Hasbrouck against Vandervoort and Hayward, 9 N.Y. 153

Johnson, J. The material question in this case is whether William L. Pickering, the husband of Adeline Pickering, is a competent witness for the plaintiff, who has brought this suit as trustee of the estate of Mrs. Pickering. Sections 398, 399 of the Code of 1849, at the time of the trial, were applicable to suits begun prior to the enactment of the Code. They are: “ No person offered as a witness shall be excluded by reason of his interest in the event of the action. The last

section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignor of a thing in action assigned for the purpose of making him a witness.” These sections take away the objection on the ground of interest in the event, except in the specified cases. Assuming the witness not to be within either of the exceptions, the question remains, whether the exclusion of the husband and wife from being witnesses in each other’s favor rested upon the interest of the excluded witness in the event of the suit, or upon some other ground.

If the rule did not rest solely upon the ground of the interest of the witness in the event, then the Code has not altered the rule, and Mr. Pickering was incompetent to be a witness.

It is said in Co. ‘Litt., 6, b: “ It hath been resolved by the justices that a wife cannot be produced either against or for her husband, ‘ quia sunt dues anima, in curne una? and it might be a cause of implacable discord between the husband and wife and a means of- great inconvenience.” In Gilbert's Law of Evidence, 252, the rule is stated in more general terms, that husband and wife cannot be admitted to be witnesses for or against each other, and the grounds of the rule are stated more at large: “ If they swear for the benefit of each other they are not to be believed, because their interests are absolutely the same; and therefore, they can gain no more credit when they attest for each other than when any man attests for himself, and it would be very hard that a wife should be allowed as evidence against her husband when she cannot attest for him.

Such a law would occasion implacable divisions and quarrels, and destroy the very legal policy of marriage that has so contrived it that their interest should be one, which it could never be if husbands were permitted to destroy the interests of the wife, nor could the peace of families be well maintained, if the law admitted any attestation against husbands.” ■ In Buller’s N.

P., 286, as a branch of the rule that persons interested in the event of the suit cannot be witnesses, it is stated: “ That husband and wife cannot be admittéd to be witness for each other, because their interests are absolutely the same; nor against each other, because contrary to the legal policy of marriage.” This statement of the rule was made the foundation of an argument in Davis v.

Dinwoody (4 Term R., 678) for the competency of the husband (in an action by the trustees under his wife’s marriage settlement against a sheriff to recover the value of certain personal property taken by defendant on an execution against the husband) to prove the identity of the articles. The position taken was that the husband was not interested in the event; that the only ground on which husbands and wives are rejected when speaking for each other was that of interest, and that in the case at bar the interest was the other way.

Lord Kenton, however, said: “ Independently of the question of interest, husbands and wives are not admitted as witnesses fo'r or against each other; from their being so nearly connected they are supposed to have such a bias upon their minds that they are not to be permitted to give evidence either for or aganst each other.” Bullen, J., added: “ It is now considered as a settled principle of law that husbands and wives cannot in any case be admitted as witnesses for of against each other.” This statement of the rule by Buller, J., acquires great additional weight from the fact that he had been under the impression that the rule which forbids husband and wife to testify for each other, was founded upon interest in the event and had abandoned it as unsound.

This appears from Rex v. Cliviger (2 Term R., 263), in which the case of Bentley v. Cooke was stated by counsel to have been decided by the court on the broad ground of the impolicy of permitting husband and wife to give evidence for or against each other, and that Buller, J., doubted at first upon the ground that the husband was not interested in that case but afterwards acceded to the opinion of the court.- Grose, J., in his opinion in Rex v. Climger, says that the general rule as to husband and wife is founded not on the ground of interest but of policy, and refers to Broughton v. Harpur (Ld.

Raym., 752), as a determination in point; and, in respect to the case of Bentley v. Cooke, confirms the statement of counsel both as to the ground of the judgment and as to Mr. Justice Buller’s change of opinion. That case has been since reported (3 Doug., 422). It was assumpsit by a woman as sole, and the husband called by defendant to prove plaintiff married to witness.

Lord Mansfield in giving judgment Said“ There never has been an instance, either in a civil or criminal case, where the husband or wife has been permitted to be a witness for or against the other, except in case of necessityand Willes and Ashurst, Js., concurred. Buller, J., said: “ If this case is to be determined by the abstract general rule that the husband and wife cannot be witnesses for or against each other, the witness was certainly incompetent.

