to the restoration of his stolen goods by the conviction, R. v. Muscot, 10 Mod. 193, or entitle himself to costs by the conviction, where the indictment has been removed by certiorari. Id. Upon an indictment for perjury, the party injured by the perjury is a competent witness to prove it; for he cannot afterwards avail himself of the conviction, in any civil suit either in law or in equity. 4 East, 572. and see Id. 572 n. 1 Taunt. 520. Forgery, indeed, is the only criminal case in which the party injured is not a competent witness to prove the offence; the person whose name is forged, is deemed incompetent as a witness to prove the forgery. Gilb. Ev. 124. R. v. Rhodes, 2 Str. 728. R. v. Caffy, 2 East, P. C. 995. R. v. Taylor, 1 Leach, 225. R. v. Boston, 4 East, 582. per Ellenborough, C.J. This rule as to forgery, seems to have been originally adopted, upon the erroneous supposition that the witness would be discharging himself of his liability by the conviction, and that the record of conviction might be given in evidence for him in an action upon the forged instrument; and we accordingly find that in cases where this reason does not apply, the person whose name was forged has been admitted as a competent witness. Thus, upon an indictment for forging a bank note, the cashier, whose name was forged, was holden to be a competent witness to prove the forgery. R. v. Newland, 1 Leach, 350. Upon an indictment for forging the indorsement of the payee of a bill of exchange, the payee, who was to have paid the produce in discharge of a debt due from the drawer, but who in fact never received the bill, was holden to be a competent witness to prove the forgery. R. v. Sponsonby, 1 Leach, 374. and see Id. 57. Upon an indictment for forging a receipt, the person whose name was forged, having first recovered the money from the defendant, was holden to be a competent witness to prove the forgery. R. v. Wells, Bul. N. P. 289.

Fourthly, an accomplice is a competent witness, although his expectation of pardon depend upon the defendant's conviction. Gilb. Ev. 136. 1 Hale, 303. 2 Hawk. c. 46. s. 94. See Say. 289. Willes. 423. So, an accessary is a competent witness against his principal; and the principal against the accessary, in all cases where the latter may be indicted before the attainder of the former: as, for instance, upon an indictment for receiving stolen goods, the person who stole the goods is a competent witness. R. v. Patram, 2 East, 782. R. v. Haslam, 1 Leach, 467. But the fact of the witness's being an accomplice, accessary, or principal, detracts very materially from his credit; Gilb. Ev. 136; and it is always considered necessary, in order to induce the jury to credit his testimony, to give other evidence confirmatory of, at least, some of the leading circumstances of his story, from which the jury may be able to presume that he has told the truth as to the rest. See Coup.

From being parties to the suit.] In civil actions, neither party shall be allowed to give evidence for, nor obliged to give evidence against, himself. In criminal cases, the rule is the same; but it is not applicable to the prosecutor, for the indictment, &c. is at the suit, not of the prosecutor, but of the King; and the prosecutor is accordingly deemed a competent witness, in all cases excepting forgery. See ante, p. 95, 96. The defendant, so far from being obliged to give evidence against himself, is not bound even to answer the questions put to him upon his examination before a magistrate. And the defendant's wife cannot be compelled, nor indeed will she be permitted, to give evidence against her husband, excepting in some instances, where she is also the prosecutrix. Vide post. It sometimes happens, however, that the prosecutor, in order to exclude the evidence of a material witness for the defendant, prefers his indictment against both jointly; if, therefore, in such a case, no evidence whatever be given to affect the person thus unjustly made a defendant, the judge (in his discretion, 1 Holt, 275,) may direct the jury to acquit him in the first instance, so as to give an opportunity to the other defendant to avail himself of his testimony. Gilb. Ev. 131, 132. Bul. N. P. 285. 1 East, 313 n.

