By the Court.
There are several [120]*120important questions ruled upon Tby the referee in the trial of this case, to be considered before we reach the final question of the sufficiency of the evidence as received to support the findings and judgment.
First. Was defendant a competent witness on the trial % The referee ruled that he was, and received his testimony. The argument of the appeal brought before the court much legal research and logic in favor of, and against, the competency of the defendant as a witness, particularly as to the construction of section 1 of the act of 1867, entitled “An Act to enable husband and wife, or either of them, to be a witness for or against each other, or on behalf of any party in certain cases,” which provides as follows: “ In any trial or inquiry in any suit, action or proceeding in any court, or before any person^having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding.”
In my opinion, the letter and spirit of the statute support the ruling of the referee on this question. 1
Second. Was the defendant’s testimony in regard to the conversations between plaintiff and defendant in respect to these bills, and advances, and the payment of the same, and the state of the accounts admissible ?
The referee held that it was, and received the same.
It is held by plaintiff’s counsel that this was error.
1. That at the time the conversations occurred, they were privileged and clearly inadmissible in evidence under the law as it then stood, and that the act of 1867 should not be so construed as to give to the samé a retroactive force or effect, so that these conversations held before its passage and inadmissible then, [121]*121should become admissible since its enactment. There is much to be considered in this view of the question.
This act of 1867 is not one that can be classed or claimed as an “ ex post facto law,” prohibited by the Constitution of the United States, for, it has long been held and settled by the courts of this State, and the United States, that this prohibition applies only to laws respecting crimes and punishments, and, so far as it affects or relates to this case, this act cannot be claimed as one “impairing the obligation of contracts,” nor within any other class of laws prohibited.
I am of opinion that no law can be objected to, simply because it may be said to be retroactive in its effect, if it does not endanger or disturb vested rights, or impair the obligation of contracts, or in other respects come within constitutional prohibition.
Our State legislature, when acting within the limits of the constitution of the State of New York, and the United States, have that supreme power that Judge Blackstone ascribes to the British Parliament.
“Ithas sovereign and uncontrollable authority in the maMng, confirming, restoring, abrogating, repealing, reviving and expounding of law concerning all ' matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or commercial” (1 Black. Com., 160).
I also hold that this law is like many others in this State that, by their enactment, substantially changed the rules of practice and evidence in our courts ; yet, they have been held to extend to actions upon contracts made before their enactment, it being held that they did not impair the obligation of contracts, but had ' reference to the remedy upon them.
It is true that this act of 1867 establishes a new rule of evidence. It admits testimony that was prohibited before, and thus far affects or varies the remedy existing before.
[122]*122In like manner, section 398 of the Code establishes a new rule of evidence. It admitted, witnesses and testimony that were excluded before its enactment; and yet it has been held that this provision extended to actions on contracts that were made before the adoption of the Code (Neass v. Mercer, 15 Barb., 332).
2. It is also contended that under section 3 of the act of 1867, these conversations were inadmissible and prohibited. I am of opinion that the conversations as disclosed were not of a confidential character'; but, even if they had been, section 3 does not prohibit a voluntary disclosure. It only prohibits a compulsive disclosure. “Mo husband or wife shaE be compeEable to disclose,” &c.
I am clearly of the opinion that no error was committed by the referee in admitting the defendant to testify as a witness in his own behalf; nor in permitting him to state the conversations between himself and plaintiff in relation to these accounts.
In reviewing this case, I find that objections were duly made to the admission and the sufficiency of the testimony, on the ground that no written order or instrument in writing from plaintiff to defendant had authorized the payment of these moneys and bEls by the defendant, or authorized him to charge the same to the plaintiff, or upon her separate estate.
The members of this court are unanimous in the opinion that no order or authority in writing was necessary in this ¿ase. That it was simply a case of dealings of a principal with an agent, where the principal had the full and absolute control of the subject-matter,— namely, the estate or funds in question,—and in regard to the disposal of which the principal directed the agent:
The statute of 1848, as amended in 1849, gives to the married woman the same control over her separate estate as if she was single,—namely, absolute control.
[123]*123This case does not involve the principles and questions discussed in Yale v. Dederer (18 N. Y., 266; S. C., 22 Id., 450), and in other cases, where the liability of the married woman on a contract is discussed.
In this case there was a personal estate, a cash fund belonging absolutely to the plaintiff,' and absolutely under her control in the eye of the law.
It was placed or it reached and remained in the possession "of the defendant, her husband, with her consent, and was paid out and disposed of, in divers sums, and divers dates, in accordance with her orders, directions and requests, to him given. I think that the ordinary rules governing principal and agent must apply to the dealings between husband and wife in this case.
The statute entitled “An Act for the more effectual protection of the property of married women,” as amended in 1849, possesses one unmistakable feature, be the same considered a virtue or defect.
It withdraws all power- or control of the wife’s separate property from her husband, and vests "the same in the wife, “in the same manner and with the like effect as if she were unmarried.”
She may spend it as she lists. She may give away to whom she wish, to her husband, if she so please, or she may pay his debts with it. In fact, do with' it as she pleases.
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By the Court.
There are several [120]*120important questions ruled upon Tby the referee in the trial of this case, to be considered before we reach the final question of the sufficiency of the evidence as received to support the findings and judgment.
First. Was defendant a competent witness on the trial % The referee ruled that he was, and received his testimony. The argument of the appeal brought before the court much legal research and logic in favor of, and against, the competency of the defendant as a witness, particularly as to the construction of section 1 of the act of 1867, entitled “An Act to enable husband and wife, or either of them, to be a witness for or against each other, or on behalf of any party in certain cases,” which provides as follows: “ In any trial or inquiry in any suit, action or proceeding in any court, or before any person^having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding.”
