taking an oath, and allowing them to substitute a solemn affirmation in its stead. Thus, by the 3 & 4 Will. 4, c. 49, s. 1 (extending the provisions of 9 Geo. 4, c. 32, s. 1), Quakers and Moravians are permitted, whenever an oath is required, instead of taking an oath, to make an affirmation or declaration in the words following:-"I, A. B., being one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be), do solemnly, sincerely, and truly declare and affirm."

Where a prosecutor who had been a Quaker, but had seceded from the sect, and called himself an Evangelical Friend, stated that he could not affirm in the above form, and he was allowed to give evidence under a general form of affirmation, his evidence was held to have been improperly received. R. v. Doran, 2 Mood. C. C. 37. The law was, however, at once altered by the 1 & 2 Vict. c. 77, which enacts that "it shall be lawful for any person who shall have been a Quaker or a Moravian to make solemn affirmation and declaration in lieu of taking an oath, as fully as it would be lawful for any such person to do if he still remained a member of either of such religious denominations of Christians, which said affirmation or declaration shall be of the same force and effect as if he or she had taken an oath in the usual form;" and shall be in the words following :-"I, A. B., having been one of the people called Quakers (or one of the persuasion of the people called Quakers, or of the united brethren called Moravians, as the case may be), and entertaining conscientious objections to the taking of an oath, do solemnly, sincerely, and truly declare and affirm."

By stat. 3 & 4 Will. 4, c. 82, the sect of dissenters called Separatists are allowed in lieu of an oath, to make an affirmation or declaration, in the words following:-"I, A. B., do, in the presence of Almighty God, solemnly, sincerely, and truly affirm and declare that I am a member of the religious sect called Separatists, and that the taking of any oath is contrary to my religious belief, as well as essentially opposed to the tenets of that sect; and I do also in the same solemn manner affirm and declare." Since the above acts it has been provided generally by the C. L. P. Act, 1854, s. 20, that, "if any person called as a witness, or required, or desiring to make an affidavit or deposition, 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 take affidavits or depositions, 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; videlicet,-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 declaration shall be of the same force and effect as if such person had taken an oath in the usual form."

Promise and declaration in lieu of oath.] Until recently, persons who from defective education did not understand the religious obligation of an oath, and also persons who did not acknowledge an absolute divine power, or acknowledging such a power did not believe it would punish perjury, were equally incapable of giving evidence; but all objections on these grounds have been removed by the following statutes, and for the old law on this head it suffices to refer to the leading case of Omichund v. Barker, Willes, 538, and the notes thereto in 1 Smith's Lead. Cases.

The Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68), by sect. 4 enacts, that "If any person called to give evidence in any court of

Promise in lieu of Oath.-Incompetency.

151 justice, whether in a civil or criminal proceeding, shall object to take an oath, or shall be objected to as incompetent to take an oath, such person shall, if the presiding judge is satisfied that the taking of an oath would have no binding effect on his conscience, make the following promise and declaration I solemly promise and declare that the evidence given by me to the court shall be the truth, the whole truth, and nothing but the truth."" The words "court of justice" and the words "presiding judge " in this section were by the Evidence Amendment Act, 1870 (33 & 34 Vict. c. 49), s. 1, extended so as to include any person or persons having by law authority to administer an oath for the taking of evidence." As to the object of this extension, see Bradlaugh v. De Rin, W. N. 1870, p. 9, C. P., H. T.

These enactments seem to apply equally, whether the incompetency of the witness to take an oath arises from defect of education or perversion of intellect.

Incompetency.] The objection to witnesses on the ground of incompetency has been very much narrowed by recent enactments, and now all persons whose mental power of distinguishing and relating the truth can be relied on are competent, though not always compellable, witnesses.

As to the former objection to witnesses who were ignorant of or did not acknowledge the religious obligation of an oath, vide supra.

As to the objection on the ground of interest, vide post, pp. 152, et seq. The objection on the ground of defective understanding still remains, and this objection, and how and when it is to be decided, we will now consider.

Incompetency from defective understanding.] A person whose understanding is manifestly and egregiously defective will not be allowed to give evidence. This defect may arise from immaturity of intellect, or some species of insanity. Such a witness would not be competent, because his mental power of distinguishing and relating the truth could not be relied on.

