84 Mass. 559 | Mass. | 1861
This being an action against an executor to recover the price of goods purchased by the testator’s wife, and delivered to her, some of which it is conceded were not necessaries, the plaintiff was allowed to prove by the testimony of the widow that after the purchase the husband ratified it in a private conversation with her. The question is now raised, whether she was a competent witness to prove such a conversation. It is admitted that, at common law, she is excluded on considerations of policy from testifying to confidential conversations between herself and her husband, and that the exclusion remains unaffected by his death. The question is, whether this
Our legislature has by statute extended the competency of witnesses as far as it was deemed safe to do so; and where it. makes husbands and wives admissible, it provides that “ they shall not be allowed to testify as to private conversations with each other.” This includes conversations on subjects which are not confidential in their nature; and adopts the doctrine of O’ Connor v. Marjoribanks. Gen. Sts. c. 131, § 14. The present case does not belong to the particular class provided for by § 16, namely, actions against the husband growing out of a wrong or injury done by him to the wife, or his neglect to furnish her with the proper means of support. The section does not, by its terms, include actions brought after his death against his executor or administrator; and probably the reason of the distinction is, that in actions against himself he may protect his interests by his own testimony.
As she should not have been allowed to testify to her private conversation with her husband, the verdict for the plaintiff must be set aside. But as to any other facts, she was a competent witness. The cross-examination of her, however, by which the defendant sought to show that, at the time she made the purchases of the plaintiff, she made extravagant purchases of jewelry and gold watches of other persons, related to irrelevant matter. For if the fact were true, it ought not to affect the plaintiff’s claim. The judge rightly excluded it.
The plaintiff’s account book, with his suppletory oath, was properly admitted for the limited purpose of proving the charges
Exceptions sustained.