The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-01-29

l0COul-
petent to prove that the child was not be-
gotten bv the man who became her husband be-
lore the birth Of the child.' This is an important
position II Your Honor please, In which the whole
doctrine Is considered. and the conclusion Is
based upon this general proposition OF the pro-
administration OF justice. The case OF the King
against tie Inhabitants OF Klmeyer-the wife shall
not be called In any case to give evidence TO
criminate her husband. IL Ia tho authentic mar
rage that Is not admissible, though the case was
not an Indictment Tor blgamy but only case Of
The case OF Olden ana others. paupers, against
XII KING IN which the Court OF Appeals OF virginia,
the Widow was not competent witness to dis
close declarations OF her deceased husband in the
being slaves. The vile coul: not speak even OF
matters OF this kind given to her by her husband
one Of personal interest to her to hold the slaves
NOW, very Important case In the supreme Court
0s tn ex Un'ea states give; In the case Of stein
general rule shat neither husband nor wife can %
ios OF aganst each other THIS rule rs
WHEN HUSBAND COMMITS AN OFFENCE
against the person OF his vile the husband may
DC called as q witness, and II their statements OF
Iacts should contradict each other that would not
destroy their competency. 1t would not follow
perjury, and In some cases the wife may be wit
ness under peculiar circumstances. when the hus-
ex9sna may IN , 9s N the question to some
peculiar circumstances OF this case, viii direct
Your Honor. The wife cannot be witness to
has learned from him in their confidential! in ter.
course. the rule which protects domestic relations
with the basis OF character And lt ia Considered
that this principle does not afford OBJECTION 20 the
husband ana wiis while they are aI liberty TO in.
proponnded, but u renders them incompetent
TO disclose facts with relation to the issue.
There was suit IN which the husband had testl-
fled, and he was now dead, but the wife was pro-
duced as witness to contradict some or the
statements OF the husband and to show that the
Il, or as the husband mad stated the orr cSc
Svms.snc e.. to nI be- Mr. Justice Mclean de-
was concurred In by the whole Bench OF justices.
which at that time included the lac eminent
Chef Justice fancy, Judge Thompson, Judge Pc
ters and others equally eminent. the opinion pro-
muigated by these eminent Judges established the
by the interests OF society that the vile shall be
excluded from testlfying under the circumstances
have named 1t IL not intended TO 10y down any
rule as to how far
A WIFE NAY BE EXAMINED
on questions which int the husband, or which
OF the case. the opinion also audes to the statutes
which have been enacted TO protect attorneys IN
such cases, and contrasts them with the statutes
enacted for the protection Of the domestic rea-
tlon and shows very conclusively that the WIG
must be excluded from tesufyIn9 to acts in evi-
ing OF was against the husband, and the wife was
called upon TO testify that he had perjured himself
the CONFIDENCE which exists between husband ana nd
vile. 1t IS true that the husband was dead,
but thai dd no: weaken the proposition that
that was held TO Sc neoessary as mea. aas
principle Of private necesslss These opinions
were concurred In by all the judges OF that court.
~ THIS eoan 6 sous
Carolina judge, In the case OF the state AGAINST
Snsonnd an even gas ater pores
her prosecution therefor" The next case to
han anil
YorK-that OF Babcock. against Reeves, OF
Hill. p. ISL. opinion by Judge Bronson. The Court
ii Inc husband is dead from IN disclosing any Snow
edge that came to her IN the sarctlty Or the mar
rage relation which once existed between herself
Of the conversatiou.S In Burrei against against
Ba,ocock, It Is laid down on page Is that the
testify, nor can the wife, either for against each
other in civil cases, that would refer to tue nus
bands communication or the wie's, that had
been confidential or otherwise Neither can be
admitted, for the marriage relation that had ex-
isted between them during marriage, or that had
husband and wife. Hatranck vs.. Vanderpool,
N. Y, p. 153:-"The husband IS not competent
witness for the trustee or his wfe's separate
tate. The testimony OF husband or vile, where
either Is party. was excluded not at ali before
OF Appeals, goes through .he numerous rules OF
law as existing In this State az to the common
stand them: lit is very clear that the rule OF
THE EXCLUSION OF HUSBAND OR WIFE,
whether the other Is Il party Interested IN che
istence OF the marriage relation, and not at all
on me existence o. the principle OF witness
our law having changed the rule OF evidence eX.
Guiding interested witnesses rested on the ground
Of interest. The Court excluded tnat and SAID.
''N0, the rule tnat excluded the husband and wife
IL part OF the rule Of the institution OF marriage;
and the change or the rule In the respect OF In.
teres as affec Ing the witness in general par.
ties in general does not touch that reaJlon.n And
the Court in the consideration OF the question at
common law excluded the husband, not upon the
ground OF interest In the event, but that he must
remain incompetent until some statute shall re.
sumo that ground OF incompetency. Now statute
was passed In 1867 which opens the testimony OF
the HUSBAND and wife to certain extent and In
certain cases. The report which l now read
from arose alter It was affected by the statute. 1t
Is In the 40 New York Reports, Soutawck
against Southwlck, p. $40. Now, the action was
brought by the piaintn against her husband to re-
cover o balance Oh money IN his hands received BY
him as her agent. On the trial the defendant Of
fered himself as a witness In MS own behalf, out
the plaintiffs counsel objected on account OF
mOneycd interest between the husband ana the
Wife. for winch the wife sued. Now, as l under.
potency OF the witness Tor the evidence for winch
ne was called was within the allowance OF this
by which death or divorce excluded 1t at common
law just as thoroughly as evidence In the marriage
relation excluded such NEUTRALITY-SUSPICIOUS. this
statute would be considered as letting In evidence
arising IN the cause OF marriage, which evidence
arises prior to the passage Of the act.
THAT Is THE SOLITARY POINT
for tnat purpose but as necessary instance for
judicial determination, and whether the wltness'
OFFER was excluded or not 1t became necessary for
the Court 10 determine what the rule OF common
law and theory OF the statute this point was or
whether 1t did not entirely rest, not upon inter.
est, but upon the marital relations. | have ex-
ahmed, therefore, this line OF cases to winch
have generally called your attention perhaps
more tnan the court which had 1t IN view, that
the common law or this State, up to the time
this decision is given, Is the common law as /
have gwen t in the English authorities, and
would exclude, and does exclude. any evidence
OF the husband bearing against the interests or
the character OF his wlie or the wife against the
husband. as well as any question Involving
the interest OF one or the Otner. And
then the question was, what had this statute
OF 1867 done In reference TO this rule OF
husband and wife, aud the protection OF either as
witness IN controversy in which the character
and the interests OF one or the other were con-
cerned And the proposition that this statute
must be considered as enabling one TO testify and
not the other IS untenaDle and 1t cannot be
assumed that the statute Of 1867 mas changed the
Statute OF the common law IN its application to
the question. we mus have the highest aurnor-
tiles O our state to sustain the proposition, and
until the statute changes the common law will be
applicable to a case OF this kind. IL remains the