From relation to the parties.] It is a general rule of evidence that husband and wife cannot be witnesses either for or against each other; Co. Lit. 6 b. Gilb. Ev. 133, 134. 4 T. R. 678. 2 T. R. 263. Hardw. 264. Bac. Abr. Evidence, A. 1. See 1 Str. 504; and it is doubtful if this rule do not extend to the case of a woman cohabiting with a man, and passing as his wife. See Campbell, v. Twemlow, 1 Price, 81. Where several were indicted for a conspiracy, Lord Ellenborough refused to allow the wife of one of them to give evidence in favour of some of the others; for if all the others were acquitted, the husband must consequently have been acquitted also. R. v. Locker et al. 5 Esp. 107. and see 2 Str. 1094. So, in conspiracy, the wife of one of the defendants should not be allowed to give evidence against any of the others, as to any act done by him in furtherance of the common design; particularly after evidence given, connecting the husband with that defendant in the general conspiracy.

To the rule above laid down, however, there are two exeeptions: namely, First, in cases of high treason, husband and wife may be witnesses against each other. R. v. Griggs, T. Raym. 1. but see 1 Br. & Gold. 47, Co. Lit. 66. 1 Hale, 301. cont. and see 1 Hale, 48. dub. Secondly, when a husband is indicted for a personal injury to the wife, the latter is a competent witness to support the prosecution; Bul. N. P. 286. Hale, 301; and the same, when the wife is indicted for personal injury to the husband. Where a husband was indicted for being present

aiding and assisting another in committing a rape upon his own wife, the wife was holden to be a competent witness to prove the offence; R. v. Lord Audley, 1 St. Tr. 393; and the same, where a husband was indicted for the battery of his wife. R. v. Azyre, 1 Str. 635. So, upon an indictment against a man for the murder of his wife, the dying declarations of the wife were allowed to be given in evidence against him. R. v. Woodcock, 2 Leach, 563. R. v. John. 1 East, P. C. 357. Thirdly, upon an indictment for bigamy, the second wife is a competent witness against the defendant, the first marriage being previously proved; for the second marriage is void. 1 Hale, 393. So, upon an indictment for forcible abduction and marriage, the woman is a competent witness against the defendant; for a contract obtained by force, has no obligation These however are not in law. Bul. N. P. 286. 1 Hale, 302. exceptions to the rule above mentioned; for here the woman is not, in law, the wife of the defendant.

A father or mother may be a witness for or against the child; 1 Wils.. 333. 2 T. R. 263. 6 T. R. 330. Hardw. 277. 1 Salk. 289. 2 Str. 925. 940. Cowp. 591; a child, for or against the father or mother; Gilb. Ev. 135; a servant, for or against the master or mistress; Id; a master or mistress, for or against the servant.

Counsel, solicitors, and attornies, are privileged from giving (indeed they will not be permitted to give) evidence of any matters confided to them by their client, in their professional capacity, Gilb. Ev. 136. 4 T. R. 753. and see 2 Camp. 9. 2 Stark. 274. 2 Brod. & Bing. 4, either in the cause respecting which the communication was made, or in any other, 4 T. R. 753, and whether the client be a party to the cause or not. 2 Camp. 578. So, an attorney is not bound, on a subpœna duces tecum, to produce any deeds or papers belonging to his client in his custody, if it appear that the production will operate to the And what is here said as prejudice of his client. 1 Stark. 95.

to attornies, is equally applicable to their agents, 2 Stark. 239, and to persons employed by them, as interpreters between them and their clients. Peake, 78. This privilege, however, is to be considered as excluding the disclosure merely of such facts as have been communicated confidentially by the client to the attorney, &c. in his professional capacity; and therefore does not extend to facts known to the attorney previously to his retainer; Gilb. Ev. 136. 1 Vent. 197. Skin. 404; nor to the contents of a notice served upon him by the attorney on the other side, requiring him to produce at the trial a certain paper belonging to his client in his hands, 7 East, 357, or the like; and where an attorney was present at the time his client swore to an answer in chancery, it was holden that he could be compelled to give evidence of that fact, on an indictment against his client for perjury. Bul. N. P. 284. but see 2 Str.

