43 Barb. 292 | N.Y. Sup. Ct. | 1865
By the Court,
This is an action tried before Mr. Justice Lott, for an assault and battery committed by the defendant Ellen Hooper upon the plaintiff. In the progress of the trial the defendants offered Ellen, the defendant, as a witness in her own behalf. She was objected to as incompetent, by the counsel for the plaintiff. The court
The cause of action does not proceed from the husband alone, or from the husband and wife jointly, but from the wife exclusively. He is sued and made a party defendant in consequence of the marital relation, and in virtue of a rule of the common law that the wife could not be sued alone. Her coverture was always a good plea in abatement of the action, and she was not estopped or precluded by any acts or declarations of her own from availing herself of her coverture as a defense to an action when she was sued alone. In this action, therefore, she is the principal defendant. The proof must establish a separate cause of action against her, or the plaintiff can not recover judgment, and when that is established he is entitled to judgment against the husband as well as against the wife, upon the sole ground that he is her husband and she is not responsible in the action, alone,. The action, therefore, is substantially an action against her; the judgment when recovered will be against her as well as her husband, and the execution will issue against both, and may be satisfied out of the property of both or either. The question is whether she is not entitled to the benefit of the modification of the law of evidence which allows parties to become witnesses in their own behalf. Much, very much, has already been written and said upon this subject. I shall not enlarge upon it, nor stop to examine the various adjudications, for I feel myself unable to add much, if any thing, to the force of the argument already rendered. Ho thing short of an adjudication of the court of last resort will remove the ques
At the common law husband and wife were excluded from giving evidence in each other’s favor, upon two grounds : first, the general ground of interest; it being a universal rule to exclude all who had any interest in the subject of the litigation ; and second, upon the ground of policy and the necessity of preserving unimpaired the confidence of the conjugal relation. Section 398 of the code of 1849 abrogated the ground of interest, declaring that no person offered as a witness shall be excluded by reason of his interest in the event of the action. This provision was qualified by those contained in section 399. But as a general rule interest, without something more in addition, ceased to be a ground of exclusion. In the case of husband or wife offered as a witness for each other, the ground of policy and the relation between the witness and the party to the action, plaintiff or defendant, still remained, and they were still incompetent to give evidence in favor of each other. To this effect is the case of Hasbrouck v. Vandervoort and Hayward, (5 Seld. 153.) Then came the act of the 13th April, 1857, amending section 399 of the code, by declaring that “a party to an action or proceeding may be examined as a witness in his own behalf, the same as any other witness,” &c. The case of a married woman sued for a tort is certainly within the letter of this amendment. Whether she is sued alone or in connection with her husband, makes no difference; she is still a party—and as I have shown, the real and principal party— to the action, and within the letter of the statute. Ho one doubts the power of the legislature to take away the disability of a married woman to become a witness in her own behalf, and the question is one of construction, and not of power. What did the legislature intend by this amendment of the law of evidence? Did it intend by the words “a party to an action” a special or particular class of parties— parties who had .nominal or real interests—parties who were
A married woman, made a party to an action in connection with her husband, is within the spirit and reason as well as within the letter of the amendment. _ The common law, in excluding parties in interest and parties upon the record from being witnesses and giving evidence in their own behalf, proceeded upon the theory of human infirmity
There is another reason why the construction I contend for should prevail, and a party occupying the place of the defendant Ellen Hooper should be admitted to an examination in her own behalf, quite as cogent as any I have named. The principle has prevailed in the several amendments to section 399,
I have said more than I designed when I set out. The decision in Marsh v. Potter, (30 Barb. 506,) based on an able and well considered exposition of the question involved, is one which we should follow until it is reversed by the court of last resort.
There should be a new trial, with costs to abide the event.
Broom, Lott, Scrugham and J. F. Barnard, Justices.]