Fitch v. Hill

11 Mass. 286

Opinion

Parker, C. J.,

delivered the opinion of the Court.

The only question of any importance presented by this report is, whether Asenath Fitch, whose deposition was used in the action, although objected to, was a competent witness in the cause; and even this question has ceased to be of importance as to the present action,

Footnotes

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(a) For, since the release of her husband, as guarantor to the note, she is undoubtedly competent; and it is very questionable whether a new trial would be granted under these circumstances, even if her deposition ought to have been rejected.

But we are all of opinion that the deposition was properly admitted, she being a competent witness of the facts concerning which she testified. Her husband is not a party to [ * 288 ] * this suit. But the objection is, that he has guarantied the payment of the note, and was therefore eventually liable, and that her testimony went to make him liable, which is said to be contrary to the policy of the law. None of the authorities cited, however, support this position.

Where the husband is a party, the wife cannot be sworn, either for or against him ; not for him, because their interest is one, and she may be expected to favor him; not against him, because it would be likely to promote dissension. But where the liability of the husband is contingent, and not necessarily established by the trial, in whicli she is called as a witness, her testimony may be received. This was settled in the case of Williams vs. Johnson, (2) cited at the bar ; and the principle is recognized in a late compilation of the law of evidence. (3) The cases cited by the plaintiff’s counsel all go to show that the wife’s testimony shall not be received to criminate the husband ; and we do not question that principle of the law of evidence. (b)

Judgment according to the verdict.

Barker vs. Prentiss, 6 Mass. Rep. 430. — Parker vs. Hanson, 7 Mass. Rep 470 .— Warren vs. Merry, 3 Mass. Rep. 27.

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Strange, 504.

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Peake, 124.

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Griffin vs. Brown, 2 Pick. 304. — And see Pedley vs. Wellesly, 3 C. & P. 198. — Beveridge vs. Minter, 1 C. & P. 364.— Campbell vs. Twemlow, 1 Price, 81.— Bathews vs. Galindo, 4 Bingh. 610.