husband is a competent and compellable witness. (See Reg. v. The Mayor of London (1886), 16 Q. B. D. 772, per A. L. SMITH, J., at p. 775; 55 L. J. M. C. 118; 54 L. T. 761; 34 W. R. 544; 50 J. P. 614; 16 Cox C. C. 81; Stephen's Digest of the Law of Evidence, Art. 108; Wills on Evidence, 84; Reeve v. Wood (1866), 5 B. & S. 364; 34 L. J. M. C. 15). The wife or husband are also supposed to be competent and compellable witnesses in cases of treason, but this is doubtful. Sect. 4. NOTE. of Act to 5. In Scotland, in a case where a list of witnesses is Application required, the husband or wife of a person charged shall Scotland. not be called as a witness for the defence, unless notice be given in the terms prescribed by section thirty-six of the Criminal Procedure (Scotland) Act, 1887 (a). (a) That section is as follows: 50 & 51 Vict. c. 35. defence. 36. It shall not be competent for the person accused to Written state any special defence unless a plea of special defence notice of shall be tendered and recorded at the first diet, or unless special cause be shown to the satisfaction of the court for a special defence not having been lodged till a later day, which must in any case not be less than two clear days before the second diet, and it shall not be competent for the person accused to examine any witnesses or to put in evidence any productions not included in the lists lodged by the prosecutor, unless written notice of the names and designations of such witnesses and of such productions shall have been given to the Procurator-Fiscal of the district of the second diet when the case is to be tried in the Sheriff Court, or to the Crown Agent where the case is to be tried in the High Court of Justiciary, at least three clear days before the day on which the jury is sworn to try the case against him, or unless the accused person shall show before a jury is sworn to try the case against him that he was unable to give the full notice of three days in regard to any witnesses he . may desire to examine or productions he may desire to make, and where this is shown the court shall give such remedy to the prosecutor by adjournment or postponement of the trial or otherwise as shall seem just, and a copy of every written notice hereby required shall be lodged by the person accused with the sheriff clerk of the district in which the second diet is to be held, or in any case the second diet of which is to be held in the High Court of Justiciary in Edinburgh with the Clerk Sect. 5. NOTE. Provision as to previous Acts. of Justiciary, at or before the second diet, for the use of the court. 6.-(1.) This Act shall apply to all criminal proceedings, notwithstanding any enactment in force at the commencement of this Act, except that nothing 40 & 41 Vict. in this Act shall affect the Evidence Act, 1877 (a). c. 14. 29 & 30 Vict. c. 109. 44 & 45 Vict. c. 58. Defendant and wife or husband of defendant may be (2.) But this Act shall not apply to proceedings in courts martial unless so applied (a) as to courts martial under the Naval Discipline Act, by general orders made in pursuance of section sixty-five of that Act; and (b) as to courts martial under the Army Act by rules made in pursuance of section seventy of that Act. (a) The enactments in force at the commencement of this Act will be found in Appendix C., post, p. 56. This Act is applied to all these cases by this section and s. 4, ante, p. 14. So far as these Acts are rendered obsolete they will, no doubt, be repealed by one of the Statute Law Revision Acts. This Act, as pointed out (s. 1, note (a), ante, p. 3), applies to all criminal proceedings, with the exception of cases coming under the Evidence Act, 1877 (40 & 41 Vict. c. 14). That Act is as follows: 1. On the trial of any indictment or other proceeding for the non-repair of any public highway or bridge, or for a nuisance to any public highway, river, or bridge, and of any other indictment or proceeding instituted for the purpose of trying or enforcing a civil right only, every certain trials. defendant to such indictment or proceeding, and the wife or husband of any such defendant, shall be admissible witnesses and compellable to give evidence. witness in The reason why the defendant, and the wife or husband of the defendant, are by that Act made admissible and compellable to give evidence, either for the prosecution or the defence, is because the proceedings are in substance of a civil nature, although the form of them is criminal. An illustration of this will be found in the case of Reg. v. Stephens (1866), L. R. 1 Q. B. 702; 35 L. J. Q. B. 251; 66 14 L. T.593; 14 W. R. 859; where the defendant was indicted for a nuisance to a river, and MELLOR, J., at p. 708, says: It is quite true that this in point of form is a proceeding of a criminal nature, but in substance I think it is in the nature of a civil proceeding." Proceedings at law on the Revenue side of the Exchequer are not criminal proceedings, and are governed by the Evidence Act, 1851 and 1853 (14 & 15 Vict. c. 99, and 16 & 17 Vict. c. 83), which apply to all civil proceedings. (See Crown Suits Acts, 1865 (28 & 29 Vict. c. 104), s. 34, and the Customs Consolidation Act, 1876 (39 & 40 Vict. c. 36).) Before these Acts, in the Att.-Gen. v. Radloff (1854), 10 Ex. 84; 23 L. J. Ex. 240, POLLOCK, C.B., and PARKE, B., thought that revenue proceedings were criminal; PLATT, B., and MARTIN, B., that they were civil. Bastardy proceedings are within the Evidence Acts, 1851 and 1853, and are not criminal proceedings within this Act (Reg. v. Lightfoot (1856), 6 E. & B. 822; 25 L. J. M. C. 115; 4 W. R. 655; Reg. v. Berry (1859), 28 L. J. M. C. 86; Bell, 46; 32 L. T. (o.s.) 323; 7 W. R. 229). A suit for a divorce is a purely civil, and in no sense a criminal proceeding (Mordaunt v. Moncrieff (1874), L. R. 2 H. L (Sc.) 374: 43 L. J. P. & M. 49; 30 L. T. 649; 22 W. R. 12; Redfern v. Redfern, [1891] P. 139; 60 L. J. P. 9: 61 L. T. 68; 55 J. P. 37). 7.-(1.) This Act shall not extend to Ireland. Sect. 6. NOTE. Extent, commence short title. (2.) This Act shall come into operation on the ment, and expiration of two months from the passing thereof. (3.) This Act may be cited as the Criminal Evidence Act, 1898. App. A. APPENDIX A. CRIMINAL EVIDENCE ACT, 1898. An Act to amend the Law of Evidence. [12th August 1898.] BE it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: in criminal 1. Every person charged with an offence, and the wife or Competency husband, as the case may be, of the person so charged, of witnesses shall be a competent witness for the defence at every stage cases of the proceedings, whether the person so charged is charged solely or jointly with any other person. Provided as follows: (a.) A person so charged shall not be called as a witness in pursuance of this Act except upon his own application: (b.) The failure of any person charged with an offence, or of the wife or husband, as the case may be, of the person so charged to give evidence shall not be made the subject of any comment by the prosecution : (c.) The wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged: (d.) Nothing in this Act shall make a husband compellable to disclose any communication made to him by his |