hiring, which, though void as a deed, was admitted in order to show the terms of the contract. (1)* Fifthly, commissioners of bankrupt could not at common law examine the bankrupt's wife.(2) But now by st. 21 J. 1. c. 19. s. 5. & 6., which recites, that doubts had arisen upon the point, it is provided, "that, after the party is declared a bankrupt, the commissioners may examine his wife on oath, for the finding out of the estate, goods, and chattels of such bankrupt, concealed, kept, or disposed of by such wife, in her own person, or by her act or means, or by any other person." Sixthly, upon an appeal against an order of bastardy, in the case of a married woman, Lord Hardwicke and the other Judges held, that she was a competent witness to prove her criminal connection with the appellant, though her husband was interested both in the question and in the event of the cause, because such a fact so secret in its nature can scarce ever be proved by other evidence.(3) But this is only from the necessity of the thing she is not competent to prove any other fact, as want of access(4), which other witnesses may be reasonably supposed capable of proving. To admit such evidence would be giving the wife a power to bastardize (1) White v Cuyler, 6 T. R. 176. (2) Anon. I Brownlow, 47. (3) R. v Reading, Rep. temp. Hard. 92 R. v Bedell, Andr. 8. R. v Luffe, 8 East, 203. Gilb. Ev. 139. [72] * 70 In an anonymous case, reported in 1 Strange 527. where an action was brought for nursing the defendant's child, Pratt C. J. admitted evidence on the part of the plaintiff, that the defendant's wife had represented her agreement with him to be for so much per week; because such matters, he said, are usually intrusted to women. Bull. N. P. 287. S. C. But it has been since determined, that the declarations of the wife are not admissible against the husband, in an action brought by him in right of his wife. Alban and Wife v Pritchett, 6 T. R. 680. [73] *71 her child, and to discharge the husband from the burden of its maintenance.(a) On an appeal against the removal of a woman, as the widow of A. B. deceased, prima facie evidence of the marriage having been produced on the part of the respondents, the Court of King's Bench determined, that the woman was a competent witness, on the part of the appellants, to disprove the marriage,(1) In the case of Campbell v. Twenlow (2), which lately came before the Court of Exchequer on a motion tọ set aside an award, one of the grounds of the application was, that the arbitrator had rejected the evidence of a woman called on the part of the plaintiff, who had cohabited with him for several years and passed as his wife, but who would have stated, that she had never been married to him. The point was much argued at the bar. The Court, considering it a doubtful question, (as the report states,) declined giving any opinion, as it was unnecessary for the determination of the case; and they refused the motion, on the ground, that the opinion of the arbitrator was final and conclusive (3), all matters both of law and fact having been left to his decision. Mr. Baron Richards cited a case before Lord Kenyon on the Chester circuit in the year 1782, where on a trial for *forgery, the prisoner called a woman as his witness, whom he had himself in court represented to be his wife, (1) R. v Bramley, 6 T. R. 330. R. v (3) 6 Ves. 232. 9 Ves. 364. 14 Ves. 271. in note. (a) These principles were fully recognized in a late case in Pennsylvania, The defendant was indicted for fornication with one Sarah Myers, a married woman, and begetting a bastard child on her body, and it was held that Sarah Myers was a competent witness, from the necessity of the case, upon common law principles, to prove the criminal connection, but nothing further; and therefore that she could not be questioned as to the non access of her husband. Commonwealth v Shepherd, 6 Binney 283: but afterwards, on hearing an objection taken to her competency, denied that she was married to him, and Lord Kenyon refused to admit her evidence. Seventhly, it has been ruled at nisi prius, that a wife may be witness, in an action between third persons, not immediately affecting the interest of the husband, though her evidence may possibly expose him to a legal demand; as, in an action between third persons for goods sold and delivered, to prove the goods sold not on the credit of the defendant, but on her husband's credit.(1)(a) This evidence, it may be said, was in some measure against the husband, though he was not a party in the suit. On the other hand, to reject her evidence in such a case would be a hardship on the defendant, who may have no other means of defending himself against an unjust demand: and though upon her testimony the defendant may have a verdict, and an action may afterwards in consequence be brought against the husband, she would not then be admitted as witness, nor could her evidence in the first suit be produced against him.