Donnelly v. A. D. & J. Y. Smith & Co.

By the provisions of sections 33 and 34 of chapter 187 of the Revised Statutes, persons interested are admitted *Page 14 to give evidence in any civil suit or proceeding, at law or in equity; and, with certain exceptions, parties are admitted to testify in open court in their own behalf, and are compelled either to testify or depose in behalf of the other party, as other witnesses. One of these exceptions grows out of the peculiar policy applied to the relation of husband and wife; and the 35th section of the same chapter, amongst other things, enacts, that "nothing in the preceding two sections shall render the husband or wife, either during marriage or after divorce, competent to testify for or against each other, otherwise than now by law allowed." The statute, therefore, leaves the competency of husband and wife, as witnesses for or against each other, precisely as it stood at common law.

It cannot be pretended that, at the common law, the wife could testify on the part of the husband, though he were but a nominal party to the suit, and interested only in costs; or, indeed, in any civil case in which the husband himself, as a party or on account of interest, could not testify; and it does not strengthen her title to testify in this case, that she was offered to support, by her testimony, her own claim.

It will be noticed in this connection, that the 34th section of the above chapter expressly excepts nominal parties out of the proviso inhibiting an original party to a contract or cause of action to which the other party is dead, from testifying in his own behalf; so that, if the husband be deemed but a nominal party to the case, — the chose in action, under the married woman's act, being secured to the wife, — it would seem that the statute expressly named and excluded such nominal parties, though admitted by the general terms of its exceptions.

The exception must be sustained, and a new trial ordered in the Court of Common Pleas. *Page 15