McDuffie v. Greenway

24 Tex. 625

• Court: Texas Supreme Court
• Decided: July 1, 1859
• Status: Published

Opinion

Roberts, J.

We are of opinion that the evidence submittéd to the jury, warranted the verdict. There are numerous objections to the rulings of the court in excluding the evidence offered by the claimant, which we think were not well taken.

The contract of marriage was not shown to be recorded in this state, so as to be admitted in evidence; nor was it proper to establish it by the testimony of the witness, having reference to a copy, instead of the original; nor was the copy so authenticated and filed, as to entitle it to be given in evidence.

The husband was not a competent witness to establish the contract, or other fact, for the wife. For although his pecuniary interest in this suit might be adverse to her’s, it is a rule, founded in sound policy, that the husband cannot, in such a case, be a witness either for or against the wife.

The court decided, as a question preliminary to the trial, that the burden of proof was on the claimant, and this was excepted to. But there are no facts shown, which lead to the conclusion that this was not done correctly, and in accordance with the statute.

The questions adverted to are of easy solution, and hardly require discussion. Judgment is affirmed.

Judgment affirmed.