The New York herald., 1875-01-30


coming here 10 prove his wifes inddelity. Ny
learned friend has found In that an excuse for a
vnuperative inyectiye against the defendant.
Nothing could have led my learned friend INTO so
inJudicious and lmprudent course as tins but the
could tue state OF the proofs nave given hlm
as much assistance and support as now Aiier
before addressed himself at considerable length,
the learned gentleman said he challenged contra
restrict husband and wre from appearing as w.t.
nesses Tor or against eacn other except ia cases
that specially came WITHIN its purvlew.
The counsel then called attention to the case OF
Lucas against BROOKS, IS Wallace 4s2 TO the
decision rendered October 1873. The Court held
that |, was rule IN common law that a vile can.
not appear against the husband except In civl
suits brought either by the husband against the
wiie or oy the vile agalpst the nusoaud. That law
has not been abrUgated
TnE OBJECTION TO wIFE's TEsrIFYING
against her husband rests soiely upon public pol
ICY 10 that the acts OF Congress have no applica-
uon. Vioe Chancellor Jayne holds thar the statute
does not abrogate the old rule. chief Justice Red
neld OF Vermont IN the case OF Manchester ys.
Manchester hoias that the vile is not a compe-
tent witness 10 testify either ior or against her
husband in any civil proceeding, under the act or
1852 BY the law OF the State OF New YORK there
never.was any pretence that the rule OF marital
exclusion applied where neither was a party 10
the suit. He cited Roscoe on the Law OF Evil
though this husband would be excluded ii adu-
terry were crlminay prosecutaole, yet the rules OF
spoken Of as witaln the rule tnat a witness need
not crlmnate himself When our courts and the
English courts lay down the rule that nus oand or
vile shall not be allowed to testify to any acls hat
criminate the other they held tnat they could
not testify to adultery because 1t crimlnaied the
other party TO tue conJugal relation. The laws of
all the States winch make adultery criminal, such
as s Maine, Ne% hampshire; New M Jersey Vermont
either husband or VIE to The adultery OF the other.
The code OF procedure has not changed the rules
OF the common law in tins respect The section
OF the code as remodeed in 1869 takes away the
foundation OF all he cases In which IL was held
now provides SIMPLY tnat no one shall be eX-
cluded by reason OF his being party or inter-
med in his own behalf or in behalf OF any other
party, in the same manner and subject to the
ness, except that neither husband nor wife can
oe required to disclose any communication made by
the section wHicn is literally I the same as tae law
IN Maine and Vermont, husband Is
NOT COMPETENT WITNESS
against any interest OF MS vile. The counsel
quoted the cases OF Manchester VS.. Manchester, "a
Vermt. 6is; Dwey VS.. Dwelly. 40 Maine, a77; Phi.
dcrvoort, o N. Y, 1884. 1t win not be pretended
that the statute OF 1857 (chap. sST makes the nus
OF Grim. con. from the cases IN which husbands
and wives are made competent to testify. 1t has
which the question arose that the plalnun In an
action Of GRIM con. Is not competent witness on
State. damn vs.. Kingdom. IN. Y. supreme Court,
492 In tnat case, II the plaintifr was competent
witness in the action ior any purpose he was COM
petent to prove the marriage, Tor he was an eye
witness OF 1t, and the testimony OF eyewitness
5 pous M hoanss S sms T I II
held that the action OF Daun vs.. Kingdom can be
sustained only on the theory that IN an action Of
Grim. con. the husband Is not competent witness
MIR. Eyarts called attention to the English cases
IN which the legal eptthet OF cases OF TINS kind Is
criminal and eliminating. He cited tue cases
before the Ecclesiastical Court bearing on this
point, such as Faucet vs.. Faucet, IN which iC IS
held by the Court that confession OF adultery or
testimony thereto made by the husband against
mating the parties The question now occurs upon
the point, not as to the crimnalty OF the action,
making it crime. Lord Mansfield laid down the
r. GENERAL RULES OF EVIDENCE
on the Gs cv Side Of sne the
rigor iu regard to the exclusion or admission OF
testimony as IN a criminal Indictment. Lord
Mansfield says :-"There mas never been an in-
stance either In civil or criminal case where the
husband or wife nas been permitted to be witness
for or against the other except IN case o. neces.
lty." THIS Is not an action where the husband
IS on one side and the wife on the other. This IS
not an action for perjury; it Is not a collateral
issue. IL Is the trial ITSELF, in which the plantlH
seeks to prove the adultery OF his wife with the
defendant, and the act OF 1857, which has oeen
designated the enabling clause, does not permit
the husband or the vile to testify either as
against the other in an action ior Grim con. The
meaning OF the Legislature is plain, that though the
nary cases, they to be closed in acuons who're
adultery lorms the subject OF the trial, whether
ny be T says Sn r
Class OF witnesses excluded are interested
in any seeS tSs assa ae
sci on the other side to show stlge
case in our courts in which It mas been .aeld
II would admit either MIR. Tilion or Mrs. Tiion to
know ir a witness is permitted to come upon the
stand, with ms viii dominant over the law, who is
ture stand appalled, at the prospect or the husband
or vile testnying against each other where the
OF the policy OF British limitations was strictly
followed here, and the counsel looked with dlslnay
ensue II the VIII OF this husband should made
master over HIM, and the law not master over
him.
Mr. Evarts concluded his argument by calling
the attention or the Judge TO tae TACT that the City
Court was bound by the decision OF the Supreme
Court, Notwithstanding the point OIL argument
when had been raised TO the contrary. This propo
siton was lMr Eyar5sD thas the Dissemination rn
binding on this court as on any other court IN the
district
Upon the termination oil MIR. Evarts' argument,
Judge Nelson, addressing the counsel, said tnat
he had heard on this argument tnat he was iuliy
impressed with its weight and Importance, and he
WouId endeavor to give M IL an possible attention
as he die not consider that 1t was necessary Tor
him 70 do so. He would do nothing more than
give them the statement OF MS conclusions, which
he would frankly state, and should he commit any
error 1t could be rectifled. He suggested that II
matter, IT might be well 10 convene Tor the trial
during the coming week at nali-past ten instead
hall past four instead OF lou O'Clock the after.
noon. BY so doing they would greatly economlze
time and would gain one DAY in the course OF the
week.
Mr.. Evarts replied that case OF such magnitude
and Importance as this had never. in his Judg-
ment, been brought to trial upon so short notlce,
and the labor winch 1t entailed upon the counsel
was very great. They could save more actual
time by being absent from the Court tnat extra
hour proposed. which could be devoted to the
preparation OF points in the case, than would be
possible were they to accede to the proposal OF
His Honor.
Judge Nelson then asked some Information
touching MIR. Evarts' understanding upon the
Right oI husband and wife to testify IN suits other
than Grim. con. under his Interpretation OF the
Act of 1862 which, being impaired, the Judge re.
minded the jury OF his oftrepeated warning
against reading the newspapers and conversng
on the subject OF the trial. After which, 1t being
now lour O'Clock, the Court adjourned.
And so closed the fourth week OF the great
scandal case.