Hawkins v. Hatton

2 Nott & McC. 374, 11 S.C.L. 374

Opinions

The opinion of the Court was delivered by

Nott, J.

The only direct authority which I have been able to find, applicable to this case, is the case of Denn v. Joshua White and wife, 7 D. & E. 112. The Court there says, “that the wife’s confession of a trespass committed by her, cannot be given in evidence, to affect the husband, in an action in which he is answerable for the damages and costs.” Philips, 63. Lord Coke says, a wife cannot be produced against the husband, as it might be the means of implacable discord and dissention between them, and the means of great inconvenience. The reason for excluding husband and wife from giving evidence either for or against each other, is founded partly on their identity of interest, and partly on a principle of public policy, which deems it necessary to guard the security and confidence of private life, even at the risk of an occasional failure of justice. Philips, 63. It appears to me, that this case comes directly within the policy of the law. If a wife cannot be a witness against her husband, when on oath, a fortiori, her declarations ought not to be received as evidence against him. The motion must, therefore, be refused.

Johnson, Richardson and Gannt, JJ., concurred.