#### *Trueman Osborn and Eliza his wife,*vs. *Alexander Black and Eliza his wife, Thaddeus Street and Daniel Boinest, administrators of Timothy Street, George W. Logan, assignee, and Ed. P. Starr, agent of the creditors of Alex. Black.*

1, Defendant, A. B. mortgaged to the wife of complainant, certain real estate, on the 20th May, 1829; the mortgage being duly recorded the 8th June following. He had mortgaged the same premises to one T. S., as executor of W. D, S, deceased, on the 28th September, 1825, hut this mortgage was not recorded until the 11th January, 1834. W. D. S. appointed his widow, T. S. deceased, to whom the older mortgage had been given, with defendant A. B. and another, who did not qualify, his executrix and executors. A. B. intermarried with the executrix, afterwards giving the mortgage to T. S. Mrs. B. had an interest under the will, independent of the control of her husband for life only; the bulk of the property after her decease, being directed to go to others, not parties to the suit. A. B. became a certified bankrupt after the filing of this bill, and before, had assigned all his property for the benefit ofhjs creditors, having also renounced his execu-torship before the ordinary,

*4322. On a bill filed by complainants to foreclose their mortgage against the administrators of T. S. deceased, together with the assignee and agent of A. B’s. creditors, A. B. was offered by his co-defendants to prove notice to them of the elder mortgage, but the court held that as executor of testator and a party to the suit, he was incompetent, whether a bankrupt or not.

3. Also, that his renunciation before, and discharge by the ordinary, was not sufficient, as the ordinary had no authority to discharge from liabilities incurred, or to deprive him of rights which he had acquired, in the discharge of his duties as executor.

4. Also, that he was incompetent, because the interest of the wife was directly involved in the suit, and he was called on to testify in behalf of her interest.

5. The fact that the interest of the wife in the subject matter of the suit, was independent of her husband, and not under his control, did not remove his incompetency. *Tide Davis*vs. Dinwoody, 4 T. R. 678. 21 Eng. Com. Law Rep. 416.

Johnson, Ch. The bill in this case seeks a foreclosure of mortgage of Alexander Black, one of the defendants, to Eliza Osborn, one of the complainants, dated 20th May, 1829, and duly recorded on the 8th June next following, and states that the said Alexander Black had executed another mortgage of the same premises, to Timothy Street, deceased, as Executor of Wm. D. Shaw, deceased, bearing date the 28th September, 1825, prior to the date of the mortgage to complainants, but not recorded until 11th Jan. 1834, long after their mortgage was on record, and averring that they, the complainants, were ignorant of the existence of the mortgage to Timothy Street, at the time they took their mortgage as a security, and for a long time after, until just before filing their bill. Claim to be first paid out of the mortgaged premises. The bill also states, that Wm. D. Shaw, for the benefit of whose estate the said mortgage to Timothy Street, his executor, was given, by his will appointed Eliza, his wife, his executrix, and Timothy Street, deceased, Alexander Black, and Thomas Blackwood, also deceased, his executors, all of whom had qualified as such, except the last named, and that sometime after the death of the said Wm. D. Shaw, the said Alexander Black, and the widow of the said Wm. D. Shaw, intermarried with each other, and are the parties *433really interested in the said mortgage, under the will of the said Wm. D. Shaw, deceased, or under some settlement made between them, upon or after their marriage. The bill then states the assignment of the said Alexander Black, to George W. Logan, one of the defendants, for the benefit of his creditors, and that Ed. P. Starr was appointed agent, under the Act of Assembly.

Alexander Black, by his answer, admits his liability upon his bond and mortgage. The administrators of Timothy Street say, by their answer, that the existence of their mortgage may have been communicated to complainants at the date of their mortgage, as it was well known to Alexander Black; which fact, they insist, will entitle them to be first paid from the proceeds of the mortgaged premises; and they aver that the said mortgage to their intestate, was given for a full and valuable consideration, and that the sum thereby secured to be paid, is still unpaid; that by the will of the said Wm. D. Shaw, he did, as stated in the bill, constitute Timothy Street, Alexander Black and Thomas Blackwood, his executors, and his wife, Eliza, his executrix, and admit that Thomas Black-wood did not qualify on said will.

That Alexander Black, and Eliza, the widow of Wm. D. Shaw, intermarried, and by the terms of the said will of the said Wm. D. Shaw, the said Eliza is only entitled to a life interest in his estate; and the said Alexander Black, being indebted to the estate of the said Wm. D. Shaw, duly executed his said bond therefor, and the same is now due to these defendants, for the uses of the will of the said Wm. D. Shaw.

