or declaration shall be adjudged and taken, and is hereby enacted and declared to be of the same force and effect, to all intents and purposes, in all courts of justice and other places whatsoever, where by law an oath is or may be required, as if such Separatists had taken an oath in the usual form.' As to persons refusing from conscientious motives to be sworn, or being incompetent to take an oath, being allowed to affirm or declare, see 24 & 25 Vict. c. 66, s. 1, (t) and 32 & 33 Vict. c. 68, s. 4, ante, p. 27. ter oaths. By the 14 & 15 Vict. c. 99, s. 16, 'every court, judge, justice, Court, &c., officer, commissioner, arbitrator, or other person, now or hereafter may adminis having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively.' By the 13 & 14 Vict. c. 21, s. 4, in all Acts of Parliament 'the Oath includes words "oath," "swear," and "affidavit," shall include affirmation, declaration, affirming and declaring, in the case of persons by law allowed to affirm instead of swearing.' Where an oath is administered before a court, judge, or magistrate, by a crier, clerk, or other person, the oath is in point of law administered by the court, judge, or magistrate for the person who actually administers the oath is the agent of the court, judge, or magistrate, and when he administers the oath, the court, judge, or magistrate administers it. (u) A witness who is subpoenaed cannot object to be sworn on the ground that any questions which may be put to him would tend to criminate him; but he must be sworn, and must either answer the questions, or object to answer them, if he insists on any privilege in that respect. (v) affirmation. Oath admin istered in the presence of the court. A witness cannot refuse because any questions may to be sworn, criminate him. 3. Disqualification, &c. Previous to the 53 Geo. 3, c. 127, there Excommuniwas great doubt whether persons excommunicated by the ecclesi- cated persons. astical courts were competent witnesses; (w) but by that statute excommunication is not to be pronounced except in certain cases; (t) By 30 & 31 Vict. c. 35, s. 8, and whereas relief has been given by the statute 24 & 25 Vict. c. 66, to 'persons refusing, from alleged conscientious motives, to be sworn as witnesses in criminal proceedings, and it is expedient to extend that relief to persons required to serve as jurors: Therefore, if any person summoned or required to serve as a juror in any civil or criminal proceeding, shall refuse or be unwilling, from alleged conscientious motives, to be sworn, it shall be lawful for the court or judge or other presiding officer or person qualified to administer an oath to a juror, upon being satisfied of the sincerity of such objection, to permit such person, instead of being sworn, to make his or her solemn affirmation or declaration in the words following: 'I, A. B., do solemnly, sincerely, and truly affirm and declare, that the taking of any oath is, according to my religious belief, unlawful; and I do also solemnly, sincerely, and truly affirm and declare,' &c. Which solemn affirmation and de claration shall be of the same force and (u) Reg. v. Tew, Dears. C. C. 429, 6 & 7 Vict. and by sec. 3, in those cases, parties excommunicated shall incur no civil disabilities. The 6 & 7 Vict. c. 85, s. 1, reciting that the inquiry after truth in courts of justice is often obstructed by incapacities created by the present law, and it is desirable that full information as to the facts in issue, both in criminal and in civil cases, should be laid before the persons who are appointed to decide upon them, and that such persons should exercise their judgment on the credit of the witnesses adduced and on the truth of their testimony,' enacts that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime (x) or interest (y) from giving evidence, either in person or by deposition, according to the practice of the Court, on the trial of any issue joined, or of any matter or question, or on any inquiry arising in any suit, action or proceeding, civil or criminal, in any court or before any judge, jury, sheriff, coroner, magistrate, officer, or person having by law or by consent of parties authority to hear, receive, and examine evidence; but that every person so offered may and shall be admitted to give evidence on oath or solemn affirmation in those cases wherein affirmation is by law receivable, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, matter, question, or injury, (2) or of the suit, action, or proceeding in which he is offered as a witness, and notwithstanding that such person offered as a witness may have been previously convicted of any crime or offence.' (a) In one case since this Act Mr. Justice Lush said he considered a person under sentence of death was not a competent witness, but, if it became necessary, he would reserve the point. (6) Where upon an indictment for felony two prisoners, who had pleaded guilty to the same indictment, were called as witnesses on the part of the Crown, and they had been previously convicted and sentenced for another and different offence; it was urged that they were incompetent, as they were incapable, as attainted felons, of being witnesses at common law, and as they were ‘individually named upon the record' their competency was not (x) Before this Act if a person had been convicted of certain offences, he was incompetent to give evidence. But in order to exclude a person from being a witness