The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-05-11
Common P1eas-Part Second
Before Hon Judnn DalY
ACTION FOR ASSAULT AND BATTERY-CURIOUS CAS-,

ACTION FOR ASSAULT AND BATTERY-CURIOUs CASE
n OF LANDLORD AND TENANT.
MAY 10--Joseph II. Wagstaf and Helen his wife rs
7eops a. GM-This was an action for alleged assault
and battery The male plaintiff is attorney at law;
landlord Of the house In which wsgstaf resided.
From the statement of Mr. Coles council for the plain
t 1t appeared that tho defendant went to the residence
Of Wagsaf in Greenwich street. during his absence and
entered the bedroom where Mrs. w. wvs, and there
attempted to commit violent assault her The trans
action Is alleged to have been committed in July 1885,
and the action not for more than twelve
months afterwards. The assault not Witnessed by
third party but the female plaintiff heard to
and follow the defendant out of
house, and charge him with having assaulted her.
For the defence, Mr.. Edmon Blankman and another
ALL and that Mr.. Wagstaf is in the habit Of manuac
turing both criminal and civil actions
Jacob w. Frank deposed that he knew the defendant
and the plaintiff and his wife.
Counsel for the defendant objected any evidence Of
the female plaintiff until 1t shown that she tho
wife of Mr. Wagsaf The answer Of the defendant sets
up that he has knowledge Of her being plaintiffs wife,
The Court decided that the marriage should be proved
female witness called to prove that she had al
ways known the plaintiffs to be and wife; but
sci for defendant said would not do to prove that Mr.
Wagstaff had lived with this lady as his wife II must be
proved by the most solemn testimony. either by the
gyman who married them by the marriage certificate
Mr. Coles said that the parties married In Eng
land and II was impossible to give other testimony than
the wife Of the plaintiff by general reputation and has
passed as such for seven years.
This objected to- and the Court ruled that the EVIL
dencc nadmissblc, unless II shown that 1t
out Of the power Of the party to give any higher tesi
mony of the marriage.
Mr. Coles then under section 397 Of the code called
Mr. Wagsa to the stand and counsel for the defence
objected to his testimony The Court ruled that as the
action brought in the Of the plaintiffs as man
and wife, the plaintiff could not DO examined o. witness
in his own behalf
Mr. Coles then offered to prove by plainfthe loss Of
the marriage certificate.
This was objected to- and the Court ruled that the ex.
ence of the paper must first be proved by some other
party before the plaintiff could be permitted testify to
its loss
Counsel for plaintiff offered TO prove by wngstaf
that the marriage Of the plaintiffs took place in England
and that there witnesses in America to prove the
marriage
This was objected to- and overrucd Counsel for plain
tn then proposed to Withdraw juror and said that no
would send to England for proof Of marriage.
Mr. Blankman, on part of defendant, objected. He
would take verdict on the Counsel for de-
PENDANT wished to be relieved from the idea Of casting an
mputaon on the LADY, he made moral charge against
her. but in justice TO his client he felt bound demand
the highest proof Of the fact Of marriage.
The Court would allow the withdrawal Of juror on the
payment Of costs by the plaintiff.
Mr. Coles said that he would submit to q nan- suit
rather than entail on his client which would amount
to $780,
The Court then entered judgment for the defendant