The answer of George W. Logan, and Ed. P. Starr, is formal.

At the trial the administrators of Timothy Street offered their co-defendant, Alexander Black, as a witness, to prove notice of their mortgage to complainants, averring that he had no interest, having assigned all his property for the benefit of his creditors, before the filing of this bill, and having his certificate of discharge as bankrupt, granted after the filing of the bill; and also, having renounced his executorship under the will of Shaw. As to his wife’s interest, the will of Shaw was produced to shew *434that she had an interest independent of the control of her husband, for her life only, and after her death, the bulk of the property went to others, not parties to this suit.

Major Black’s testimony taken subject to the objection of complainants, as to his competency, is as follows

Maj. Black, sworn, says Mrs. Osborn, complainant, offered to loan witness money, if he would secure it by mortgage. Witness said he had no other property, except this lot, which would suit her. He told her at the time, that he had before mortgaged it to the estate of Shaw, to secure between four or five thousand dollars, but thought is was sufficient to secure both. She accepted the terms, and he took the money and gave her the mortgage. She spoke of it as a familiar thing, when she asked him for-the interest, as a fact well remembered.

As this is the only evidence of notice to the complain-; ants, and I do not think Major Black a competent witness in the case, I must give priority to the mortgage first on record. It is, therefore, ordered and decreed, that the Master’s report be confirmed, and that the mortgaged premises be sold by him, upon the following terms. One fourth cash, the balance, in one, two, three and four years, to be secured by bond and mortgage of the premises, and an assignment of the policy of insurance upon the buildings, to be effected by the purchaser, and to be continued during the term of credit, at his expense. And that out of the proceeds of sale, the Master do pay in the first place to the complainants, the amount reported by him to be due on the fourth instant, to w7it: — nineteen hundred and forty-three dollars forty cents, with interest after accruing, and their costs; then the amount due on the bond to Timothy Street, éxecutor of Wm. D. Shaw, which is. secured by mortgage of the same property, with costs, and that the surplus, if any, be retained, subject to the further order of this court.

The decree of the court in this case, respecting the tes-, timony of Alexander Black, a co-defendant, offered as a witness on behalf of the representatives of Wm. D. Shaw, will be appealed from, on the grounds — ■

1. TI}at Mr. Black, in his answer, having admitted *435himself to be primarily liable for the debt of complainant, he is a good witness for his co-defendants.

2. Because, being a certified bankrupt, he has no interest in the event of the suit.

3. Because the executors of Shaw, and the residuary legatees under his will, are entitled to the testimony of the witness, and any separate and temporary interest of the wife of the witness cannot deprive them of that right.

4. Because the interest of the wife of the witness being sole and sepatate, she is, as to the witness* a third person, and the interest of the estate of Shaw, being represented by the co-defendants, Street & Boinest) they are entitled to the testimony of Mr. Black;

Hunt, for appellants;

McCready, contra.

Curia, per Johnson, Ch.

The court concur with the circuit court, in the rejection of Alexander Black’s evidence in the cause. As the executor of Shaw, and a party to the suit, he was an incompetent witness, and that, whether he is a bankrupt or not. This rule is too familiar to require illustration. As to his having renounced the executorship, that is out of the question. He states, in his answer, that he renounced before, and was discharged by, the Ordinary. Neither the Ordinary nor any other tribunal, has any such power. The courts of equity do exercise the power of taking the assets out of the hands of an executor, where they are in danger of being wasted, but it has no authority to discharge him from liabilities incurred, or to deprive him of rights which he has acquired, in the discharge of the duties of executor.

I think also, that he was incompetent, because his wife’s interest is directly involved in the suit* and he is called on to testify in her behalf, or rather, in behalf of her interest. The interest of Mrs. Black, in the subject matter of the suit, is independent of her husband, and not under his control, and this, it is said, removes all interest which he might otherwise have had in the matter.

In contemplation of law, the husband and wife are one and the same, and whilst they live together in harmony* *436their interests are, in truth and in fact, identical. The wife could not sit at the table, and refuse to share with her husband the loaf which she had purchased with her separate funds. I say, could not, but suppose she did, (and the world of mankind is made of a strange compound) and selfishly appropriate the whole of her separate property to her undivided use — it would relieve him, to that extent, from the necessity of providing for her wants. By the policy of the law, husband and wife are excluded from being witnesses for or against each other, in civil, as well as in criminal, cases. In that relation, each is entitled to the unlimited confidence of the other. Withholding it., is well calculated to mar their happiness, and confidence must be destroyed, if an inquisitorial power was established to extort from either the bosom secrets of the other. Intimate as the union between husband and wife is supposed to be in law, and is often in fact, the will of one must prevail over the other, and I can readily suppose that cases might occur, in which it would be felt, even in the solemn act of giving testimony. Would a weak, timid, and submissive wife, feel no restraint when she was called to give evidence for or against a brutal and tyrannical husband *1*Is it not to be feared that her moral sense, however well sustained under other circumstances, would waiver under this influence'? It was wise and humane, therefore, to remove the temptation altogether, by excluding them from being witnesses for or against each other. It is on this principle, that parties are excluded from giving evidence in their own causes, and if husband and wife are unit, and their interests identical, they ought not to be allowed to testify for or against each other.