on this account, it was necessary to produce the record, not only of his conviction, but of the judgment thereon. Gilb. Ev. 128. Com. Dig. Testm. A. 5. Outlawry in a personal action did not make a person incompetent as a witness. Co. Litt. 6 b.; Com. Dig. Testm. A. 5. (y) Before this Act persons having an interest in the event of a suit, were excluded from being witnesses in favour of that party to which their interest inclined them. As to the nature of the interest that excluded, see 1 Phill. Ev. 1 Stark. Ev. Smith v. Prager, 7 T. R. 60. But no relationship, except that of husband and wife, created a disqualifying interest. (z) Sic-plainly a mistake for 'inquiry.' (a) The clause then proceeded, 'Pro vided that this Act shall not render competent any party to any suit, action, or proceeding individually named in the record, or any lessor of the plaintiff or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively.' But the whole of this proviso, except so much as relates to husbands and wives, was repealed by the 14 & 15 Vict. c. 99, s. 1, and the remainder by the 16 & 17 Vict. c. 83, s. 4. The section also contains a proviso that it shall not repeal any provision in the Wills Act, 7 Will. 4 & 1 Vict. c. 26, and a proviso as to the examination of defendants in courts of equity. (b) R. v. Webb, 11 Cox, C. C. 133. restored by Lord Denman's Act (6 & 7 Vict. c. 85); but Rolfe, B., held that they were admissible. They could not be either gainers or losers by the event of the trial then proceeding, and they could not be considered as parties to the proceeding then before the Court. (c) admissible The 14 & 15 Vict. c. 99, s. 2, enacts 'that on the trial of any 14 & 15 Vict. issue joined, or of any matter or question, or on any inquiry. 99, s. 2. arising in any suit, action, or other proceeding in any court of Parties to be justice, or before any person having by law, or by consent of parties, witnesses. authority to hear, receive, and examine evidence, the parties thereto, and the persons in whose behalf any such suit, action, or other proceeding may be brought or defended, shall, except as hereinafter excepted, be competent and compellable to give evidence, either viva 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.' (d) person charged Sec. 3. 'But nothing herein contained shall render any person Nothing herein who in any criminal proceeding is charged with the commission to render a of any indictable offence, or any offence punishable on summary with any inconviction, competent or compellable to give evidence for or against dictable himself or herself, or shall render any person compellable to answer any question tending to criminate himself or herself, 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. (e) In any criminal proceeding defendants jointly indicted for or charged with the commission of any offence, and on their trial, cannot be called as witnesses for or against themselves or each other, notwithstanding anything contained in the 14 & 15 Vict. c. 99, ss. 2 and 3. Four prisoners were jointly indicted for night poaching, and during their trial, and at the close of the case for the prosecution, it was proposed to call one of the prisoners to prove an alibi for another of them. The proposed witness had been examined before the justices on the committal of the other three prisoners, and had given evidence of an alibi, and had been bound over, by recognisance, by the justices to give evidence on the trial under 30 & 31 Vict. c. 35, s. 3, but had been afterwards taken into custody, and committed, and was indicted jointly with the others. No nolle prosequi was entered for him, nor did he plead guilty, and no application had been made for a separate trial. The evidence was rejected. Held, that the evidence was properly rejected, and that the conviction was right. (ƒ) If two prisoners be jointly indicted, and one alone be given in charge to the (c) Reg. v. Drury, 3 C. & K. 190. It will be observed that it was not even contended in this case that the prisoners were incompetent, excepting by reason of the proviso, and that proviso is now repealed. (d) The 17 & 18 Vict. c. 122, s. 15, enacts that this section shall not be deemed to apply to any prosecution, suit, or other proceeding in respect of any offence, or for the recovery of any penalty or forfeiture, under any law now in force, or hereafter to be made relating to the customs or inland revenue.' See 39 & 40 Vict. c. 36, in the Appendix. (e) Sec. 4 provides that nothing in this Act shall apply to proceedings in conse quence of adultery, or breach of promise of marriage; and sec. 5, that the Act shall not repeal any provision in the Wills Act, 7 Will. 4 & 1 Vict. c. 26. (f) R. v. Payne, 41 L. J. M. C. 65. Before this case there was some doubt about this. See 1 Hale, 305; 2 Stark. Ev. 11. See Percy Cresby's case, Noy, 154, cited 2 Hale, 234. R. v. Lyons, 9 C. & P. 555. R. v. Deeley, 11 Cox, C. C. 607. offence, &c., competent or compellable to give evidence for or against himself, &c. A prisoner who is acquitted is competent. A prisoner who has pleaded guilty but is not sentenced, is a competent witness for an other prisoner. Or against another pri soner. Husbands and wives of parties to be admissible witnesses. Except in criminal cases and in jury, the other is an admissible witness (though neither acquitted nor convicted, and though a nolle prosequi is not entered) upon the trial of the prisoner with whom the jury