Virginian-pilot. (Norfolk, Va.) 1898-1911, 1899-03-09

January l., 1899.
a WIFE CANNOT TESTIFY IN A.
SUIT TO WHICH HER HUSBAND
IS a PARTY, If IT is ~ PROCEED
ING BY y CREDITOR TO M
PEACH \ CONVEYANCE, GIFT OR
SALE FROM ONE TO THE OTHER
ON THE GROUND OF FRAUD OR
WANT OF CONSIDERATIONS.
II a PARTY TRANSACT BUSINESS
AS AN AGENT WITHOUT FOL-
LOWING THE DIRECTIONS OF
PARAGRAPH 2S77 OF THE CODE.
ALL THE PROPERTY ACQUIRED
OR USED IN SUCH BUSINESS IS
LIABLE FOR HIS DEBTS, WHETH-
ER CONTRACTED IN THAT BUSI-
NESS OR NOT, AND THIS IS so
ALTHOUGH THE 1, Il ID Z o X
KNOWS WHO IS Ills PRINCIPAL.
The facts are sufficiently set forth in
the opinion of the court. The Court
says:
by the common law husband ana
wife are incompetent to testify for or
against each other. Ii has been held
time and again by this court that in
IL suit i'll equity to impeach 4 convey
ance from Il husband to his wife for
fraud, neither the husband nor the
wife is competent TO testify. upon the
ground that both are directly interest
cd in the result of the suit. Upon the
same principle both husband ana Wife
are equally incompetent in Il suit on an
indcmnifying bond by the wife, where
the creditor has elected to proceed at
law. 1t is true that to the suit in
equity both would be parties, while in
the suit upon the indemniGying bond
the wife is alone Il party to the record,
but the matter in controversy. the al
legged fraudulent transfer is as much
an issue i'll the one case as in the other.
Tho husband, though nnl Il party to
the record is directly interested in the
result of the suit. and this is sufficient
10 disqualify the vie as a witness.
Mrs. Bowers. in the case at bar, would
not be incompetent to testify by rcas-
on of her own interest. y wife is COM
petent to testify where the cause is
her own. ana her husband has no in
terest in the result of the suit. although
he is a party to the record If only n
nominal party. II was not the inter
est of Mrs Bowers that rendered her
incompetent to testify. but the inteXst
of her husband lie had I'm interest Iii
rectly involved in the suit, which at
common law, would have rendered him
because of the interest that ut COM
mon law would have excluded him, wac
also Incompetent
The recent acts passed By the Gene
raj Assembly removing the incom-
potency of husband and wife TO testify
for or against each other expressly re-
tain the prohibition against competency
lin any proceeding By IL creditor to
avoid or impeach any conveyance. gift
or sale from the one to the other on
the ground of fraud or want of consid-
Grafton. and expressly preserve the
rules OF evidence at common law in
cases OF that nature. The Circuit Court
restricted the testimony of Mrs. Bowers
to the issues in the cause other than
that Of fraud. But it was decided by
This court in Steptoe V. Read. ~ Graf.
|. that If 4 witness is competent to
give evidence 1T all lie may be exam
lncd upon any matter in the record and
IS not competent for one purpose only
We are. therefore. of opinion that the
court erred i'm admitting Mrs. Bowers
to testify at all in this case. The main
question in this case is the proper con-
struction OF section 2S17 Of the Code
The purpose OC the Legislature in en-
acting the statute was to prevent per-
sons carrying on business under false
or fictitious names and firms. The
language of the statute is niain. OK
room for exception or qualification. If
any person. as is alleged in this case.
transact business rs a trader in his own
name with the addition OF the word
agent" or in his own name without
such addition. ana fail To comply with
the provisions Of the statute. 1t makes
all the oroDerty. stock and choSes in
action acquired or used in such bust
ness absolutely liable for his debts.
whether contracted in the particular
business or not. ana without regard to
knowledge by the creditor of the prin-
cpal, If principal there be. knowledge.
or want of knowledge. plays no part
in the application Of the statute That
is an immatorial matter. The only
question is whether the person was
doing business rs n trader within the
meaning Of tho statute and has COM
Piled or failed TO comply with its posi-
tive requirements. Tho only case
which has been brought to our atten-
ton. or which we have been able to
find. in which this court has placed n
different construction upon the statute
from the one we have given IL. is that
of Trevilian Y. Powell. III the several
other cases. in which the statute has
been under consideration by this court
no such construction is advanced as
was given in that case Under
these circumstances we do not feel
called upou to consider ourselves as
bound by that case, especially as we
are all of opinion that the statute
should receive a different construction.
and n construction so far as our ex-
perience goes. that has uniformly been
given 1t by the lower courts of the
commonwealth. Reversed.
BARTLETT V. TOWN OF CLARKs-
BURG.
Supreme Court IF Appeals West Vir-
ginia.
November 80 1898.