But if that rule be grounded upon the principle of interest, then I think the husband was competent.” He then considers the question of interest, and although he arrives at the conclusion that the husband had no interest, he concludes his opinion by saying: “However, if the rule is a general one, to be sure it must prevail,” and acquiesces in the judgment. The true ground of the rule is also stated in The People v. Mercein (8 Paige, 48), Burrell v. Bull (3 Sandf. Ch. R., 15), Stein v.

Bowman (13 Pet., 210-221), and in the opinion of the court below in this case"; and many of the cases upon the subj ect are there carefully considered. Upon them all it is entirely clear that the rule of exclusion of husband or wife, where the other is a party or interested in the event, depends merely upon the existence of the relation, and not at all upon the existence in the party, offered as a witness of an interest in the event independent of that which the law may attribute to him by reason of the marriage relation. (Cowen & Hill’s Notes, 150, n. 151; Barbat v. Allan, 10 Eng. L. & E. R., 596 ; Alcock v.

Alcock, 12 Eng. L. & E. R., 354.) In O’Connor v. Marjoribanks (4 M. & G., 435), the extent of the rule and the ground on which it rests are stated by Mr. J. Maulé with great distinctness: “ The text books generally give as the reason for the rule as to excluding the testimony of husband or wife, the necessity of preserving the confidence of the conjugal relation; and that may be so.

But it by no means follows that the rule is merely coextensive with the reason given in support of it; and indeed it would be very inconvenient if it were so, as the question would frequently be raised as to whether or not some particular communication or fact occurring between husband and wife was of a confidential character, which would give rise to endless embarrassment and distrust. A rule may be a very good rule, though the reason on which it is founded may not be applicable to every case which is governed by the rule.

For instance, the statute of frauds was passed to prevent, among other things, the setting up of fraudulent agreements; but if it had laid down the rule that no instrument obtained by fraud should be valid, it would have left the question in every case open to great difficulty as to whether there had been fraud or not. Instead of that a clear and simple rule is established, that tho agreement must be in writing and signed by the party to be charged therewith.

And so the policy of the law, in order to insure conjugal confidence, has laid down a definite rule, that in no case shall husband and wife be allowed to give evidence for or against each other.” It is, however, insisted that the rule of exclusion does not go further than to place both husband and wife in the same position as to admissibility, and therefore, that if, under the provisions of the Code before cited, Mrs.

Pickering herself might have been examined as a witness for her trustee, as not being a person for whose immediate benefit the suit is brought, no objection to the competency of her husband can be sustained. Without undertaking to determine whether under the trust deed in this case Mrs. Pickering is to be regarded as the person for whose immediate benefit the suit is brought, within the meaning of § 399 of the Code of 1849, I will consider how the question of Mr. Pickering’s competency will stand upon the assumption that Mrs. Pickering had been rendered competent by the effect of § 398.

The course of the argument which we have already pursued I think furnishes the answer. All that § 398 provides is, that interest in the event shall not produce incompetency. Mr. Pickering’s incompetency did not spring (as it stood at common law) from his interest in the event. The

section therefore has no application to his case. Mrs. Pickering’s position is altogether different. The only objection to her competency was interest in the event; that, upon the assumption before made, the law has removed and made her competent. But the statute has not removed her interest, and while that remains her husband cannot -be competent. Being incompetent at common law as husband, and not upon the ground of interest in the event, he must remain incompetent until some statute shall remove that ground of incompetency. Alcoclk v. Alcock (12 Eng. L. & E.

R., 354), before Vice-Chancellor Parker, is almost parallel to the case before us. The suit was by the wife against her husband. She offered her own testimony as evidence to support her own case. Before the passage of Lord Denman’s act she was subject if offered as a witness to two objections, one that she was a party, the other that she was offered to testify against her husband. That act provided that a witness should not be excluded for interest in the event, but excepted the case of parties to the record and their husbands and wives.

Then came 14 and 15 Vic., ch. 99, which repealed the exception in the former act as to parties to the record, leaving- that as to their husbands and wives untouched. The vice-chancellor said that Mrs. Alcock could not be objected to as incompetent by reason of being a party, but that her incompetency to be examined against her husband remained.

By way of illustration he puts the case of an action by a solicitor against Ms client and the solicitor tendering himself.as a witness, and says that the act would not remove the client’s right to object to his solicitor’s testifying to confidential commumcations between them. TMs exactly illustrates the case before us, if it needs illustration.

The objection to his competency is not upon the ground of interest in the event, and the statute has left it to stand as it stood before the Code. , Upon the whole case our conclusion is that the sections of the Code referred to have not touched the effect of the relation of husband and wife upon the competency of witnesses. Mr. Pickering was rightly rejected and the judgment below should be affirmed. Ruggles, J., did not hear the argument. All the other judges concurring, Judgment affirmed.