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

right would have disqualified the wife by law
rues from testhying The action in proper
against him. He made 10 claim TO the property
Now thus say that in this action the plaintiff at common
law would have been competent witness save for the
that he party TO the action and that that disability having
been removed he 10 therefore validated by operation OF old
common law principles, q witness and made testify
here SO then, well upon principle upon authority
well by precedent by reasoning arrive the
tied conclusion that by virtue OF the Act Of 1867,
as amended by subsequent statute, that this plaintiff
as plaintiff because plaintiff becomes plaintiff consequent
upon his relation Of plaintiff the action competent
witness in his behalf Then the question arises whether
the Act OF 1867 DISTINGUISHES dabes him to be witness in
the cause and makes him contended by the other side
incompetent witness in the case.
MODERN QUESTION LrBERALHISs.
Now in view OF the uniform traditional Of legislation
and decisions In England and in this State have adduced
them to your Honor, in uew | say, Of this uniform
and unbroken series Of OF legislation all tending In d.
recon without ebb the direction OF enagng this sphere OF
competency and removing all the obstacles to the admsbiy
Of witness in view OF this series OF legislation are
confronted the threshold with po argument relative
1867 wrought the change contendcd for
In the Act Of 1851. II is not 10 be presumed, in the
absence OF express language 10 the contrary that
without adequate cause the Legislature would re-
its old principle rccede from its deliberate adopted
pathway and relapse into the obsolete abandoned maxms OF
the common law say this is valid, cogent and papabe
argument-an argument irresistible before your Honor unless
It be and ovcrhrown by the language the statute Well
Sir, far from being repealed aud overthrow by the
language Of the statute, find the title and text OF
the act concusiyey establish and cOncluvey cnch and
conclude the law maintain it, namely showed to de-
mOnstraOn beyond cay beyond question, that the Act Of
1867 docs conflict with the Act Of s57does not impair its
efficacy Why what is the title OF the act IAN act to enable
husband and wife, not restrictive but enagng act; not
disabling but enabling stan,e Hence plainly 1t not
within the intent OF the Legislature they did design the
effect by this act to dfranchse and to dsqua any COM
pnfan hon tn
teny and to bring upon the stage class Of Witnesses there
tOfore not qualified speak
And your Honor please let the very Lam
guage Of the act whether disQuaies and inca
pacacs Mr. Tion witness The learned counsel on the
other side relied with confident presumption will not with
presumpuous cOnfdenc upon phraseoogy Of this act
disqualifying the plaintiff here from being witness II your
Honor will do the kindness to follow the terms Of the
Statute apprehend there be question about it:
any trial inquiry in any suit action proceedings in
any court before any person having by law competent an
horty in any trial or inquiry in any sn trial or proceeding
IN any court or before any person having by law me consent OF
parties authority to examine witnesses or bear evidence OF
husband or VIE OF any psry thereto or OF any person IN
whose behalf such suit action or proceeding - brought pro
secuted opposed defended shall except as hereinafter
as any other witness on behalf Of any patty TO sch SUIT aco
or proceeding"
Now what ia the case provided ny the enactng part
Of the Statntcf The provided there is where
witness, husband wife, the case may be, is
propoundcd to testify for against husband or wife,
party action These the very words Of the Statute
Where the husband wife witness, is propoundcd
against husband WIFE party the action there is
escape That is plain ineligible that is ineligible and not
be contradctcd Now them what is the cXccplon May
please your Honor the Office Of exception 10 take some
thing the cnacns clause Of the Stauteo abstract de-
duct aparcular thing which otherwise would have fallen
under the generality and in the atcsO! provided for
by the cnacting part OF the Statute
Hence an exception necessarily the hing that
the enacting part does Now let read Tie exception in is
State in that light
Nothing herein contained shall render any husband or
wife competent 10 give evidence FOR OF d-n The Other ia
any action Of criminal conversation or aiui,cry'
That is TO say, husband or wife shah not be
competent compclaOle TO give evidence against hu--
band wife in case where he she party the action.
There resisting that First contcmpacs where
the husband or wife witness sddrc,d testify against
husband wife, mark, against husband or wife, and
ondy and further where lac is adduccd to testify not against
wife having sentimental interest the action but against
wife husband party 10 the action That is the reading Of
the Hence your Honor will perceive, in view Of the
uniform policy in this state in view OF the very
title OF the act baloncd upon iS threshold 30 70 speak,
view Of the literal aud large pbaseooy and eject Of the
act in Of all This You perceive that Ibis rct OF 1851 dos
touch the act Of 1851 They speak in different
orbits with point Of contact between them in lines parallel
that run on TO nGniy without touching They cover different
subject matters; ucy contemplate different The act Of
1857 contemplated the witness i'm his absolute individuality,
namely party the action and provides that he might
testify himself The Of concmpatcs the witness in
his marital relation, in the relation Of husband wife and
provides when may and when he testify the
other husband wife The may BE- So that The two acs
repeat not N conflict in contact chcr On the
ary the s supplement TO the other The first provides
only when husband might testify wife might testify by
Of being party the The other the
(which intcp1-cd husband and wife testify s
against each other they parties to the action
MRS TBTON's ATTITUDE TOWARD TIE ACTION.
But it may be said on the other side, and in
fact it ntimaled indeed have a prcmoniOn
Of it from the limitations OF my learned friends
il may be argued That virtually MIS-. Triton is a
party this action any rate, that She has such
interest in the action makes her II titular
least virtual party TO the action Now Sir "ntccst,' az
applied qualification disqualification Of a witness il
well known TO the law Formerly. has been already
developed the discussion interest disqualified witness
Wcil what INTEREST," Why other interest but pecunilry
interest. pccunary interest OF Fix sufficient
to make witness incompetent bui er.ntercst; and
it another illustration OF The absurdy and barbaOus Jon
Of the old common law that whereas an interest in the
event Of action OF six cents made The imo.t reputable
man in the community Incompetent witness, yet
other interest matter what it might be, disqualified
or affected him Hence it that while person ha,-
ING this interest Of ak cents d the event OF the
cause was incompetent, yet father might tes-
tify against son, brother against sister, a
daughter against her mother might testify, not only
in a cause involving money but testify in involving hb
erty reputation aye, life itself Hence say that the word
interest" the clause financial interest. Now,
Sir what financial interest, what pecunary interest,
what material interest has Mr.. Tlton il this action
repeat she has prodgous interest," shc has interest Of
character: she has interest however, that the chill
do have that the friends have the in kind though
in degree II an interest Of feeling it IS an interest
peat Of Tepu but not the interest which the common law
necessary and encaciOus but constituted
party interest, party TO the cause Hence IN 10 Bar