 47 Vt. 637; Bierly's Estate, 81* Pa. St. 419. 9 Den. v. Johnson, 3 Harr. (N. J.) 87.

10 1 Hale, P. C. 301; Rex v. Hood, 1 Moo. C. C. 281; Tomlinson v. Lynch, 32 Mo. 160; Craig v. Kittredge, 20 N. H. 169.

11 Sparhawk v. Buell, 9 Vt. 41.

12 Jackson v. Miller, 1 Dutch. (N. J.) 90.

18 Routh v. Agricultural Bank, 12 Sm. & M. (Miss.) 161.

trustee, although he had no interest in the subject-matter of the trust. So the husband was not permitted to testify in support of a nuncupative will claimed to have been made in favor of his wife; 2 or to prove a marriage contract in her favor.3

The wife of a special bail was an incompetent witness for the principal defendant. She could not prove the fact of her husband's bankruptcy. And neither could testify, in a proceeding to which they were parties, to enforce a mechanics' lien against their property.

But this common-law rule has been greatly relaxed in many jurisdictions, and almost totally abrogated in others. The various statutory provisions effect quite different results in the several States, some of them placing the admissibility of the testimony of husband and wife upon the same plane as that of persons in no way related one to another (except as to confidential communications between them),8 and others only partially, and more hesitatingly obliterating the safeguards built up around the marriage relation by the common law. In one respect, however, there seems to be considerable unanimity among the decisions interpreting the so-called "enabling acts," i.e., it is pretty well settled by the weight of authority, that the removal, by these statutes, of the disqualification of interest in the event, as a party or otherwise, does not remove the common-law inhibition as to the testimony of husband or wife for or against the other, the common-law rule not being founded upon the interest of the witness, but upon grounds of public policy.9 Another rule of construc

1 Burrell v. Bull, 3 Sandf. (N. Y.) Ch. 15; Hasbrouck . Vandervoort, 9 N. Y. 153.

2 Jones v. Norton, 10 Tex. 120.

3 McDuffie v. Greenway, 24 Tex.

625.

4 Leggett v. Boyd, 3 Wend. 'N. Y.) 376.

Ashcroft, 4 C. E. Gr. (N. J.) 339;
Macondray v. Wardle, 26 Barb. (N.
Y.) 612; Andrews v. Nelson, 7 Abb.
(N. Y.) Pr. 3, note.

7 See a compilation of the statutes, supra, Chap. VIII.

8 As to these, see infra, § 274.

9 Lucas v. Brooks, 18 Wall. (U. S.)

5 Ex parte James, 1 P. Wms. 610, 436; Dawley v. Ayers, 23 Cal. 108; 611.

6 Briggs v. Titus, 7 R. I. 441. For further decisions illustrating the application of the rule, see Gilleland v. Martin, 3 McLean (U. S.) 490; Jones v. Bassett, 27 Ind. 58; Beard v. Morancy, 2 La. Ann. 347; Robbins v. Abrahams, 1 Halst. (N. J.) Eq. 465; Petrick v.

Stanley v. Stanton, 36 Ind. 445; McKeen v. Frost, 46 Me. 239; Kelley v. Drew, 12 Allen (Mass.) 107; Gee v. Scott, 48 Tex. 510; Cram v. Cram, 33 Vt. 15; Re Jones, 6 Biss. (U. S.) 68 (Wisconsin). To the contrary, Lockhart v. Luker, 36 Miss. 68; but compare Dunlap v. Hearn, 37 Id. 471.

tion of these statutes is, that the witness is not rendered competent, merely because the husband or wife of the witness is a party, but that the witness himself, or herself, as the case may be, must be a party in order to get the benefit of the statute.1

§ 156. Not Competent against each other. It was well settled at common law that neither party to the marriage could testify against the other in any action, civil or criminal; 2 even though her husband was unnecessarily made a co-defendant in equity, the wife was not competent for the plaintiff.3 She could not discredit a joint title in herself and her husband coming to them through her own heirship; nor could she give testimony the tendency of