(dissenting in part). The reason underlying the rule prohibiting a married woman from testifying to the non-access of her husband at or about the time of conception for the purpose of bastardizing her child is somewhat hazy, as a perusal of the authorities referred to in the opinion will disclose. There seems an incongruity in permitting her to testify to intercourse with a strange man but prohibiting her from testifying to the non-access of her husband. But whatever may be the reason for the rule, whether it rests upon considerations of public policy, public morals, or exists for the benefit of the child, certain it is that it is *568not for the benefit or protection of the alleged father of the child, and I cannot agree that in a case of this kind he who is accused by a married woman of being the father of her child can waive her incompetency to testify to the non-access of her husband. Whatever may be said of the wisdom of the rule, it seems to be firmly intrenched in the jurisprudence of this country, and has been accorded most emphatic approval by this court. While it is difficult to answer Professor Wigmore’s caustic criticism of the rule, it probably should not be disturbed by this court. However, it is quite clear to my mind that the reason supporting the rule is inconsistent with the right or power on the part of one accused of being the father of a married woman’s alleged bastard child to waive the rule.' The rule is either for the- benefit of society or for the benefit of the child, and the considerations which prohibit the mother from testifying to the non-access of the husband equally deny to the alleged father the power to break the seal which the law has placed upon the mother’s lips by waiving her incompetency.
I therefore dissent from so much of the opinion as holds that the testimony of the mother 'to the non-access of her husband is legitimately in the case because of the failure of the defendant to object.