2726. In civil cases, a wife may now give evidence on behalf of her husband in criminal cases she can neither be a witness for or against her husband. The case of assault by him upon her forms an exception to this rule.
2727. The law does not at this day admit the ancient principle of allowing moderate correction by a husband upon the person of his wife. Although this is said to have been anciently limited to the use of "a stick not bigger than the thumb," this barbarity is now altogether exploded. He may, notwithstanding, as has been recently shown in the famous Agapemone case, keep her under restraint, to prevent her leaving him, provided this be effected without cruelty.
2728. By the Divorce and Matrimonial Causes Act, 1857, a wife deserted by her husband may apply to a magistrate, or to the petty sessions, for an order to protect her lawful earnings or property acquired by her after such desertion, from her husband and his creditors. In this case it is indispensable that such order shall, within ten days, be entered at the county court of the district within which she resides. It will be seen that the basis of an application for such an order is desertion. Consequently, where the parties have separated by common consent, such an order cannot be obtained, any previous cruelty or misconduct on the husband's part notwithstanding.
2729. When a husband allows his wife to invest money in her own name in a savings-bank, and he survives her, it is sometimes the rule of such establishments to compel him to take out administration in order to receive such money, although it is questionable whether such rule is legally justifiable. Widows and widowers pay no legacy-duty for property coming to them through their deceased partners.
2730. RECEIPTS for sums above £2 should now be given upon penny stamps. A bill of exchange may nevertheless be discharged by an indorsement stating that it has been paid, and this will not be liable to the stamp. A receipt is not, as commonly supposed, conclusive evidence as to a payment. It is only what the law terms primâ facie evidence; that is, good until contradicted or explained. Thus, if A sends wares or merchandise to B, with a receipt, as a hint that the transaction is intended to be for ready money, and B detain the receipt without paying the cash, A will be at liberty to prove the circumstances and to recover his claim. The evidence to rebut the receipt must, however, be clear and indubitable, as, after all, written evidence is of a stronger nature than oral testimony.
2731. BOOKS OF ACCOUNT.—A tradesman's books of account cannot be received as evidence in his own behalf, unless the entries therein be proved to have been brought under the notice of, and admitted to be correct by the other party, as is commonly the case with the "pass-books" employed backwards and forwards between bakers, butchers, and the like domestic traders, and their customers. The defendant may, however, compel the tradesman to produce his books to show entries adverse to his own claim.
2732. WILLS.—The last proof of affection which we can give to those left behind, is to leave their worldly affairs in such a state as to excite neither jealousy, nor anger, nor heartrendings of any kind, at least for the immediate future. This can only be done by a just, clear, and intelligible disposal of whatever there is to leave. Without being advocates for every man being his own lawyer, it is not to be denied that the most elaborately prepared wills have been the most fruitful sources of litigation, and it has even happened that learned judges left wills behind them which could not be carried out. Except in cases where the property is in land or in leases of complicated tenure, very elaborate details are unnecessary; and we counsel no man to use words in making his will of which he does not perfectly understand the meaning and import.
2733. All men over twenty-one years of age, and of sound mind, and all unmarried women of like age and sanity, may by will bequeath their property to whom they please. Infants, that is, all persons under twenty-one years of age, and married women, except where they have an estate to their "own separate use," are incapacitated, without the concurrence of the husband; the law taking the disposal of any property they die possessed of. A person born deaf and dumb cannot make a will, unless there is evidence that he could read and comprehend its contents. A person convicted of felony cannot make a will, unless subsequently pardoned; neither can persons outlawed; but the wife of a felon transported for life may make a will, and act in all respects as if she were unmarried. A suicide may bequeath real estate, but personal property is forfeited to the crown.
2734. Except in the case of soldiers on actual service, and sailors at sea, every will must be made in writing. It must be signed by the testator, or by some other person in his presence, and at his request, and the signature must be made or acknowledged in the presence of two or more witnesses, who are required to be present at the same time, who declare by signing that the will was signed by the testator, or acknowledged in their presence, and that they signed as witnesses in testator's presence.
2735. By the act of 1852 it was enacted that no will shall be valid unless signed at the foot or end thereof by the testator, or by some person in his presence, and by his direction; but a subsequent act proceeds to say that every will shall, as far only as regards the position of the signature of the testator, or of the person signing for him, be deemed valid if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of it that the testator intended to give it effect by such signature. Under this clause, a will of several sheets, all of which were duly signed, except the last one, has been refused probate; while, on the other hand, a similar document has been admitted to probate where the last sheet only, and none of the other sheets, was signed. In order to be perfectly formal, however, each separate sheet should be numbered, signed, and witnessed, and attested on the last sheet. This witnessing is an important act: the witnesses must subscribe it in the presence of the testator and of each other; and by their signature they testify to having witnessed the signature of the testator, he being in sound mind at the time. Wills made under any kind of coercion, or even importunity may become void, being contrary to the wishes of the testator. Fraud or imposition also renders a will void, and where two wills made by the same person happen to exist, neither of them dated, the maker of the wills is declared to have died intestate.