are charged. (g) Where one of several prisoners jointly indicted is acquitted, he is a competent witness against the others; (h) and it is equally clear that he is a competent witness for the others. Where, before the 14 & 15 Vict. c. 99, George and Ford were jointly indicted for housebreaking, and George pleaded guilty, but was not sentenced; Coltman, J., held that he might be called as a witness for Ford. (i) So where Hinks and Waywood were jointly indicted for larceny, and Waywood pleaded guilty, but judgment was respited in his case, and the trial proceeded against Hinks, and Waywood was admitted as a witness for the prosecution; it was held, upon a case reserved upon the question whether he was a competent witness under the 6 & 7 Vict. c. 85, s. 1, that he was admissible at common law. (j) Where Jackson and Cracknell were jointly indicted for forgery, and Jackson, who was also charged with having been previously convicted of felony, pleaded guilty to the charge of forgery, but denied his previous conviction, and the jury found that he had been previously convicted; Erle, J., was of opinion that the proper course was to pass sentence upon him, and so put an end to the whole matter as regarded him, before he allowed him to give evidence for the other prisoner; and this course was adopted. (k) Wherever it has been intended to call a prisoner as a witness against those jointly indicted with him, the practice has been to obtain the leave of the court to offer no evidence against the particular prisoner, and to take an acquittal of him before examining him as a witness. (1) The 16 & 17 Vict. c. 83, s. 1, enacts that '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 vivá 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.' Sec. 2. Nothing herein shall render any husband competent or compellable to give evidence for or against his wife, or any wife (g) Winsor v. The Queen, 35 L. J. M. C. 161; see this case ante, p. 603. See R. v. Gallagher, 13 Cox, C. C. 61. (h) R. v. O'Donnell, 7 Cox, C. C. 337, five judges on a case reserved in Ireland. (i) Reg. v. George, C. & M. 111. Reg. v. King, 1 Cox, C. C. 232, Platt, B., after consulting Erle, J. Reg. v. Arundel, 4 Cox, C. C. 260, Patteson, J. (j) Reg. v. Hinks, Den. C. C. 84. 2 C. & K. 462. S. C. as Reg. v. Williams, competent or compellable to give evidence for or against her hus- cases of adal band, in any criminal proceeding, or in any proceeding instituted in tery. consequence of adultery.' (m) any com Husbands and wives not compelled to Sec. 3. No husband shall be compellable to disclose munication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to disclose comher by her husband during marriage.' (n) With the exceptions hereafter pointed out, husband and wife have always been incompetent to give any evidence for or against each other in criminal cases; (0) therefore the wife of a prisoner cannot give evidence for him. munications. other. And they cannot be witnesses against each other, by reason of Against each the dissensions and distrusts that it would occasion, inconsistent with the happiness of married life and the peace of families; (p) and therefore, on an indictment for bigamy, the first and true wife cannot be admitted to give evidence against her husband; (q) but, after proof of the first marriage, the second wife may be a witness. (r) And where an offence can only be committed by several joining in it, as conspiracy or riot, the husband or wife of one of those who are jointly indicted has always been an incompetent witness for or against any of the others; for the acquittal or conviction of such other would directly tend to the acquittal or conviction of the wife or husband, as the case might be. Thus on a prosecution against several persons for a conspiracy, the wife of one of the defendants was held not to be a competent witness for the others, a joint offence being charged, and an acquittal of all the other defendants being a ground of discharge for her husband. (s) And wherever the acquittal of the principal would enure to the accessory's discharge, it may well be doubted whether the wife or husband of the accessory would have been a competent witness for the principal. On an indictment for conspiracy against Hamp and others, Mrs. Broome was examined for the prosecution, and it appeared that her husband had been bound by recognizances to appear and take his trial for cheating at play at a previous assize, but that he did not appear, and had not returned home since, and the wife being asked whether she had not seen her husband in Birmingham a few days before, said, 'I decline to answer the question, because my, husband did not appear to his recognizance;' Lord Campbell, C. J., 'I think on that the question ought not to be proposed.' (t) The wife of one of several prisoners on their trial at the same Wife of one time on a joint indictment cannot be called as a witness for or prisoner inagainst any of the prisoners, notwithstanding that the indictment competent against contains more counts than one respectively charging distinct another pri (m) So much of this section as is contained in the words or in any proceeding instituted in consequence of adultery' are repealed by 32 & 33 Vict. c. 68, s. 1. (n) Sec. 4 repeals so much of sec. 1 of the 6 & 7 Vict. c. 85, as provides that the Act shall not render competent the husbands and wives of the parties therein enumerated. (0) Gilb. Ev. 119. 2 Hawk. P. C. c. |