Lord Coke lays it down as a rule well established in his day, that the husband or wife of a party, is incompetent to give evidence for or against each other, as it might be the means of implacable discord and dissention between them, and of great inconvenience; Co. Lit. 60. And in the application of the rule, it has been held, that in an action by the trustee of a marriage settlement to recover property settled to the separate use of the wife, the husband was an incompetent witness to prove the identity of the property, (and that is exactly this case) And Lord *437Kenyon remarks, that independently of the question of interest, husbands and wives are not admitted as witnesses for or against each other. From their being so nearly connected, they are supposed to have such a bias on their minds, they are not to be permitted to give evidence. And Buller, J., says, it is now considered as a settled principle of law, that husbands and wives cannot, *in any*case, be admitted as witnesses for or against each other ; *Davis*vs. Dunwoody, 4 Term Rep. 678. So in *Daker*vs. Halsey, 21 Eng. Com. Law Rep. 416, where the widow was called to testify, as to a conversation between her deceased husband and herself, Best, Ch., held that she was incompetent, remarking, that the happiness of the married state requires that the confidence between man and wife should be kept forever inviolate. And so in *Munroe*vs. Twisleton, reported in the appendix to Peake’s Evidence, 84, Lord AÍvanly held, that a wife divorced from her husband by Act of Parliament, was incompetent to testify as to what he had said during their coverture. So in *Terry*vs. *Bel-*cher, 1 Bail. Rep. 27, where the husband and wife lived separately, and were under mutual bonds not to interfere with any property which either had or might acquire, the husband was held an incompetent witness, in a suit brought by the administrator, to recover the property of an estate, of which the wife was entitled to a distributive share, although she was no party to the suit, and that on the ground of interest.

The case of *Fitch*vs. Hill, 11 Mass. Rep. 286, and *Richardson*vs. Learned, 10 Pickering, 268, have been relied on as establishing a different rule. In the first, a promissory note had been given to the wife *dum sola,*and after her marriage, her husband had endorsed it to the plaintiff, and guaranteed the payment. In an action by the endorsee against the maker, the wife was admitted to testify that the maker had paid her the money before her marriage, and that the note was not delivered, on account of its being then lost or mislaid. A verdict was found for the defendant, and upon a motion for a new trial, the court go on to say, that the evidence was admissible according to the rules of law, but that as the husband had been released, the question had ceased to be of importance, *438and supposing* it inadmissible, it was questionable whether a new trial would be granted. In the latter case, the husband was admitted as a witness in a suit brought by the trustee of the wife, in relation to a separate property in which she had an interest, without the control of her husband, over which she had the uncontroled power of appointment, and the ground relied on is, that the interest of the husband was altogether contingent, and dependant on the wife’s making an appointment in his favor; and the case of *Fitch*vs. Hill, is referred to as authority.

It would, perhaps, be enough to say of these cases, that they are put on the ground of interest entirely, and not on the general policy of the law, and can hardly be regarded as authority upon it, but the Acts of our Legislature have prescribed the English Common Law as our guide, in all matters where it is not altered by positive enactment, and not inconsistent with our peculiar institutions and customs, and we know of no higher authority for the Common Law, than those before referred to. I have the very highest respect for the decisions of the able men who preside over the courts of our sister States, but we know from our own experience, that a court having once established a rule at variance with the common law, either from inadvertence, or in the confidence that it is injurious, it is followed for the sake of consistency, even after we are satisfied of its fallacy. Besides, that in looking through the decisions of the courts of the different States of the union, we find so many contradictions and qualifications, as to be unable to abstract any settled rule from them, and, without any want of ability or learning in the judges, all are, more or less, influenced by usage and local circumstances, which do not operate to the same extent in England; and where there is a dfi versity of opinions, I should confide more in the judgment of the English court, as to a rule or principle of the Common Law, than in that of any one of the States. Appeal dismissed.

Dunkin and Harper, Chancellors, concurred.

Johnston, Ch., absent from sickness.