purchased by him in the wife's presence, she assisting in their selection, she is not competent, on the ground of agency, to prove that the goods were furnished on the credit of a third person in payment of the latter's indebtedness to the husband. So, it is held, that merely sending the wife to collect payment for goods sold by the husband does not make her his agent within the rule.2 And where a wife, being requested by her husband to call into their house the indorser of a note held by the husband, asked the indorser "whether he was going to pay the note," she was held not to be the husband's agent in such a sense as to be competent to testify to admissions made to her by the indorser which would render him liable on the note without presentment, and demand of the maker.3 (4) Husband as agent of wife. The same principle by the application of which the wife is permitted to testify as to her acts done as the agent of her husband, also admits the husband as a witness for his wife, as to acts done by him as her authorized agent. Thus, he may testify as to what disposition he has made of money belonging to her separate estate. He may show what he did in her absence as well as what he did in her presence; and he may also prove the factum of his agency and its extent. But, as in the wife's case, an agency must appear; his action without her knowledge or consent will not constitute him her agent; 8 nor will the fact that he went with her when she made the bargain, and afterwards, "about the matter of pay," without more, have that effect. § 163. Effect of Consent, or Release of Interest.—(1) Consent. Upon the effect of the husband's consent that the wife be admitted as a witness against him, the authorities are not in harmony. Some of them take the ground that it is only the interest of the husband which excludes her, and inasmuch as an interested witness is competent to testify against his be interest, provided he consents to do so,10 the wife may 1 Trepp v. Barker, 78 Ill. 146. 2 Robertson v. Brost, 83 III. 116. 3 Hale v. Danforth, 40 Wis. 382. Hobby r. Wisconsin Bank, 17 Wis. 167; Haerle v. Kreihn, 65 Mo. 202; Chesley v. Chesley, 54 Mo. 347. 5 Robison v. Robison, 44 Ala. 227. Menk v. Steinfert, 39 Wis. 370. Owen . Cawley, 36 Barb. (N. Y.) 52. See also Arndt v. Harshaw, 53 Wis. 269. 8 Case v. Colter, 66 Ind. 336. 9 Waggonseller v. Rexford, 2 Ill. App. 455. 10 Supra, § 50. properly admitted to testify against her husband's interest, he consenting that she do so.1 But the better opinion seems to favor her exclusion as a witness against her husband, even though he consents; for the reason that the interest of the husband in preserving the confidence placed in her is not the only ground of the rule. The preservation of domestic tranquillity, and the diminution of temptations to commit perjury, are objects in which society at large is interested, and to admit her as a witness under such circumstance would be opposed to a sound public policy.2 (2) Release of interest. Clinging to the mistaken idea that individual interest, and not public policy, afforded the ground of the rule, several highly respectable courts have held that a conveyance by husband and wife to the wife,3 or by the husband to the wife, or by both to their children,5 of all their interest in the issue on trial, rendered them, or the one making such transfer, competent to testify in the cause, notwithstanding the existence of the marital relation. So, also, it has been decided, and with a better reason, that the wife of a sole executor of a will, who has renounced, is competent to prove its execution as a will of real estate; that the wife of one of several co-defendants in foreclosure, who suffers the bill to be taken pro confesso as against her, thereby becomes competent for the other defendants; that where the payee of a note indorses it to a third person, taking a release from liability thereon, his wife becomes competent for the holder;8 and that a wife, in the absence of her husband, who has been released from liability in the suit, is a competent witness therein. But it is difficult to perceive how these adjudica 1 Pedley v. Wellesley, 3 Car. &. P. 558. 2 See Barker v. Dixey, Cas. t. Hardw. 264; Sedgwick v. Watkins, 1 Ves. Jr. 49; Randall's Case, 5 City H. Rec. (N. Y.) 141, 153, 154; Davis v. Dinwoody, 4 T. R. 679. In California it is held, that if a wife examines her husband as a witness in her own behalf, she thereby waives her right to object to his examination by the adverse party, upon any of the issues in the action. Steinberg v. Meany, 53 Cal. 425. 