Sumner v. Cooke, 51 Ala. 521

B. F. SAFFOLD, J.

The appellee sued the appellant in detinue, to recover a watch and chain, with some trinkets attached, which she gave to his wife, in pledge or pawn for fifty dollars borrowed. The defendant offered his wife as a witness for him generally, and especially to prove what contract she made with the plaintiff, and that she loaned the money as his agent. The court ruled that she was an incompetent witness in the case, because of her relationship to the defendant.

The competency of husband and wife to prove the agency of either for the other, in suits by or against them, is explicitly declared in Robison v. Robison, 44 Ala. 227, and Lang v. Water’s Adm’r, 47 Ala. 624. Section 2704 of the Revised Code relieves the incompetency, so far as affected by interest, or being a party to the suit. The only remaining disability, in civil cases, arises from the unity and confidence of their relation. It would be as wrong to make them reveal their private conversations, as admissions against interest, as it would, be to charge them with their thoughts. The line of separation between the testimony which they may or may not give, as affected by this consideration, is incapable of expression definite enough for a rule. The circumstances of each case must afford the test of admissibility, and, in almost every instance, they will give plain and correct indication.

In this case, no advantage to the defendant is shown, which, if reversed, would entitle him to object to the witness. No greater danger exists of disturbing the relation, or of biasing the testimony, than in the case of parent and child. Besides, it cannot be that truth and domestic peace are incompatible, or that they are better cherished under a suppression of testimony than as the fruits of virtue.

The judgment is reversed, and the cause remanded.

Case Details

Case Name: Sumner v. Cooke

Court Name: Supreme Court of Alabama

Date Published: Jun 15, 1874

Citation: 51 Ala. 521

Court Abbreviation: Ala.