New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1875-01-30

So mprudent 80 injurious method to the Of this plain
m but consideration could have mised my learned ehd
into and that thisha at future stage OF TINS case
would the OF proofs have given him such support ana
justification as now.
Now your Honor please what Is the question Of law and
how have the authorities and of learned friend
varied from mpugned any proposition that make we are
discussing the question OF the admssbily OF this pnH
upon the law Of evidence and the law of the married rea
they concurrenty this state az the pescnttne Ana
submitted your Honor and do not find any impression o
contrary this proposition that under the Code dealing
with thelaw evidence its general direction there Is no
petence that opens the mouth Of the husband or re-
gard whatever where the principles Of the common law e1cudu
them. NJ learned friends have thought worth their WINE
occupy great part OF their attention. and Of the time otihe
court in careful examination Of series OF decisions "ch
based upon law Of 1851 concerning evidence provision
in the Code which, by unhappy constructions or some
unfortunate oosencs let in the idea that in opening witnesses
who formerly excluded for interest thereby husband ana
wife admissible the ground that interest was tue OASIS
OF their exclusion Those Of Potter Marsh ana
Wehrkamp Wiett and several other cases ced III lhat
connection whether the good or bad whether
II was Intellectual or whether it gave practical rule
or not have all become urnmportant Tor uiS P'e-
sent discussion, because that regulation OF the Ia"
Of evidence has been repealed and thncral law OF e'ue
stands now upon the Code It has read since lo winch ny
No no.by can be tortured into any other effect than the
Generalization that interest shall longer exclude ana ta'
the fact being party shall not place that party on y %
plane OF being witness than he were not party Now my
learned friend who first addressed you for the mouuc
Of the witness no doubt undertook to say ana 10
think that there was something in that state OF tne
lay that Il have spoken Of that in terms per-
mtted the introduction of the husband or VIE az "lnessc
And 80 far as there phrase OF that knd wa" perhaps
in great part the basis OF the reasoning which finally came 10
an nd nv tho experience OF the community Of the profession
and OF the Judges which led to the final position on the
subec, OF the general rules Of evidence found in the
Code Of 1859 All the reasoning then, Of Judge
James in this Of Potter q. Marsh IS wholly
unimportant now Aud that Judge james himself
before the change Of the statutory law did not regard
the doctrine Of competency for husband and wife, now contend
ed for embraced in the then state of the law to be found
in the Of Chamberlain u.s. the People in the Court Of APP
pcals in the 23d Of New York read from page ~
In thus holding does follow that the evidence given
on the hearing admissible. On the contrary, am clearly
prevent f. Il Is well settled that neither husband wife
competent TO prove access during wedl0ck whatever may
be the form Of legal proceedings whomcycr may be-
the parties thereto citing the Gaze which call
independently any possible motives Of interest in the parcq
lar upon principles Of public policy and decency and
has been and intended to BE- changed affected by
the Code
Mr. Beach-Mr Eyars will you permit to refer you to
paragraph that which adopts and approves the decision
Of Potter e. Marsh in the 30 OF Barbour preceding para
graph which yon did not observe:
Mr. EyarsBu the difficulty that the Court did not concur
in that observation.
Mr. Beach Certainly: it in the opinion Of the same
Judge
THE GAUNTLET or DEBATE DEorPED AND AccErTED
Mr. Eyarts-Ycs but not Of the Court the Court did not
pass upon the question Of the competency Of husband ard
wife witnesses against each other generally in suit be-
tween them Now, that a point upon which
Justice james continued his observations that he
had made in Potter = Marsh. But nowthstand
ing those observations and his adherence to them,
he did pretend that the rule he commended for IN Pot
ter Marsh covered proposition that the husband wife
81. . 9th.
must then appear very plain your Honor that the law govern
ing the admissibity Of husband wife wit
nc-ses against another I'm suits all suits finds it,
present and support limits and authority in the statute
Of 1851 viii my learned friends point to amy statute in this
state that enables husband and wife testify the present
moment except that of 1851: challenge contradiction
Of that proposition That law is the only statutory authority
enabling or restricting within the ability conferred,
husband and wife TO appear witnesses for or against one
another in the that are within its pnr'iew
Mr. BeacTha challenge should 90 entirely unanswered,
Sir. by reference the of South~ck southwck in
49h Of New York. your Honor will perceive without an ex
animation Of previous determinations, that it considered
open qucsonupon which there considerable diversity
Of Judicial sentiment whether moi husband and wife were
made competent witnesses for against each other by
the enactmcnts OF the Code OF Procedure, by those
enacmcns Of the Code which atpcscnt abolish the ncompc
tency the ground Of interest o being party to the action
And all toe decisions which eliminated in the remarks in
the 18th New York passed not upon the peculiar
visions the Code Of 1851 but upon the propo
ston the disabilities Of interest and Of being parties to the
action have been abolished.
Mr. Eyars-Well do understand my challenge TO be
met for do understand that there proposition, in
any Of the Of this State that under the general removal
OF interest bar competency husband and wife ill.,
or that under the provision that being party shall not exclude
as witness, there is any enabling authority in party
to testify beyond what he could as witness if he
were not party. Now, the case in the 9Th Of New
York which call your lonors attention. while these vague
uncertain determinations and loose language Of the Code still
remained the subjects Of judicial debate settled finally that the
removal of the disqualification Of interest did not introduce
husband wife but that they stood upon the law of
rap. need add but authority to those to which
call your IOnors attention. and that is Of the greatest
authority and the present modern law declared by
that great authority mean the Supreme Cont Of the United
States Of Lucas Brooks in the 18th Of Waaccs
Reports page AZ decided in October 1873 The first IS that
the Court refused admit in eynence the deposition Of
Catherine Lucas. the wife of the defendant that it is
a rule Of the common law wife cannot be received
witness for against her husband, except in suits
between them, in criminal cases where he
prosecuted wrong done her is not coniroyered But
argued because Congress las enacted that in civil actions
in the Courts Of the United States there shall be exclusion
of any because he is party to interested in the
issue tried the wife competent to testify for her husband
Now that il the very question that has been argued at such
length.
Mr. BcaCh-Oh, no
Mr. Eya-On the effect Of these earlier Statues and OF the
Code.
Mr.. Beach-Oh
Mr. EyasThe only question which you argued upon that
was precisely that Undoubtedly the Act OF Congress has cut
up by the roots all objections the competency of witness
on account Of interest; but the objection to the
wifes testifying behalf Of her husband is not
and never has been that she has any interest
in the issue which he is party. 1t rests solely upon
public policy To that the Statute has application Now
in the case In Rdeous Trusts" doth Of Equity Cases
Law Reports Englsh) Vice Chancellor James holds when