3 Meredith v. Hughes, 28 Ga. 571. 4 Weems v. Weems, 19 Md. 334. 5 Meredith v. Hughes, supra. Contra, Locke v. Noland, 11 Ala. 249. 6 Daniel v. Proctor, 1 Dev. (N. C.) L. 428. But compare Huie v. O'Connell, 2 Jones (N. C.) L. 455. 7 Hadley v. Chapin, 11 Paige (N. Y.) 245. 8 Bisbing v. Graham, 14 Pa. St. 14; Armstrong v. Noble, 55 Vt. 428. 9 Peaceable v. Keep, 1 Yeates (Pa.) 576. See also Borneman v. Sidlinger, 21 Me. 185; Thomas v. Catheral, 5 Gill & J. (Md.) 23. tions can be upheld under the well-settled construction of the common-law rule, i.e., that its foundation is in public policy, and not private, individual interest. § 164. Surviving Husband. While, as we have seen, the dissolution of the marriage relation by the death of one of the parties has not the effect of removing the incompetency of the other to disclose matters protected by the rule excluding husband and wife as witnesses for or against each other;1 yet one having died, the other is competent as to anything the knowledge of which was not obtained through the privacy of the marriage relation.2 But the husband cannot testify to conversations between himself and his deceased wife; or against the interests of her estate.1 3 § 165. Widow. So, also, the widow is a competent witness as to matters in which her deceased husband was interested, unless she acquired her knowledge of the facts through confidential communications from him; 5 in which latter case she is incompetent. She may testify as to a conversation in her presence, or overheard by her, between her husband and a third person. She may prove her husband's acts, not affecting his character, or such of his business transactions as were observed by her during his life, or came to her knowledge through sources other than communications by him to her.9 1 Supra, § 154. 8 2 Wooley v. Turner, 13 Ind. 253; Haugh v. Blythe, 20 Ind. 24; Elswick v. Com., 13 Bush (Ky.) 155; English v. Cropper, 8 Id. 292. 3 Dye v. Davis, 65 Ind. 474. 4 Succession of Wade, 21 La. Ann. 343. But see Reilly v. Succession of Reilly, 28 Id. 669; Ames' Succession, 33 Id. 1317, which two cases seem to lean the other way. See also Wood 2. Broillar, 40 Iowa, 591. In New York, it was held that a tenant by the curtesy was competent for the plaintiff in an action of ejectment by the heir at law. Jack son v. Brooks, 8 Wend. (N. Y.) 426. In Maryland, that a second husband, surviving his wife, who was administratrix of the first husband, was competent for her surety in an action on the administration bond. Wallis v. Britton, 1 Har. & J. (Md.) 478. See also, generally, Ayres v. Ayres, 11 Gray (Mass.) 130; William & Mary College v. Powell, 12 Gratt. (Va.) 372. 5 Ryan v. Follansbee, 47 N. H. 100; Jackson v. Barron, 37 Id. 494; Cornell v. Vanartsdalen, 4 Pa. St. 364. 6 Lingo v. State, 29 Ga. 470; Gray v. Cole, 5 Harr. (Del.) 418. 7 Pratt v. Delaware, 17 Iowa, 307; Stuhlmuller v. Ewing, 39 Miss. 447; Mercer v. Patterson, 41 Ind. 440; Griffin v. Smith, 45 Ind. 366; Floyd v. Miller, 61 Ind. 224. 8 M'Guire v. Maloney, 1 B. Mon. (Ky.) 224. S. P., Stober v. McCarter, 4 Ohio St. 513; White v. Perry, 14 W. Va. 66. 9 Spivey v. Platon, 29 Ark. 603; Powell . Powell (Ill.), 2 N. E. Rep. 162; Short v. Tinsley, 1 Metc. (Ky.) 397; Stein . Weidman, 20 Mo. 17; 4 Thus, she may testify as to the execution, loss, and contents of a bond given to her husband; or that goods were received by the executor for which he has not accounted; 2 or that a deed of conveyance in which she joined with her husband was only intended to operate as a mortgage; or that such a deed, so executed by her, was not fraudulent under the statute of 13 Elizabeth; or that a parol gift, claimed to have been made by her husband, was, in fact, a loan;5 or that a pretended purchase from him was never consummated. She is also a competent witness in an action against her husband's administrator, for her board. She is competent for the executors when she has no interest in the result of the case.8 Where the litigation concerns the real estate of her deceased husband, she is not a competent witness where the result can either increase or reduce her dower; but if, in such a case, she is not entitled to dower, 10 or has released her right, or received her dower by consent of the heirs, 12 she is competent. 