Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-05-12

KEbEanZh Mitchell.
This Wasan action Of trespass. brought BY Mitchell
igelust the plaintiff in srrOr for violent assault
aud battery, committed BY the latter upon The per
| son Of the former
The case tried at the December term. 1857.
OF the Circuit Court Of Giles and verdict ard iusQ,
9eht we're rendered for the plaintiff for S437.5O
From which judgment an appeal in error ras urose-
! euted to this Court by the defendant Kiubrarigh
/ since the transfer Of the suit 10 this Court by
the appeal in error, Mitchell The deferdan. in aTror
dled; and his death having been suggested and ad-
ml.,eu upon the record Of this Court, a motion Is
/ MADE IN behalf Of his personal representation 10
have the appeal in error revived in the mama f tha
! latter. The motion is opposed upon the eomr,oo
law MAXIM that deio psrsoaalis sorisa, e,D, srsaa
This principle, We think, is not applicabi 70 ths
| case +
By the recovery in the Hfstims OF the i,iursa
party, The claim for damsges vas merged ia he 3
Judgment, and became debt with which the per-
sonsl representative Wss ehsrgeable The demand
beng tins impressed With the character CT 5eb4.
Il Is clear that It Is not only the Tgst but likewise
the duty Of the personal Representatives TO insist
upon a reViTor.
The position is altogether mistaken. thas he
Judgment is annulled By the removal Of the zane 10
this Court; and proceeding fro losingsiebt Of tbs
distinction between simple appeal and appeal in
the nature Of writ Of error. The latter merely
susPends the judgment Of tie inferior Court, and
does not annu it; and Consequently, IL The scpeai
10 error be sbated or dismissed the Judgment below
Is left unimpairej and in full foIee Furber NJ
Carter. Sneed P. l. The motion to revive is there
fore allowed
It may be remarked that the common Law maxim
that ga personal right Of action dies with the Der.
son. is NJ longer applicable in this State By see
hoE 2S46 Of the Code, all actions founded on wrongs
except wrongs eeeting the character Of tse piain-
tin. may be revived. Upon the merits Of the case
single question il presented ia regard to the eou
potency Of witness offered By the Defendant Il
seems that the difficulty cut Of MtcheTs III
treatment OF his wife, who the sitter Of Kil1-
braugh. And the marrisge having been dissolved
By divorce granted 10 Mitchell her the tsssult
aud battery complained Of aud before the trial Of
the present case, the defendant offered The former
wife Of the plaintiff to prove how the dificuly
occurred between the plaintiff aad defendant" and
the III usage Of the husband which led 70 it. The
Court held the witness to be incompetent testify
as to these matters, notwithstanding she dissolution
Of the marriage relation; and this Is assigned as
error.
We concur in the opinion that the witness was in.
competent Il IS irue there is some discrepancy in
The eases upon this subject. But no decision has
been produced showing The present case forms an
exception TO The general rule g. well established,
and Of so much importance on grounds Of public
policy The former husband is patty 10 tie suit;
bis interest is directly involved; and the main OBJ
Jects proposed IN the examination Of The former
WIFE, are TO show the abuse inflicted upOn her By her
husband duriIg the existence ct tho marriage
unioD and to justify or at least all ate che bat
terry Committed up01 him by The defendant in eOa4
sequence Of the alleged wrongs done 10 her.
II this were sllOsable, there would be DO stop
ping place. aud in all cases. whether affecting the
property, reputaiisB, or even life, Of her former
husband, she might be made witness. The ques-
ton IS too plain 10 require either argument or au
thoTify.
judgment affirmed AfcKryyry
correct copy J. P. CLARE, Cl.rk.