As a general rule insane persons, idiots and lunatics, during their lunacy, are incompetent witnesses. But lunatics in their lucid intervals are competent. Com. Dig. Testm.-Witness (A. 1). It may be observed that here the question of competency will always turn solely on whether or no the witness will be likely to give truthful evidence, and if he is likely to do this he may be received, notwithstanding considerable defects of intellect, or even aberration of mind on certain subjects. R. v. Hill, 2 Den. C. C. 254; 20 L. J., M. C. 222. It makes no difference, whether the defect of understanding arises from imperfect education, from natural imbecility, or from failure of the mental powers. It is for the judge by examination of the lunatic on the voir dire, and of witnesses called for that purpose, to ascertain and decide on his cempetency, and if the judge allow him to give evidence the jury must decide on the credit to be attached to his testimony. S. C. Id., following R. v. Anon., cited per Parke, B., in Att.-Gen. v. Hitchcock, 1 Exch. 95.

Deaf and dumb persons were formerly presumed to have understandings so defective as to be in all cases incompetent; a presumption entirely contrary to experience, and one not likely now to be made. See Harrod v. Harrod, 1 K. & J. 9. The state of the intellect of such a witness might, of course, be reasonably inquired into before taking his testimony, as, the usual channels of information being cut off, the education of such persons is more than usually difficult. See 2 Taylor, Evid. § 1241. A deaf and dumb person may give evidence through an interpreter by signs; Ruston's case, 1 Leach,

C. C., 4th ed., 408 or by writing. Per Best, C. J., Morrison v. Lennard, 3 C. & P. 127. Where such a person has been examined on the voir dire, and pronounced to be a competent witness, and it afterwards appears during the examination in chief that the witness is incompetent, his evidence may be withdrawn from the jury. R. v. Whitehead, L. R., 1 C. C. 33.

Children not able to apprehend the obligation of an oath or promise cannot be examined; Com. Dig. supra; B. N. P. 293; but tender age alone is no objection. Brazier's Case, 1 East, P. C. 443. And a child who was wholly destitute of religious education has been allowed to be made a competent witness by being taught the nature of an oath before the trial, with a view to qualify him; R. v. Murphy, 1 Leach, 4th ed., 430, n. ; the ruling of Patteson, J., in R. v. Williams, 7 C. & P. 320, is too broadly expressed, though in that case the child was rightly rejected. The objection of the absence of religious knowledge as to the binding effect of an oath, seems now to be removed by 32 & 33 Vict. c. 68, s. 4, ante, pp. 150, 151, as under that section the child may make a promise and declaration. Where a child is tendered as a witness, the practice in criminal cases is for the judge to examine him with a view to ascertain his competency, vide ante, p. 151. Where the child cannot be admitted to give evidence, an account of the transaction which it has given to others is, of course, inadmissible. R. v. Tucker, 1 Phill. Ev., 10th ed., 10.

It is evident that in any of the above cases if a witness who has been examined by the same judge on the voir dire, and pronounced competent, should afterwards manifestly appear to him to be in such a mental condition as to be incompetent to give evidence, the evidence must be withdrawn from the jury vide R. v. Whitehead, supra. The earlier cases on the question of when counsel must take the objection of the incompetency of a witness were almost all cases where the objection was founded on interest in the subject-matter of the action, and hardly apply to the case of defect of intellect.

Incompetency on the ground of interest.] Formerly all persons having an interest in the suit were on that ground disqualified, as were also their husbands and wives; but these disqualifications have been entirely abolished, although with regard to certain matters the witness may refuse to give evidence, and in one case the uncorroborated evidence of the plaintiff' will not suffice to obtain a verdict.

The following are the statutory provisions on this subject :

By the stat. 3 & 4 Will. 4, c. 42, s. 26, it was enacted that in order to render the rejection of witnesses on the ground of interest less frequent, if any witness should be objected to as incompetent, on the ground that the verdict or judgment in the action would be admissible in evidence for or against him, he should nevertheless be examined; but in that case the verdict or judgment should not be admissible for or against him, or any one claiming under him.

The greater changes introduced by the subsequent acts have rendered it useless to retain the cases decided under this act.

By the 6 & 7 Vict. c. 85, s. 1, it is provided "that no person offered as a witness shall hereafter be excluded by reason of incapacity from crime or interest 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 affir

Incompetency on Ground of Interest.

153

mation 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" (sic; qy. inquiry ?)," 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."

This section contained a provision that it should not render the actual parties to the suit, or any person for whose immediate benefit the action was brought or defended, or the husband or wife of any such person, competent as witnesses. This exception was, as regards the parties themselves, and those for whose immediate benefit the action was brought or defended, repealed by the 14 & 15 Vict. c. 99, s. 1, and by sect. 2 the parties are rendered competent; except in any proceeding " instituted in consequence of adultery, or to any action for breach of promise of marriage," sect. 4. Sect. 3 provides that nothing therein contained "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."

