Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-02-08
DECISIONS OF THE SUPREME
COURT.
Nashville, December Term. 1850.
Reparted for the Union and Dispatch. by Linds
tnv A Rfid

COURT.
Nashville. DeceEnber Term. 1866.
Remarked for the Union and Dispatch. by Linds
iey q Reid,
Robert Allison u.s. Peter Barron.
This suit was instituted befoEe a justice
Of the peace for the county Of Bedford, by
Allison against Barrow, upon account
The Justice rendered Judgment in favor
of the plaintiff for 500 81. From this
Judgment the defendant appealed 60 the
Circuit Court, in which a trial was had re-
shifting in verdict and judgment in favor
Of the defendant for the sum of $50 20
A motion for a new trial was made and
oyerruled, and an appeal in error prose
cuted 10 this court.
The facts necessary 10 be stated are briefly
these Upon the trial of the cause the
plaintiff proved his account against the de-
PENDANT, and thereupon the defendant
offered and read In evidence, by way Of set
of against the plaintiffs demand, note
executed by the plaintiff 10 the defendant
for FIVE hundred dollars.
Therenpon the plaintiff offered 10 prove,
by oBe Mrs. Winsett, that she heard the
wife ofthe defendant Say ia the presence Of
the defendant, that the pisiuiii had paid
said nofe
The testimony was objected 70 BY the de-
fendanf. and the objection was sustained BY
the court, upon the ground, AZ il is stated
in the bill Of exceptions That the statements
of the wife, although made in the presence
of the husband, cannot be given in evidence
against him. In thus totally excluding from
the Jury, evidence Of the statements OF the
wife in the presence OF the husband, we
think his Honor, the Circuit Judge, erred
II Is conceded in argument that the wife
cannot be a witness against the husband,
and that, generally, her statements in his
absence, cannot be given in evidence against
him.
Phillips on Ev. 81, says "a discourse be
tween husband and wife, in the presence Of
a third person, may be given in evidence
against the husband like any other CONVEX
sation in which he may have been con
cerned"
This question came directly before this
court. in the case Of Queener rs. Morrow,
not vet reported, IN which il was held, the
statements OF Che wife were admissible
Judge Mckinney, in delivering the opinion
of the court. after quoting the rule as sta
led above. saws. This must necessarily be
so. and the general rule which excludes the
wife from being a witness against her hus-
baud is not impugaed in its spirit in such
case" -
The object Of the testimony in this case
il 10 show that the defendant admitted the
note had been paid.
Admissions maj be explicit and solemn
or implied, from the acquiesence, silence,
or conduct Of the party.
1.-THE s,.atemelts Of the wife, in the
presence o. the husband, are not 10 be re-
eeived on treated as epideaoe against the
husband. but merely "a indacemeff 10 the
responsive admissions, declarations, or acts
Of The husband at the time; except for this
nurpose. the statements Of the wife are OF
no egiect. !" and we are unable 10 perceive
vbv the admissions of the husband 30 the
wife. either explicit or implied, in the
presence Of q third person. may not be
owen in evidence against him, under the
came rules. NJ his admissions 20 other per
aons We cannot see that any rule Of pub
lie policy IL thereby violated. Converse
tiops between husband and wife, or admis-
sions made by either 10 the other, IN the
presence of a third person, do not belong 70
The class Of privileged communication be
tween the husband and wife, which, upon
grounds Of public policy, and 20 preserve
The haupiness Of the married state, are 80
carefully protected by the well established
rules Of evidence.
The declarations and acts Of the husband
in the presence Of the wife, may always be
shown in evidence against him, yet Il might
and frequently would be, impossible e
show the meaning or application Of the
declaration OF act, without proving The
statement OF the wife, by way Of induce
mont or explanation Of the declaration
or act of the husband, and, as hal
heen already stated, the statements O
the wife in the presence Of the husband are
NOT admissible for any other purpose. II
n, This csse. the wife Of the defendant stated
In me presence of her husband aud th,
witness. that the note In question has
heen Maid. it Is competent for the plaintiff
40 show that the defendant responded anC
,rniicitly. or by his silen; acquieseence
impliedly admitted the truth Of the state
meni.
Rut in ali cases the force and effect Of az
admission must, Of course, depend upon tbs
circumstance under which il l. made
Iinser some circumstance, il must be re
corded "a evidence of the most convincing
kind IN 0tleiH, ~ Aaas y " w. "',it
force and i'm Others. entitled TO no Consid
Grafton whatever.
In order that party may be Affected 10y
the statement Of another, ON the ground O
his implied admission Of its truth, 10y IN
silent acquiescence, Il must distinctly ap
pear that hc heard and fully understoos
such statement 30 Phillips on Ey, aoie
l9l.
In Greenlief on Ey., vol. /, 1879, it i
said "Nothing can De more dangerous
than this kind of evidence. Ii should al
wsvs he received with caution, and neyei
ought 10 be received az ell, unless the evi
de5ce is OF direct declarations Of that kind
which naturally calls for contradiction
ct may be impairment and best rebnkeo
by silence" "Iftha declarations are thos'
of third persons, the Circumstances must b'
such as called on the party 70 inter
fsre, or, at least, such az would no
render il impeTiinent IN HIM &
do So" In this case it Is insisted that il
would have been Improper on the part o.
she husband 70 have interfered and contra
dicted the statement Of his wife, and from
this consideration chose to remain silent
without intending 10 admit the truth Of th,
statement This may on may not be true
The condition and relations 81 the parties
together with eli the alleged implied al
mission, must be Considered OF by the jury
under proper Instructions from the conf
in determining, LIST. Whether any admis
sion, either explicit OF implied, has been
Isade? 2nd. What effect, il any, is due &c
such admission amer IL Is shown 10 hsv,
been made
The Judgment Of the Ciucuit Court will
be reversed snd the caused remanded.
IL A sr-sre.-s III.