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

foundation sinking beneath them yanshes out Of sight
consideration their decision But sir cay that that is the
solitary decision the books support OF the position my
learned adversary Indeed It the solitary decision the
books ezpoundng the meaning and eject Of the Act Of 1867
with the exception OF Special Term decision. which my
learned associate viii call your Honor Genon-a Special
Term decision Of the Supreme Court Reports in Robin
SON. Now, Sir, although that be the only decision In
construction OF the Act OF 1857 only tina:
occurred under operation the Of In Barbour
you will find page 100 the Of Bulre reahnead,
which action. Ike this Of criminal cOnrrsation, in
which plaintiff propouuded himself witness and
accepted witness and admitted winess and tes
fed witness and he alone testified to the fact u the we
adultery the learned counsel appeared there both
sdes-an able Court the General Term Of this Department
which presided Mr. Justice Gilbert; and these able men,
bers Of bar and members Of the bench then having this Act
Of 1867 concreey applied that brought their a;ten
ton II never occurred 70 them that the Act Of 1857
affected the competency Of The plaintiff action OF criminal
conversations but the contrary by concession they admitted
question cay that he competent witness and
competent witness, that he verdict Of $1,000 damases
whenupon the appealed 70 the General Term, and
defendant Of ezerted himself and the counsel
enteng and ingenious counsel Judge Nelson among then
Homer Nesonihey exerted Themselves with view 10 dis
parace that JUDGMENT and that verdict AID they
| tortured ingenuity and research ind ground
/ upon which 10 batter down that Judgment yet 1t
never them the objection that witness
uuder the Act Of 1861 a competent witness.
judgment reversed bat another ground namely
band had yes aduteyreyered
upon that ground with suggestion, with iutmaon that
he absolutely qualified and competent witness not only
testify your Honor please popular parance in his own
behalf testify wfe adultery and against her.
Again may please your Honor by reference 70 Vol New
York Supreme Court Reports page s. you viii observe the
Of Petre Howe decided in 1fwnereas Damn o. King
dom decided the year DeOreWhch q Pete Howe
was sso al action Of criminal intercourse very peculiar
many respects particular under consderas
There the husband permitted testify and permitted
10 testify without question Of his competency as witness per-
mtted testify the result Of obtaining verdict from the
judgment entered upon which verdict appeal taken 70
the General Term and tie eabora;ey argued, We may
suppose by bar certainly deliberately considered by the
Court and there objection taken either by counsel o.
by the General Term Of the Court that the plaintiff Lad been
Improperly admitted witness There ~as no INIT or sLs-
cesou by Of the Ac; Of be ceased 70 be
petcnt witness On the contrary, the Judgment attacked
for errocrors in the admission o. evdeaceother evidence
But limit suggestion repeat either by the
rel for the appellant by Court that the witness not
entirely competent witness On The contrary, BY impc
tJH, by emitting such exception tAey, II eject admitted
That he competent
4 JUDGES SECOND TuO~GHT.
And observe may please your Honor the opinion q the
General Term by J-dge l. Darwin smith. tie very
Judge WHO pronounced Tie decision ia Damn O. Kingdom
Hence what's the inference, That his sober second thought
with more DEL )erate Ie3l, had conducted In % The
conclusion that his decision in Damn biz don erroneous
anu 1o1u ~ s----5- - 4-N,' -! - = a.
conclusion, clearly it u Tat IN tbs case %
Fetrie Z. Howe he silently, without objection
conceded the competency Of The witness now, s this then
is the only decision IN pa decision not q any superior
tribunal; decision pe-fancory and co1tercd and aasas
tanned by any principle authority, decision which s mani
fey eplt the very statute upon which il Iurpors 20 be
founded and he question u.s. vii your Honor be icd by mat
dc-ls0Lf You Sir lace. IL this dilemma Here Is per-
emptay. positive Il the people Of the STATE
q NewYork declaring TIA. 10 witness shall be excluded be-
De party. On tie other land here dec char
acrz.l and discrcd'yd by circumstances which have
cited saying snail not be admitted. Winch vii you
cley' have Le-4-.a corJa,lrag that yolr Honor
VIII obey imperative and Lain mandate Of nc T tc-a-e
this opinion t decision too ll- yoke ~ s-JJls4e yJu-
Honor independence
ANOTHER oBTE~TI0y ASswEgZD.
TIE learned Cenaman urged another and an independent
reason why plaintiff not competent this action
behalf that being based upon this proposition
Of Jaw which formulated namely that collateral pro-
ceedin- that is say action between trd parties
neither husband wife testimony tending % crinate
the other Your Honor observes the terms Of the proposition
Now the first rely 20 that s THAI though The proposition
be sound and valid, it does not 20 % The question
here under debate. The question here under debate i
whether this witness j. competent witness, whether be
may be gworn q witness whereas, tl-s proposition
true touch the question OF his competency bu;
goes only intercept tie delivery n particular testimony
namely testimony tending 10 ncrnn4e the wife-so that
upon the s7cn-h Of that very proposition II t he true be is
competent witness be and entitled 20 testify gen
orally cause; but the proposition 5e true when be
comes deliver testimony Terminating the WIFE then me
Gentlemen on the other side may nteoa and arrest the ey
Leuce But, your Honor please, tie pro?o
siaon Is not valid. sound, proposition OF aw.
Il Is not law 10 law q ENGLAND. lreeuncnty ard
empnat.caly tie law Of New York that in collateral
proceeding that f. acton between ta-d parties husband
and wife may testimony tending 90 ncrmlnle one an
other The earliest indication q u law thrown
1fu3r indie only OV1 flf
coucedc adiuGicaed case which ny learned adj
versary either has discovered 20 have been orued or else
in the abandon Of discussion be forgot % call your Honor a.
ton which have rejected and oyeed ~ ior soon
sf,erward Of Rex BaLwick, reported IN tue p
u Barnwal Adophus and AGAIN the case q Rex ts
All Saints reported in 9th NlAe 81 Sa0y1, hat very
Court which originally promulgated THIS rule, retired
from this position, renolnced the principle, recalled
the ard efectuay oycrruled II and in
those two the husband the wife was U-mited 70
testify in case although the testimony went directly 10
convict Of perjury and in the other went
directly convict hin both Of perjury and Of bgamy Now
thus the Gaze overed there But meanwhile the erone
Gus decision had cot heldway and your Honor knows
with what fecundiiy decisions propagate themselves
so eventually rule Of law got incorporated in some books
q no authority but however adopted By some o. the
courts in this country nsogch although the rle has been
England and the principle repudaed yet frank
y admit Of the reports Of this country stu an
actual living principle. But Newi ok never has been
the law tlH state, anu IL not heItOie INV toay' WI
las recognized in the law Of evidence By any
authentic and authoritative writer WHAT says GIeeeai
Vol I Of bis treatise evidence, Sec. 3i2f
But they husband and wife not admissible IS Wit
against other where either j. directly interested IN
the event proceedings, whether civil or criminal
Speaking % the common aRJ Yet m collateral proceedings
Immediately affecting their mutual interest Their evidence
receivable ythstanding may tend 10 crinate or may
contradict other subject The other 10 esa demand
Notwithstanding may tend ~ crmlnae, Greenieai an
noupces that 70 be the rule Mr. Philips, lis
bookwhich without nyidous comparison may stands al