54 Tex. 451 | Tex. | 1881
Turnley brought this suit in his own right and for his own benefit, against the defendant, for the recovery of certain railroad bonds and coupons which he avers were the separate property of his wife,- for which he gave defendant an order on Horton Slaughter & Co., of Hew York, in whose possession they were, to deliver them to defendant, and which the defendant undertook to demand, to hold, and collect for
The statute of 1811 declared that there should be no exclusion of any witness in civil actions because he or she may be a party to or interested in the issue to be tried. And this statute is by its terms broad enough to include the present case. Turnley would be a competent witness unless some other cause than his interest in the suit excluded him. .It is insisted that by the common law, “from the time whereof the memory of man runneth not to the contrary,” the husband and the wife could not be witnesses for or against each other, and this, not on the ground of interest in the suit, but on the broader
There is, however, this essential difference in the cases: There Mrs. Scott was the claimant of the goods levied on. She was the actor, and the suit was to try her right to the property. Her husband was called to testify for her, and was excluded, and this court held rightly, on the ground of public policy. Mrs. Scott did not offer herself as a 'witness to support her case, and had she done so, we apprehend there would have been no impropriety or violation of public policy in permitting her to testify. Here Mrs. Turnley is not a party to the suit. ■ Turnley is asserting his own rights, claiming damages for the breach of a contract made with him. Why should he be deprived of the privilege accorded to others in like cases to testify in them own behalf ? Fairly considered, there is no expression in the case of Gee v. Scott which can be strained to support the conclusion that Turnley may not in this, case' testify for himself. It is only where the suit is brought by one, and the other is called to testify for or against him, or her, that the inhibition to testify is enforced. Any other construction of that case here contended for would involve this absurdity, that a married man could never testify in any suit in which he was a party. For it is not possible to cite a civil action by or against a married man in which his wife and her property, under our community laws, and the laws regulating marital rights, are not strictly interested. If it be for or against him for debt or the recovery of property, the result may be to increase or diminish the community, of which the wife living is the equal owner. If it be for the recovery of her separate property, for which it is bis duty to sue, or a trespass committed upon it, the result is still the same; .it is the loss or the recovery of property or effects, the rents and profits
The Revised Statutes, however, have removed all difficulty from this question. Were the rule invoked by appellee, the true rule of construction of the law as it aforetime was, these statutes might be well termed, “An act for the removal of the disabilities of married men.”
We are of opinion that the court erred in refusing to permit Turnley to testify, and for this error that the judgment should be reversed and the case remanded.
Reversed and remanded.
[Opinion delivered March 8, 1881.]