It was held under sect. 4, that a co-respondent in a divorce suit was not a competent witness so long as he remained a party to the record. Robinson v. Robinson, 1 Sw. & Tr. 382; 27 L. J., P. M. & A. 91. See Blackborne v. Blackborne, post, p. 154.

Shortly after the passing of this act it was decided that sects. 1 and 2 did not have the effect of making a husband or wife competent or compellable to give evidence for or against the wife or husband in civil cases, except where the wife was a party to the record. Barbat v. Allen, 7 Exch. 609; 21 L. J., Ex. 155; Stapleton v. Croft, 18 Q. B. 367; 21 L. J., Q. B. 247.

But now, by the Evidence Amendment Act, 1853 (16 & 17 Vict. c. 83), s. 1, 66 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 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."

By sect. 2, "Nothing herein shall 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, in any criminal proceeding, or in any proceeding instituted in consequence of adultery."

By sect. 3, "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." See cases hereon, post, p. 159.

Under this act the wife may prove her own adultery in an action against her husband for goods supplied to her. Cooper v. Lloyd, 6 C. B., N. S. 519. As to proof of non-access, see post, tit. Action for recovery of possession of land by heir.-Proof of Illegitimacy.

As in a suit instituted by the wife for the dissolution of her marriage by reason of her husband's adultery coupled with wilful desertion, she was not, by reason of the exceptions in the above acts, a competent witness to prove the desertion (Pyne v. Pyne, 1 Sw. & Tr. 178; 27 L. J., P. M. & A. 54), it

was enacted by the 22 & 23 Vict. c. 61, s. 6, that on any petition presented by a wife in the Divorce Court for dissolution of marriage "by reason of her husband having been guilty of adultery coupled with cruelty, or of adultery coupled with desertion, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion."

Where the suit was by the husband against his wife on the ground of her adultery, and the wife in her answer alleged the cruelty and desertion of the petitioner, the evidence of the parties was excluded; Whittal v. Whittal, 30 L. J., P. M. & A. 43; even though the wife in her answer prayed relief under 29 & 30 Vict. c. 32, s. 2. Bland v. Bland, L. R., 1 P. & M. 513. If, however, the suit were instituted by the husband for the restitution of conjugal rights, and the wife in her answer alleged the husband's adultery, and prayed for a judicial separation, she was a competent witness. Blackborne v. Blackborne, Id. 563.

The Evidence Further Amendment Act, 1869 (32 & 33 Vict. c. 68), s. 1, repeals the 14 & 15 Vict. c. 99, s. 4, and so much of 16 & 17 Vict. c. 83, s. 2, as is contained in the words "or in any proceeding instituted in consequence of adultery;" vide ante, p. 153; and by sect. 3, "The parties to any proceeding instituted in consequence of adultery, and the husbands and wives of such parties, shall be competent to give evidence in such proceeding; provided that no witness in any proceeding, whether a party to the suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall have already given evidence in the same proceeding in disproof of his or her alleged adultery."

By sect. 2, "The parties to any action for breach of promise of marriage shall be competent to give evidence in such action; provided always, that no plaintiff in any action for breach of promise of marriage shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in support of such promise."

It seems that "any proceeding in consequence of adultery" in sect. 3, includes only proceedings for divorce or judicial separation. Nottingham, Guardians of, v. Tomkinson, 4 C. P. D. 343.

It will be observed that sect. 3 enables a person when called as a witness in such a cause, whether a party thereto or not, to refrain altogether from giving any evidence that may tend to show that he or she has been guilty of adultery; but the section does not exclude the evidence of the witness if he be willing to give it. Hebblethwaite v. Hebblethwaite, L. R., 2 P. & M. 29. The exemption extends to adultery of the witness, committed at any time, and is not confined to the adultery in respect of which the proceedings were instituted. Babbage v. Babbage, Id. 222. If, however, the party deny the truth of some of the charges of adultery contained in the pleadings, and is asked no questions as to others, he is bound to answer questions in crossexamination respecting all the charges in the pleadings. Brown v. Brown, L. R., 3 P. & M. 198.

Under sect. 2, it has been held that evidence that the plaintiff said to the defendant that he had promised to marry her, and that the defendant did not deny it, was sufficient material evidence. Bessela v. Stern, 2 C. P. D. 265, C. A.

Incompetency from infamy.] This head of disqualification has been reduced within very narrow limits if not entirely abolished by 6 & 7 Vict. c. 85, s. 1, ante, p. 152. Before the passing of that act conviction and judgment for felony, or any species of crimen falsi, rendered the party incompetent as a