1122, cont. This privilege also is strictly confined to counsel, solicitors, attornies and their agents, &c.; it does not extend to the steward or other agent of the party, 2 Atk. 524. 4 T. R. 753, or to a conveyancer, 2 Atk. 525, or to a physician or other medical person, 11 St. Tr. 243. 4 T. R. 753, however confidential the communications to such persons may be.

Where also the disclosure of a particular fact, not bearing directly upon the matter in question, may be of detriment to the public service, the court will not compel a witness to disclose it. As, for instance, in Hardy's case, (24 How. St. Tr. 753.) a witness who was employed to obtain information of the proceedings at a meeting of one of the corresponding societies, was not allowed to disclose the name of his employer.

SECT. 3.

Credit of Witnesses.

The credibility of a witness is compounded of his knowledge of the facts he testifies,-his disinterestedness,—his integrity, his veracity,—and his being bound to speak the truth, by such an oath as he deems obligatory. Proportioned to these, is the degree of credit his testimony deserves from the court and jury.

From their knowledge.] Although a witness be perfectly disinterested, although he be a man of integrity and veracity, and have a just sense of the moral obligation of the oath he has taken, still the degree of credit to be given to his testimony depends upon his real knowledge of the facts he testifies. A man may be deceived in a fact, from deriving his knowledge of it through a false medium; from his attention being occupied more by the circumstances accompanying it, than by the fact itself, at the time of its occurrence; or from a thousand other circumstances, which, if candidly stated, might be satisfactorily answered and accounted for by the other party, so as to convince the witness himself that he laboured under a mistake. Where there is a doubt, therefore, whether the evidence given by a witness be not founded in some misconception, it is the duty of the counsel who cross-examined him, to question him as to the sources of his knowledge; his reasons for believing the fact to be as he has stated; his reasons for recollecting it; the circumstances attending its occurrence; whether it was light or dark, and whether he was near or distant, at the time it occurred; and the like: so that the jury

may be able to judge of the degree of confidence they should place in the witness's testimony. If a witness refuse to answer such questions, or do not answer them satisfactorily, it should have the effect of detracting considerably from his credit in the estimation of the jury.

From their disinterestedness.] A witness, to be perfectly crcdible, must not be, in the slightest degree, biassed or partial to one party or the other. Therefore, if it appear that the witness is prejudiced against the party, against whom he appears, or has before expressed sentiments indicative of such prejudice, or if it appear that a prosecution is pending against him for the same or a similar offence, and he come to disprove some of the facts charged in the indictment against the defendant,-all these are circumstances which detract proportionably from his credit. In cases where the defendant is not obliged to appear personally at the trial, as in the case of informations and of indictments in the court of King's Bench,-the witness being liable as one of the defendant's bail, not merely goes to his credit, but seems to be an objection even to his competency; at least such is the case in civil actions. See Arch. Pl. & Ev. 391. Where the prosecutor is to derive an advantage from a conviction of the defendant, this we have seen (ante, p. 95,96.) is no objection in general to his competency; it goes to his credit merely. A father is a competent witness for his son, and a son for his father; but the interest arising from the relationship detracts proportionably from the credit of the witness. See 2 Hale, 276. Gilb. Ev. 149. 155.

The defendant may be cross examined as to his being interested; see 1 Esp. 409; and indeed it may be doubted if you would be allowed to prove his interest in any other way, until you had first cross examined him upon the subject. If he acknowledge that he was once interested, he will be allowed afterwards to prove that his interest has determined, without producing the instrument by which his interest was so determined; 1 Esp. 160. 164. See 2 Stark. 433. 2 Camp. 14; but if his interest have been proved by other witnesses, the instrument which has determined it must be produced. And in all cases where a release is necessary, to give competency to a witness, the release must be produced and proved, or secondary evidence given of it, as in ordinary cases. See 1 Camp. 37.

From their integrity.] A conviction for treason, felony, piracy, præmunire, perjury, forgery, conspiracy, barretry, and the like, we have seen (ante, p. 94.), renders a witness incompetent; but the commission alone of such offence, without conviction, see 11 East, 309, and the commission of all other offences which import falsity or fraud, whether followed up