the modern history of legal education for the Bar in England begins and my story ends.

It has been far too long, and I must not detain you by attempting to make any practical application of the old story to the conditions of to-day. I venture to add just a word: The one great inheritance which we-and I speak of a heritage which is common to all of us-have received from the system which I have tried to describe, is the spirit of comradeship and good-fellowship, which I believe always has prevailed, as it still prevails, amongst men at the Bar: a spirit which largely assists in keeping alive that tradition of courtesy, of generosity in rivalry and, what is. of far higher importance, of straightforward and honourable dealing, which makes our profession one of whichspeaking as Chairman of the General Council of the Ear in England and as the guest of this great Association of the Bar of America-I may say that we are all of us justly proud.

JOSEPH WALTON.

A

III. PRIVILEGED

COMMUNICATIONS:

HUSBAND AND WIFE.

QUESTION raised in the course of bankruptcy proceedings which some months ago were exciting interest, and were fully reported at the time in the daily papers, draws attention to a point of law which must affect a large number of persons, but which for one reason or another has not for many years given rise to any important decision. A husband, summoned to attend a private examination held under Sec. 27 of the Bankruptcy Act, was questioned as to the movements of his wife, who, though not the bankrupt, was required like himself for examination under the section, but could

not be found. When before the Registrar of the County Court which was seized of the matter, the husband refused to answer these questions, and upon an adjournment to the judge, it was contended by counsel on his behalf that the Court had no power to compel him to disclose facts, which were within his knowledge from having been communicated to him by his wife; and presumably (though the legal arguments are not reported) the Law of Evidence Amendment Act, 1853*, and the cases which preceded it were referred to. The County Court Judge, however, held that upon the authority of a certain case (probably Ex-parte Campbell. In re Cathcart (1876), 5 Ch. App. 703), the husband was bound to make full disclosure, and upon going into the box he was asked not only where and when he had last seen his wife, but where she was going to, where he supposed she then was, and to what address he would direct letters, matters of which his answers showed that he had no knowledge beyond what had been communicated to him by herself at a recent interview.

With all respect to the decision of this particular Court, it is to be regretted that the husband's acquiescence in its ruling prevented the objection raised on his behalf from being argued elsewhere. Ex-parte Campbell may be an answer to the objection that the evidence of persons summoned under Sec. 27 is limited to questions concerning the debtor, his dealings, or property, but otherwise it has to do solely with the privilege subsisting between solicitor and client. In that case the solicitor of the bankrupt's father, summoned under a' corresponding section of the Bankruptcy Act of 1861, refused to state where his client was then residing, on the ground that the place of residence of his client came to his knowledge in his professional capacity, and only in consequence of his * 16 and 17 Vict. c. 83.

employment as solicitor. The Court of Appeal held that this was an insufficient objection, and that unless the witness had been able to say that he only knew his client's residence because it had been communicated to him confidentially as a solicitor, for the purpose of being advised, and had not been communicated to the rest of the world, the privilege did not arise.

But a decision on the relations of solicitor and client has not necessarily any bearing upon those of husband and wife, which have always been regarded by the law as of a peculiar nature. The position of communications passing between husband and wife was discussed at great length in the case of O'Connor v. Majoribanks (1842) 4 M. and G. 435. This was an action of trover brought by the personal representatives of a deceased husband, in which it was held that the disability existing in those days of the husbands or wives of persons interested in a suit to give evidence continued during the lives of the survivors. But, in the course of his judgment, Tindal, C. J., referring to the rule that communications between husband and wife were at common law privileged, goes on to say :-"We are asked to confine the rule to cases where the communications are of a confidential nature. Such a limitation of the rule would very often be extremely difficult on application, and would introduce a separate issue in each case as to whether or not the communications were to be considered of a confidential character." And Maule, J., in reiterating that all communications between husband and wife were absolutely privileged, irrespective of their being confidential or otherwise, instances the Statute of Frauds, which by enacting that certain agreements must be in writing and signed by the parties to be charged, intended to prevent issues of fraud being raised in particular cases.

These judgments were delivered at a time when a feeling, which gathered strength as years went on, against the

evidence of persons being rejected on the ground of interest in the subject matter of suits, conviction for crime, and so forth, was beginning to be manifest.* But Lord Denman's Act, passed in 1843 † (the following year), for the purpose of remedying this state of things, contained an express provision that the Act should not render admissible as witnesses parties to the record, or their husbandsor wives. This provision was partly repealed by Lord Brougham's Evidence Act of 1851, which rendered parties to a suit for the first time competent witnesses, but not, so the Court of Queens Bench decided in the case of Stapleton v. Crofts (1852) 18 Q.B., 367, their husbands or wives. The difficulties suggested by that decision, were, however, set at rest, or were intended to be set at rest, by the Evidence Amendment Act of 1853, §. sec. 1, of which provides that "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 husbandsand 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, etc." Sec. 2 provides that "nothing herein shall render any husband competent or compellable to give evidence for or against his wife, or

* The preamble to the Act for the Further Amendment of the Law of Evidence, 1869 (32 and 33 Vict. c. 67) runs: "Whereas the discovery of truth in Courts of Justice has been signally promoted by the removal of restrictions on the admissibility of witnesses, etc.

+6 and 7 Vict. c. 85.

14 and 15 Vict. c. 99.

§ 16 and 17 Vict. c. 83, supra.

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." But by sec. 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."

And so the statute law remains in the present day, except that by sec. 2 of the Law of Evidence Act, 1869, above referred to, the exception contained in sec. 2 of the Act of 1853, in the case of proceedings instituted in consequence of adultery is abolished. It is true that in a dissentient judgment in Stapleton v. Crofts, Erle J. had pointed cut that if the ground of the exclusion of the evidence of a husband or wife of a litigant was the preservation of the peace of families, as asserted from Coke upon Littelton downwards, the application of the rule led to strange inconsistencies; and he drew attention to the fact that both in the county courts and in bankruptcy the Legislature had found it necessary to admit the evidence of wives. But there is nothing in any Bankruptcy Act before or after 1853 which is inconsistent with the plain words of the first three sections of the Law of Evidence Amendment Act 1853 By sec. 27 of the Bankruptcy Act of 1883 (which deals with the discovery of a debtor's property), sub-s. 1, the debtor or his wife (inter alias) may be summoned to produce any documents in his or her custody or power relating to the debtor, his dealings, or property; and (sub-s. 3) the Court may examine on oath any person so brought before it concerning the debtor, his dealings, or property. But it has never been held with regard to this or corresponding sections in previous Acts that the Court is entitled to extract from the wife of a debtor information however obtained, and still less when the husband or wife, as the