1764.
Octor. 18th .

Audley Case Vizt. "that where the King is party and an Injury is done
to the wife herself she is a good Witness" be extended to other Cases of
Violence than that of Lord Audley

As to the Argument from the Remedy which the wife has by the
Surety of the Peace it seems a Solecism to say that for Threats and
Menances for the bare Apprehension of Violence she shall have it on her
own Oath, but of Violence actually committed even to the Amount of
Mayhem her Testimony is not admissable; and there seems to be no
greater reason for Admitting the wife to prove the Forfeiture of the
Recognizance than to prove violence in the First Instance.

But whether or not this is now the law is the Question for in the
Case of the King agst. Azire,. a Husband was Indicted for an Assault
upon his wife and the Chief Justice Lord Raymond Allowed her to be a
good Witness and Cited Lord Audleys Case Sha 633

At the Summer Assizes held at Coventy Thomas Dwyer< no role >
was Tried before Sir Sidney Stafford Smythe< no role > on an Indictment for
Violently assaulting and Wounding Mariana< no role > his wife up on her left Ann
with a Hatchet, and convicted on the Sole Evidence of the wife and

In July Sessions 1763 at the Old Bailey William Lee< no role > was tried
before £d. C B. Parker upon an Indictment on the Coventry Act for
laying in Wait and Maiming his wife and she was Admitted to prove
the Fact which was that the Husband at going to bed had Secreted a
Razor with which he wounded the wife in the Throat, but this not being
such a lying in wait nor the Wound such a Mayhem as the Act
requires he was acquitted but Ordered to remain for the Assault of
which he was afterwards convicted at Hicks Hall on the Evidence of
the wife

It is said that the Resolution in Lord Audleys Case has been
Censured on Account of some Irregularities in the Proceedings
the neither Sir Matt. Hall nor Serjt. Hawkins say any thing in
Derrogation of its Authority but whether the Resolution in Browns
Case in which Hale and the whole Court delivered their Opinions
seriatim this latter one of Lord Raymonds in Azires Case and
the Subsequent Cases at the Assizes and the Old Bailey above Stated
be not a Recognition of the Principle on which Lord Audleys
Case was resolved and a Determination of the Law in this Respect
is what the Justices for Middx would gladly know

Upon the whole they are greatly at a loss how to determine in
Cases of this Nature, which happen frequently they require an
Opinion to direct them in their Duty and desire to be informed
whether or no the Evidence of a wife there being no Witness but her
self to the fact be admissable to prove the Assault upon her own Person
by her Husband

Answer

This is vexata Questio upon which there have been and I believe