
    THOMAS CASTELLO, plaintiff in error, v. SOPHRONIA CASTELLO, defendant in error.
    (Atlanta,
    January Term, 1871.)
    DIVORCE — EVIDENCE—PRIVILEGED COMMUNICATION —An action for divorce was brought by the husband against his wife, alleging as a ground for ¡divorce, the willful and continued desertion of the wife for the term of three years:
    
      Held, That the husband was a competent witness, on the trial thereof, under the provisions of the 3978th section of the Code; but he could not testify as to any facts derived by him from the confidential relation of husband and wife.
    Divorce. Party as Witness. Before Judge^ Harrell. Stewart Superior Court. October Term, 1870.
    In March, 1870, Thomas Castello sued his wife, Sophronia, for a divorce, averring that, three years before, she abused him in the most insulting manner, when he was violently ill and helpless, refused to render him any assistance, abandoned his home, and had remained away ever since. On the trial, after proving the marriage, plaintiff was offered as a witness to prove said averments. The Court held him to be incompetent and there was a verdict for defendant. The rejection of plaintiff as a witness is assigned as error.
    Moses & Downing; C. R. Russell, for plaintiff in error.
    No appearance for defendant.
    
      
      EVIDENCE—PRIVILEGED COMMUNICATION'S.—There is no error in allowing a wife to be 'sworn as a witness, and especially none under the caution, that she need not answer any question tending to criminate her husband. Williams v. State, 69 Ga. 31. See also, Castello v. Castello, 41 Ga. 613; Davis v. Weaver, 46 Ga. 626; Porter v. Allen, 54 Ga. 625; Barclay v. Waring, 58 Ga. 87; Goodrum v. State, 60 Ga. 509; Johnson v. State, 61 Ga. 305; Stanford v. Murphy, 63 Ga. 410.
    
   *WARNER, J.

The husband was a competent witness, on the trial of the case, under the provisions of the 3798th section of the Code, but could not testify as to any facts derived by him from the confidential relation of husband and wife.

Eet the judgment of the Court below be reversed.  