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

soSe OF be sde parties actions and proceedings II
INTENDED to n' % all oh parties C1 better s9% 'i ngna re
Soua have been employed to signify sueh mten
bon have i Sen employed And IL was designed to perpc
nate the disability Of particular class OF parties
w ~S%t me iesstue would have said words and
ic TO inference sad implication when The LEGISLATURE
speaks in Psn precise positive and nnSnegT3ns Terms rms
tie courts are boand to accept what they have nave
said for what hfy d er as 40 fcS S S and
causes which o0gent and controlling they appear
trainers q this amendment knew, quit, well that married
women with husbands in numerous necessary
and indispensable parties to legal proceedings and without
nSS he sdmnsterod And Ills reasonable 10 think that
This numerous class be excepted from the effect OF the
radical innovation in the ola law o. evidence ane
Hall No. Hall 80 Howard page 49, shows that husband
wife parties to the acon competent witnesses for
ssan other yet s in such each is admissible to
testify in his or her own behalf
White e. Stafford Barber page 40 rules that wife not
marty action not then competent witness for the
husband that under section 800 OF the Code the Act Of
1851 all parties action competent In their own be-
half
Card o. Gard seth Reports page ST. holds that section
Of the Code makes party to action competent witness
his behalf though associated the same side with his
wife as party" Opinion by Woodruff J)
Aso zee Shirley e. Vail Both Howard, page 4O7, Court Of
Appeals, per Grover ].
Smith Smith, 18th Howard page 165, suit by wife
divorce the ground OF adultery and the plaintiff ad
parties action witnesses yet 1t does not enable hus
band wife testify against the other, in action be-
tween them.
In Maverick and wife against the Eighth r r. Co..
seth n Y Reports 1850, it held that the husband,
party competent witness for himself though sueing
Jointly with the wife The language Of the Court there is
emy applicable and cogent upon the present dcuson but
do to detan your Honor with full production Of it,
werkhsmpt r Wlett Abbott Court Of Appeals decisions
page SIS uSo an action by wife against the sheriff for
HOY in he
contention was that the sheriff claimed the goods the
property OF the husband the husband virtually party to
The action and plaintiff the wife, disabled to testify in
her own behalf
At page 5S Mullen J. saysa single paragraph cite
by section S9 Of the Code provided that party
acon special proceeding may be examined in his own he
half OF in behalf OF any Other in the same manner and subject
Il the rules Of examination any other witness"
This statute makes every party competent witness There
exceptOn and the have power exce
the operations statutes exception
oery prevent injustice obviously at with the ntcn
ton Of the legislature that it should be excluded.
Carpenter White, 46 Barbour page 22 1885, decides that
in action Of Grim the wife incompetent witness,
not being either nominay really party to the action In
fuch action, the husband is the only party in Interest
Babhott and wife Thomas 81 Barbour page 277 $3.50 was
by husband wife cancel bond and mortgage
and TO restrain the foreclosure Of the The husband
offered himself witness oprove usury in the consideration
Held that the husband competent witness in his own
behalf Notwithstanding the wfe interest in the event OF the
suit by Of her nchoae light Of dover in the mortgage
premises
schaGer Reuter- ct a. 81 Barbour, pace a 1882 it
ruled husband and wife cOdendants, she
If competent witness ia her own behalf.
In Macsonr " Y. c. r. r Co, 81 Barbour, page 3Gi de
cison 1861 affirmed by the Court Of Appeals, 80 " Y page
49, held that band and wife competent witnesses
Tor and against zach ether AL where they parties 10
the action
OBJECTIONS FROM FORM DECISIONS
Now Sir what the result OF this line Of decisions dec
csons emanatng only from the court Of primary juris
dcon ratified and affirmed your tribunal Of last resort'
What principle is hyrecyon when those courts differ
upon another Quoson-what principle is there that
stands salient and uncontcsed' 1t is this: that
party action being husband wife, in and in any
action when the husband and wife not also party to the
action ide Of the record the ohe that then in all
these cases party the action be he she husband
wife Is competent witness in her or his OWN behalf And
challenge my leaned Gdyesarcs With all their extraordinary
and a1m able research to find in the reports Of this State
fuce the Act 15 solitary decision which that
wife husband party 70 the action tesyng not against
husband WIFE, patty tac action that the husband
WIFE, when party the action, is incompetent TO testify
when the husband wife may be is not likewise
an also ptI.y tc action. Now, ST. we have then tins
rule, tbs principle, Pormpo,.y aud imporatiycy es-
illlisled in tie Jurisprudence Of New York
namely a' any person and every person in any and every
action emitted because he is party aud merely because
be is T4ry-s entitled, has the right Qti party, because
party 6ac m q.euce only o. being paryis entitled to
b. admitted tc vtuesboX AMI 20 testify in his or her
behalf provided he does not testify she does not testify
ainst husband wife likewise party to the action
Now challenge solitary decision in the Courts Of this State
time in conytn,on Of This rule stating it, as do
with it, proper limitations and qualifications.
Now sir therefore wherefore, is by virtue OF ths enact
1884, subsequently altered and modified down TO 1863
in The phraseoocy which presents itself to Us and
controls his therefore say this plaintiff in this action
j. competent and admissible witness.
arrive al the conclusion by smother process OF
reasoning The law upon he subject it stands is in
these words
No person offered witness in any ac'ion proceeding
before any C.ur, before any officer acting udcy snail
h cXClded because he g. party theIoIo.'
You observe The change in the phseoogy o. the Statute
from what None shall be excluded because Of
b.iu, a party the action
Now Sir this plaintiff presents himself party TO the
ac.u IN a. action Of criminal conversation At common law,
already shown udisputaby he would not have been
competent witness and why a competent witness at
common law? Merely, soely and exclusively because he
patty the action That was the only disability which
ncapac him and rcpeod him at common law from the
witness box And this because he testified to act Of
adultery committed by his wife with the defendant; so
when the legislature say that party shall be
eycuded from the witness box because he is q party,
there other obstacle intervening between the plaintiff
AID liz testimony in this ia England they have Statute
Known Campbell Acts That Statute like this removed
the disability Of party 10 action TO testify Now observe,
your Honor please: Removed the disability OF the party to
the action and all it accomplished 1t did not go fnr-
fber; but they added exception that plaintiff In an
action Of criminal conversation should not testify showing
plainly that when they removed the incompetency OF
party the plaintiff action Of criminal conversation
would be competent aud admissible witness Hence the
necessity Of exception Tcpclng him from the witness box
There resisting that argument II the removal Of the dis
ability Of party did not admit the plaintiff in action Of
criminal conversation competent witness then there was