New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-29

the second saying your Honor please that the en-
abng section which have read which lets In husband or we
In certain Judicial inquiries is nevertheless limited and nst
call limitation before consider the second sec
on which that this statute has application to this
case Where they arc competent and compelable II pro
| vided:
No husband or wife shall be compelabe dlsclose any
confidential communication made by one 70 the o'hef uuS
| their marriage
So there your Honor preoeiys In where they can
be used witnesses limitation upon the argenes' oil
their testimony and though would not strike legal resoner
very satisfactory that tho limitation should BIO simply tha
husband or wife should not be compelled to disclose con
fdential communications and leave therefore uli'
| they might volunteer, yet there is an auemp.
| on the part OF the Legislature TO furnish rule ua'
protects certain the saenes OF confidential COM
muncaons Now that act aud that alone has disturbed
the OF the law the subject OF the admssbiy
Of this witness Mr. Ton, here and the that has
disturbed iii by the clause section OF excusonof the alter
alton OF the statute upon such is now pending
before your Honor And that Is found In the second secon
Nohng herein contained shall render any husband wife
competent or compeabe 10 Give evidence for or against
other any criminal action proceeding except 70 prove the
ing instituted in consequence OF adultery any action
proceeding for divorce account OF adultery except to prove
the fact OF marriage or any action or proceeding Tor OF on ac
count OF criminal conversation"
The Court conclude that:
consideration OF the witness being incompeentat com
law upon the ground OF inerc., In the event. ne
remain incompetent until statute shall remove lhat
| ground Of incompetency."
REASONS WHY TnT0N SHOULD NOT TESTIFY
Now Statute was passed in 1861 which opens the tea
mony OF husband and wife to a certain extent and IN
certain Tho report which l now read from
arose after the passage and taking effect OF that
Statute, the 10th New York reports, the case OF
Southwck Souhwick page $40 was an action brought
plaintiff against her husband to alleged balance
moneys his hands belonging to her separate estate ana
received by him as agent The defence payment
On the trial, tho defendant offered himself as wit
ness in his behalf The plaintiff counsel objected
that he was incompetent. There your Houor sees II
was a mere money interest between husband and vile,
in which wife sued and the husband defended on the
ground OF payment and offered himself witness Now as
understand from examination OF this case the competency
OF the witness for the evidence for which he was called was
within the allowance OF this statute, and the question was
whether the principle by which death divorce excluded
at common just thoroughly the continuance OF
the marriage relation excluded such testimony whether tins
could considered letting in evidence arising in the
marriage which evidence prior to the passage
OF the That the solitary point there to be decided
and Of do not cite the for that purpose because
that pertinent here; bnt necessary foundation Tor
the judicial determination OF whether the witness
there was excluded or not, it became necessary for
the Court to determine what the rule OF com
mon law anterior the Statute OF 1867 upon this point
was whether II did rest entirely and thoroughly not upon
interest but upon the martial relation. And they examined
therefore, line Of which have called your attcn-
on particularly perhaps than the Court had had
before hehad under view And as understand this case
it determines that the common law OF this State up to
the time that this decision Is given, Is the
common law I have given II in the English au-
ores would exclude and does exclude evidence ola
husband bearing against the interest character OF his wife,
or Of the wife against the husband, well any question
involving the interests OF or the oher and then the ques
ton was what had this Statute done in reference
this relation OF husband and wife and the Introduction
OF either as a witness in controversy in which
interests OF the other concerned and
they held that the proposition the appellant that this Statute
considered enabling only for concuuences in mar
red life subsequent date is unenabe that the common
law until changed excluded upon the grounds OF policy but
that the Statute 1867 had changed the common law 10 its
application We thus have the highest authorities
OF our State sustaining the proposition that until Statute
changes law rule applicable 10 Of this Kind
the law Of this State that witness proposed as this
one is must be excluded.
Now at common party could be witness no formal
party a could witness. And in large number Of
cases in which this question might for the
fact that the witness party, it could not arise
because the law swept out at once all parties
as witnesses. Our code has put the matter Of
| parties (and | think my learned friends will not
question my propoon simply upon this ground that the
party not the fact OF being party to be excluded az
witness and the question when party Is called is tue same as
to exclusion would be II he not party There is
nothing therefore IN that changes the rule of the
law in this regard. Mr. Tion is admissible
for being party here than he would be il he not
party Then the Act Of 1851 which intended to
moderate and qualify matee Of interest," the exclusion OF
husband and wife For when the practice that in
tere>tcd witnesses should no longer be excluded came
in all efforts to Introduce husband and wife the
ground that their exclusion rested interest, failed,
before the courts for they said mo, rests upon the
marriage relation" Now legislation has varied the rule Of
the law and with specific intent to berze the pro-
ducon Of evidence from husband and wife in in which
they concerned that enactment is found in the SESSION
LAWS second volume Of laws Of 1867 page 2 1t is brief
Honor Of repeatedy
The stands then the rule of evidence upon the
mon law the statute with wise respect the Of the
inquiry has that public policy coud tolerate the admis
Of evidence Of either party against the other in that inquiry
any whatever and that any careless expectation Of
legislation you could introduce into such issues and such
controversies the testimony Of either and expect to limit
reduce or by any rule Of protecting what conf
dcnce or excluding eliminating would be vain and
lusory effort that would leave both the marriage relation aud
the administration OF nsce 10 equal disgrace and danger We
have now OF things and need only ask your OnOrs
attention to decision General Term Of the Supreme
Court the Fourth Department the passage
Of this and in Grim, csse-the case OF Damn King
ham in the OF New York Supreme Court Reports page
4J9 Now, the single fact to which the plaintiff pro-
posed be called witness in this OF Damn and Bingham
"a plaintiff standing Mr. Tton stands here prove the
marriage between him his wife, That is question
arising in the confidence Of marriage marriage is always
celebrated of church aud the world therefore,
the proof Of that fact did not within any
any rule Of exclusion from its arising in the confidence Of
marriage 1t happened be grave practical question FOR
plaintiff. The marriage suppose was in common
humble life had occurred before Justice OF the Peace and
doubtless without any troops OF attendants and friends; and the
Justice Peace and the record or certificate which
the law requires and permits be Authentic when conorned
10 law when produced found to be defective and could
be plaintiff stood apparently the witness
prove the marriage or it could not be proved at ALL
and he offered prove il, and by the rules OF the
| Il. die from he Ou OF