(after disposing of another question).—The justice, I think, clearly erred in rejecting both *247plaintiffs as witnesses at the trial on their own behalf. The law, as it then stood (Code, § 399), permitted any party to an action to be examined as a witness on his own behalf, except in certain instances, of which this is not one, and the fact that husbands and wives are not among the excepted cases, seems to me conclusive evidence that the Legislature did not intend to exempt them from the general rule, that no person should be excluded as a witness upon the trial of a cause, for any reason whatever, provided the case was not one of those particularly specified in section 399. (Shoemaker a. McKee, 19 How. Pr., 86; Marsh a. Potter, 30 Barb., 506.)
But whatever doubts may have heretofore existed upon this point, they have, it seems to me, been put at rest by the act of 1860, which in effect declares the intention of the Legislature not to except husbands and wives from being examined as witnesses, like other parties, except that they shall not be required to disclose any communication made by one to the other. (Laws of 1860, 187, § 12, amending Code, § 399.)
Judgment reversed.
Present, Daly, F. J., Brady and Hilton, JJ.