58 Wis. 674 | Wis. | 1883
This is' an action of replevin for-certain-personal property which the defendant claimed in his defense to hold as the bailee or custodian thereof from Elizabeth H. Carney, the wife of the plaintiff,- who was the owner thereof as her separate property under the statute. On the trial in the circuit court the said Elizabeth was allowed to testify, against the objection of the plaintiff, on behalf of the said defendant and against the plaintiff, her said husband, and the defendant obtained a verdict. On motion of the plaintiff the learned judge set aside said verdict and granted a new trial in the action, on the ground that he had erred in allowing the said Elizabeth to be a witness in the case and to testify against her said husband.
We think the second thought of the learned judge on the question was correct. The statute has made no such innovation upon the common law disability and incompetency of husband and wife to,testify for or against each other as to allow them to be witnesses in such cases, even in respect to the separate property of the wife, except in one case, viz., when they are parties to the suit. Hackett v. Bonnell, 16 Wis., 471. The courts ex necessitate have made two other
By the Court.— The order of the circuit court is affirmed.