11 Gaskill v. King, 12 Ired. (N. C.) L. 424. 1 Carpenter v. Dame, 10 Ind. 125. 2 Sherwood v. Hill, 25 Mo. 391. 3 Price v. Joyner, 3 Hawks (N. C.) 418. Contra, Eckford v. Dekay, 6 Paige (N. Y.) 565. 4 Chambers v. Spencer, 5 Watts (Pa.) 404. 5 Hay v. Hay, 3 Rich. (S. C.) Eq. 384. Keys v. Baldwin, 33 Tex. 666. 7 Romans ». Hay, 12 Iowa, 270. 8 Gebhart v. Shindle, 15 S. & R. (Pa.) 237. 9 Wade v. Johnson, 5 Humph. (Tenn.) 117. S. P., Chaney v. Moore, 1 Coldw. (Tenn.) 48. But see McCullough v. McCullough, 31 Mo. 226. 19 Wallingford v. Fiske, 24 Me. 386. 11 Dobson v. Racey, 8 N. Y. 216; Gayle v. Morrissey, 5 Sneed (Tenn.) 445. 12 Morris v. Harris, 9 Gill (Md.) 19. For further decisions illustrating the status of the widow as a witness in actions wherein the estate of her husband is involved, generally, see Lay v. Lawson, 23 Ala. 377; Seabrook v. Brady, 47 Ga. 650; Peacock v. Albin, 39 Ind. 25; Fitzgerald v. Cox, Id. 84; Spaulding v. Conway, 51 Mo. 51. In actions on bills and notes, see Saunders v. Hendrix, 5 Ala. 224; Robinson v. Talmadge, 97 Mass. 171; Payne v. Devinal, 11 Sm. & M. (Miss.) 400. Actions for price of goods sold, see Dexter v. Booth, 2 Allen (Mass.) 559. In will contests, see Talbot r. Talbot, 23 N. Y. 17; Hester v. Hester, 4 Dev. (N. C.) L. 228; Brewer v. Ferguson, 11 Humph. (Tenn.) 565. Suits to set aside conveyances, see Kisling v. Shaw, 33 Cal. 425; Sanborn v. Lang, 41 Md. 107; Witthaus v. Schack, 24 Hun, 328; Bell v. Coiel, 2 Hill (S. C.) Ch. 108. Suits against husband's estate, see Powell . Powell, 10 Ala. 900; Jackson v. Delancy, 4 Cow. (N. Y.) 427. Suits in favor of husband's estate, see Johnson r. Worthy, 17 Ga. 420; Lockwood v. Mills, 39 III. 602; Deniston v. Hoagland, 67 Ill. 265; Adams v. Adams, 23 Ind. 50; Felch v. Hooper, 20 Me. 159; Walker r. Sanborn, 46 Me. 470; Megary v. Fon 1 § 166. Divorced Spouse. Nor will the dissolution of the marriage relation by judicial decree of divorce or nullity of marriage restrain the operation of the rule we are examining. As was well said by Lord Alvanley, "It never shall be endured that the confidence, which the law has created while the parties remained in the most intimate of all relations, shall be broken whenever, by the misconduct of one party, the relation has been dissolved." Thus, a wife who has been divorced from her husband continues to be incompetent to testify against him in respect to transactions which took place prior to the divorce and during coverture;2 or in his favor, in an action by him against a third person for seducing her. She cannot testify to threats made to her by her husband, to compel her signature to a conveyance alleged to be void for duress.4. Nor is she competent when the proceeding is instituted to set aside the divorce between herself and her deceased husband.5 It has been held, however, that she may be permitted, as a witness against the former husband, to prove a communication not confidential, but which it must have been intended by him at the time, that she should make known to the public. § 167. Cases of Personal Injuries. Where the ground of action is a personal injury sustained by the wife at the hands of a third person, the authorities are not in entire harmony as to the husband's competency to testify. In Georgia, the wife having been assaulted, the husband was not permitted to testify that she delayed to complain to tis, 5 Sandf. (N. Y.) 376. Ejectment suits, see Brindle r. M'Ilvaine, 10 S. & R. (Pa.) 282; Thomas r. Maddan, 50 Pa. St. 261. Foreclosure suits, see Mester e. Hauser, 94 Ill. 433; Day v. Seely, 17 Vt. 542. Partition suits, sce Wiseman e. Wiseman, 73 Ind. 112. Suits against husband's survivingpartner, see Jack v. Russey, 8 Ind. 180; Allen r. Blanchard, 9 Cow. (N. Y.) 631. Trover suits, see Tatum v. Manning, 9 Ala. 144; Baxter v. Knowles, 12 Allen (Mass.) 114. Suits for dower, or distributive share, see Shaffer v. Richardson, 27 Ind. 122; Keator v. Dimmick, 46 Barb. (N. Y.) 158. 1 Monroe v. Twistleton, Peake, Ev. App. lxxxvii (xci); Aveson v. Lord Kinnaird, 6 East, 192; Doker v. Hasler, Ry. & M. 198. 2 Barnes v. Camack, 1 Barb. (N. Y.) 392; Cook v. Grange, 18 Ohio, 526; Perry v. Randall, 83 Ind. 143. 3 Rea v. Tucker, 51 Ill. 110. But see infra, § 169. 4 Anderson v. Anderson, 9 Kan. 112. 5 Fidelity Ins. Co.'s Appeal, 93 Pa. St. 242; Peterson v. Peterson, 13 Phil. (Pa.) 82. 6 Crook v. Henry, 25 Wis. 569. See also Storms v. Storms, 3 Bush (Ky.) 77, as to the competency of a divorced husband. |