(at rehearing), said:
This ease was decided in this court on the 5th day of March, 1891, and the opinion delivered at that time was concurred in by the four judges sitting. Subsequently a rehearing was granted upon the petition of the defendant in error, John W. *700Fry, because of the importance of some of the questions involved, especially of the question as to the admissibility of the plaintiff below, the said Fry, as a witness. ■ It was not denied that if Johnson and his wife were both interested in the suit, then the interest- of each would -debar the other as a witness; and this being so, Fry, being a party of opposite interest, then their disqualification would disqualify him under our statute. But the contention is that the property out of which the alleged indebtedness of the parties grew belonged exclusively to the wife, and that, therefore, Mr. Johnson had no interest. But this contention is not sustained. The debf is claimed and sued on as a joint debt of the husband and the wife, and the result of the trial is a verdict- and judgment, with costs, against both. The suit is nowhere confined to the obligations of the wife, but is expressly and successfully prosecuted against the husband as well as the wife; and he .is clearly interested, as appears in the opinion rendered at the first decision here, and it is not necessaiw to repeat the reasons there given. But for the same reasons, after a patient rehearing and a careful consideration of the quéstions involved, and of the argument of the learned counsel for the defendant in error, - we are constrained to the same conclusion as was arrived at on the first hearing. There is but little force in the insistance that two verdicts are thus set aside when we reflect that they were rendered on an er-parte .hearing. Fry, the plaintiff, proved his case by his own testimony, whereas Johnson, the only party on the other side who had any knowledge of the controverted transactions, was excluded as a witness. A verdict of a jury, rendered upon legal testimony upon a full hearing, is entitled to great weight, which is accorded to it in all our courts; but in a case where one side only has been heard, and the result attained by illegal testimony, the result is an undue trial and judgment, which is a very different matter.
In this case the hardship on Fry is rather fancied than real. *701All of his transactions about which he testified were had with others, who are equally available if less convenient, and such an investigation is more satisfactory. If it should suit the legislative mind to provide that in such a case marriage should constitute no impediment to a full hearing of all the parties who could throw light upon these disputed transactions, such provision would be in accordance with the views of some of the profession; but on the threshold of this reflection our duties cease; we may not do otherwise than administer the law as it is enacted.
The judgment appealed from must be reversed and annulled, and the same judgment will be rendered here as was rendered at the first hearing.
.Tuikhiext reversed.