(b) (1) Williams v Johnson, by King, C. J. 1Str. 504, Bull. N. P. 287, S. C. (a) Vide 39. n. (b) B. lent certain goods to the wife of C. of which C. being in the possession, conveyed them by bill of sale to R. but they continued in the possession of C. until B. having understood that R. intended to take them away, took them into his own possession, whereupon R. brought an action of trover against B. in which C's wife was offered as a witness on the part of B. the defendant; and it was held that she was competent to prove the loan from B. and notice to R. of B's property; on the ground that the interest of her husband was equally balanced between the parties; and that in civil actions in which the husband is no party, the wife may be called on as a witness, even to facts, which, if proved in another action to which her husband is a party, and by evidence other than her own, may go to charge him. Baring v Reeder, 1 Hen. and Mun. 154. Another exception to the general rule by which husband and wife are excluded from testifying for or against each other, was made in the following case :-Articles of agreement were entered into between the husband, wife, and C. the trus tee of the wife, by which the husband permitted the wife to live separate from bim; and the trustee, C. covenanted, on the part of the wife, to pay the husband three thousand eight hundred dollars, on his delivering to the wife for her sepa [74] * 72 SECT. IV. Of the Effect of Admissions by a Party to the Suit, or by his Agent, against the Party's Interest. AS the parties to a suit are excluded from being witnesses on account of their interest, statements or representations made by them against their interest must be evidence against them, and in many cases they will be the strongest evidence. Upon this principle the free admissions of one of the parties to a suit on the matter in issue, and the voluntary confession of a prisoner under a criminal charge, are always received in evidence against the party. (a) *First, with respect to admissions; The admissions of a party to the suit against his interest are evidence in favour of the other side, whether rate use, the coachee and horses which he had lately purchased: the husband brought an action of covenant against C. to recover the three thousand eight hundred dollars, and the declarations of the wife were offered in evidence by the plaintiff, to show the delivery of the coachee and horses, and were admited by the judge on a bill of exceptions being brought, the court decided that the evidence was admissible. Both parties, the court say, by the covenant, concurred in her capacity to receive these articles, and she became, for that purpose their mutual agent. Her declaration, or confession, that the act was done, became legal evidence of that fact, as a necessary consequence of her authority, under the articles to receive the coachee & horses; for no principle would seem to be more clear than that the person to whom performance of an act is agreed to be made, is competent to acknowledge such performance. If she was competent to receive, she was competent to give a receipt for them, and if her receipt would have been good evidence of the delivery, her parol admission must be equally so. And again; if her act or admission be good in one case, to charge the husband in favor of a third person, because she was his agent, the rule ought equally to apply in favor of the husband, when he and a third person by the contract between them, have mutually referred to an act in which she was to be a party. Fenner v Lewis, 10 Johns. Rep. 38. (a) It has been held that an admission in an answer in Chancery was evidence, against the defendant, in an action brought by another plaintiff. Post 286, n, So, an admission in a case made for argument, is evidence against the party making Mt. Vandervoort and another v Smith, 2 Caines' Rep. 155. made by the real party on record, or by a nominal par ty who sues as a trustee for the benefit of another(1) (a), or whether by the party who is really interested in the suit, though not named on the record. (2) Thus, in an action of debt upon a bond conditioned to pay money to L. D., for whose benefit the action was brought, the defendant proved, that L. D. had said in a conversation about this bond, that the defendant owed nothing, upon which the jury found for the defendant: on a motion for a new trial, it was argued, that the declarations of L. D. who was no party to the action, ought not to affect the plaintiff, and affidavits were offered to explain L. D.'s evidence; but the Court said, that the affidavits were inadmissible, and that it was to be considered, as if L. D. was the plaintiff, the action being for L. D.'s benefit. (3) And in an appeal against the removal of a pauper, declarations by a rated inhabitant of either parish, concerning the facts in issue, are admissible in evidence, not only against himself, but also against the other rated inhabitants of his parish(4): for they are the parties really interested, although the appeal may be entered in the names of the parish officers; and they are not compellable as parties to give evidence of the fact.(5) It may be inferred from a former part of this section, that in a civil suit against several persons, who are proved to have a joint interest in the decision, a declaration. made by one of these persons concerning a material fact within his knowledge, is evidence against him, and (1) Bauerman v Radenius, 7 T. R. 664. Craib v D'Aeth, ib. 670. n. (2) R. v Hardwick, 11 East, 578. 39. Dowden v Fowle, 4 Campb 33. (3) Hanson v Parker, 1 Wils. 257. Smith v Lyon, 3 Campb. 465. (4) R. v Hardwick, 11 East, 578. [75] (4) Vide Johnson v Keer, 1 Ser. & Rarles 25, 14 |