In my opinion, the letter and spirit of the statute support the ruling of the referee on this question. 1
Second. Was the defendant’s testimony in regard to the conversations between plaintiff and defendant in respect to these bills, and advances, and the payment of the same, and the state of the accounts admissible ?
The referee held that it was, and received the same.
It is held by plaintiff’s counsel that this was error.
1. That at the time the conversations occurred, they were privileged and clearly inadmissible in evidence under the law as it then stood, and that the act of 1867 should not be so construed as to give to the samé a retroactive force or effect, so that these conversations held before its passage and inadmissible then, [121]*121should become admissible since its enactment. There is much to be considered in this view of the question.
This act of 1867 is not one that can be classed or claimed as an “ ex post facto law,” prohibited by the Constitution of the United States, for, it has long been held and settled by the courts of this State, and the United States, that this prohibition applies only to laws respecting crimes and punishments, and, so far as it affects or relates to this case, this act cannot be claimed as one “impairing the obligation of contracts,” nor within any other class of laws prohibited.
I am of opinion that no law can be objected to, simply because it may be said to be retroactive in its effect, if it does not endanger or disturb vested rights, or impair the obligation of contracts, or in other respects come within constitutional prohibition.
Our State legislature, when acting within the limits of the constitution of the State of New York, and the United States, have that supreme power that Judge Blackstone ascribes to the British Parliament.
“Ithas sovereign and uncontrollable authority in the maMng, confirming, restoring, abrogating, repealing, reviving and expounding of law concerning all ' matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or commercial” (1 Black. Com., 160).
I also hold that this law is like many others in this State that, by their enactment, substantially changed the rules of practice and evidence in our courts ; yet, they have been held to extend to actions upon contracts made before their enactment, it being held that they did not impair the obligation of contracts, but had ' reference to the remedy upon them.
It is true that this act of 1867 establishes a new rule of evidence. It admits testimony that was prohibited before, and thus far affects or varies the remedy existing before.
[122]*122In like manner, section 398 of the Code establishes a new rule of evidence. It admitted, witnesses and testimony that were excluded before its enactment; and yet it has been held that this provision extended to actions on contracts that were made before the adoption of the Code (Neass v. Mercer, 15 Barb., 332).
2. It is also contended that under section 3 of the act of 1867, these conversations were inadmissible and prohibited. I am of opinion that the conversations as disclosed were not of a confidential character'; but, even if they had been, section 3 does not prohibit a voluntary disclosure. It only prohibits a compulsive disclosure. “Mo husband or wife shaE be compeEable to disclose,” &c.
I am clearly of the opinion that no error was committed by the referee in admitting the defendant to testify as a witness in his own behalf; nor in permitting him to state the conversations between himself and plaintiff in relation to these accounts.
In reviewing this case, I find that objections were duly made to the admission and the sufficiency of the testimony, on the ground that no written order or instrument in writing from plaintiff to defendant had authorized the payment of these moneys and bEls by the defendant, or authorized him to charge the same to the plaintiff, or upon her separate estate.
The members of this court are unanimous in the opinion that no order or authority in writing was necessary in this ¿ase. That it was simply a case of dealings of a principal with an agent, where the principal had the full and absolute control of the subject-matter,— namely, the estate or funds in question,—and in regard to the disposal of which the principal directed the agent:
The statute of 1848, as amended in 1849, gives to the married woman the same control over her separate estate as if she was single,—namely, absolute control.
[123]*123This case does not involve the principles and questions discussed in Yale v. Dederer (18 N. Y., 266; S. C., 22 Id., 450), and in other cases, where the liability of the married woman on a contract is discussed.
In this case there was a personal estate, a cash fund belonging absolutely to the plaintiff,' and absolutely under her control in the eye of the law.
It was placed or it reached and remained in the possession "of the defendant, her husband, with her consent, and was paid out and disposed of, in divers sums, and divers dates, in accordance with her orders, directions and requests, to him given. I think that the ordinary rules governing principal and agent must apply to the dealings between husband and wife in this case.
The statute entitled “An Act for the more effectual protection of the property of married women,” as amended in 1849, possesses one unmistakable feature, be the same considered a virtue or defect.
It withdraws all power- or control of the wife’s separate property from her husband, and vests "the same in the wife, “in the same manner and with the like effect as if she were unmarried.”
She may spend it as she lists. She may give away to whom she wish, to her husband, if she so please, or she may pay his debts with it. In fact, do with' it as she pleases. There is no power in the courts to restrain or prevent her from the exercise of a married woman’s right under the statute, of holding or parting with her property at her will and pleasure.
She may make her husband, or any other person, agent in the care and control of the same,' on such terms, and subject to such directions, verbal or written, ¡ as she may prescribe, and, in a case like this, there is no power in the courts to prescribe any different rules for the observance of the husband as her agent, in fulfilling her directions, than the law provides for the ob-' [124]*124servance of any agent towards Ms principal, or any agent chosen, by her other than her husband.
The court holds that no written order, request or direction from the plaintiff to the defendant was necessary to authorize him to pay the plaintiff these sums of money, or to pay these different bills. That a verbal order or request was sufficient, and there being no conflict of testimony as to the fact that he paid the same in accordance with her verbal directions, the judgment should be affirmed.
.Judgment affirmed.'
Present—Monell, Jones, and Spences, JJ.