Civil Cases,

have been very gradual. The rule which formerly excluded the evidence of persons having any legal interest in the subject matter in dispute, although maintained from a praiseworthy motive, was found impracticable. Amongst the Romans the rule was more strict, excluding near relatives, and a son was unable to give evidence for his father, or vice versa.

It was not until the year 1843 that Lord Denman's Act was passed removing the disability on the ground of crime or interest, except in actions of ejectment. This qualification was abolished by Lord Brougham's Act of 1851. By this Act parties to the action were made admissible witnesses, and indeed became compellable to give evidence if required to do so. By the Amendment Act of 1853 (Lord Brougham's) husbands and wives became admissible as witnesses for or against each other, except in cases of adultery and criminal proceedings; but on the ground of public policy communications between such persons made during marriage were protected, and are no doubt likely to continue so. I observe that by the Indian Evidence Act, 1872, the husband or wife of a prisoner can give evidence for or against the accused.

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Considering the implicit confidence which a client is frequently called upon to repose in his legal adviser, it is a well-established rule that the latter is not at liberty to divulge any information which may be communicated to him in his professional capacity. No such privilege, how-ever, exists between a medical practitioner and his patient, nor between a clergyman and a member of his congregation. Such a privilege was very strongly insisted on in the case of Regina v. Hay, 2 F. & F. 2, in which the prisoner was charged with stealing a watch. One of the witnesses called was a priest, and it appeared that the prisoner was a member of his church. The priest was asked from whom he got the watch, but he declined to answer the question on the alleged ground that he was not at liberty to disclose any information which he acquired from a member of his church, and added that if he did answer the question his suspension for life would follow. Mr. Justice Hill, however, adjudged him guilty of contempt, and he was removed in custody. This case certainly shows how rigidly the rule against privilege may be enforced. The policy of the law so far as relates to admissions made to medical men and clergymen may be open to question. It is not difficult to conceive circumstances under which, if evidence of such admissions were insisted on, great injustice would be the result In the States of California, Minnesota, Missouri, Nevada, and Kansas communications made by a patient to his physician whilst attending him professionally, and confessions made by any person to his or her clergyman or priest professionally—that is, in accordance with the rules of the denomination to which the parties belong—are privileged. Indeed, in some of the States, the privilege extends to statements made to a public officer in his official capacity.

I may here refer to a reform which might very properly be introduced in England as well as here. Under the Indian Evidence Act, to which I have referred, no confession made to a police officer can be proved against a person accused of any offence, and no confession made by a prisoner whilst in custody is to be given evidence of unless made in the presence of a magistrate.

A law prevails in several of the States which is well page 17 worthy of consideration. In Tennessee, where the opposite parties are executors or administrators, evidence cannot be given against them of any statement made by the testator to the opposite party unless called upon to do so by them or by the Court. The principle of this law is in force in nearly all the States, although the language of the various statutes is somewhat different. The rule is general in some of the States, and extends to guardians, trustees, and others occupying a fiduciary position. In New Hampshire, if the executor gives evidence, or if the Court is satisfied that injustice would be done, the opposite party may testify. It is not necessary to say more on this subject than merely to observe that under the present law evidence given of conversations with a deceased person, or a person unable to give evidence, such as a lunatic, may place an executor or guardian at a serious disadvantage. There is much to be said in support of the opinion of Lord Brougham, who advocated an extension of the Statute of Frauds, and the adoption of the principle of the French law, by which all contracts for sums above a certain amount must be in writing. In his opinion, considering the progress of education, there was little excuse for contracts not being in writing.

In some parts of America executors or administrators can require a creditor to verify his debt by a declaration before the latter is entitled to commence an action. This is certainly a reasonable provision, as they have frequently to take the mere word of a creditor for the existence of a debt, with the alternative of being sued.

By the law in nearly all the American States the incompetency of a witness arising from his unbelief is removed, and such unbelief affects his credibility only. In Michigan a witness cannot be questioned touching his religious belief, and in Georgia it has been decided that a witnesss cannot be asked whether he believes in Christ as the Saviour.

The tendency of the English judges for many years has been to relax the rule which relates to the incompetency of witnesses, and to allow any special circumstances touching their belief or character to affect their credibility only. This principle, so far as religious belief is concerned, has been carried into practical effect by recent legislation. page 18 Under the Indian Evidence Act (s. 118) all persons are competent witnesses unless the Court is satisfied that they are prevented understanding questions by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

In some of the States, such as Mississippi, persons who have been convicted of perjury or subornation of perjury are absolutely incompetent as witnesses, and in Tennessee persons who have been guilty of felony, and who have not been pardoned, are not admissible as witnesses. Pro-visions of this kind, I think, are open to objection, and the fact that a person has been guilty of an offence should merely affect his credibility.

Whilst on the question of evidence it may not be out of place to refer to the rule which prevails with us in regard to proving deeds. In order to prove a deed requiring attestation it is necessary to call the attesting witness, if within the jurisdiction of the Court. This law, when strictly enforced, is frequently attended with great inconvenience as well as much expense, and the calling of the witness to prove his signature is nearly always an idle ceremony. The rule which prevails in Scotland might be beneficially introduced here. There a deed appearing ex facie to be complete, and to have been duly executed, is admitted without proof, it being what is technically called probative. Indeed by section 38 of the Conveyancing (Scotland) Act, 1874, a deed is still probative, although the testing clause—now of less importance than formerly—does not furnish the particulars as to execution previously required, and where a deed is improbative a special mode of proof may be resorted to under section 39 of the Act. If such a law be considered objectionable it might be modified by admitting only deeds attested by certain persons, such as justices of the peace, or solicitors. However, I see no objection to the rule in force in Scotland.

In Queensland, under the Evidence and Discovery Act of 1867, a witness to a deed may prove its execution by a declaration on oath, but the party intending so to prove the deed must give notice to the other side before the trial of his intention to do so.