Fenner v. Lewis

Per Curiam. The principal point in this case is, whether the declarations of Mrs. Fenner, relative to the delivery of the horses, Were competent evidence. By the articles containing the covenant on which the suit is brought, the plaintiff and his wife agreed to a separation, and the defendant became a party to the agreement as her trustee. Provision was made for her maintenance and enjoyment of separate property. She was to live, thereafter, as a feme sole, and was to receive from the plaintiff, “ for her separate use, the coachee and horses which he had lately purchased.” Both parties, by the covenant, concurred in her capacity to receive these articles, and she became, for that purpose, their mutual agent. Her declaration or confession that the act was done,- became legal evidence of that fact, as a necessary consequence of her authority, under the articles, to receive the coachee and horses; for no prin_-, ciple would seem to be more clear than that the person to whom performance of an act is agreed to be made, is competent to acknowledge such performance. If she was competent to receive, she was. competent to give a receipt for them, and if her receipt would have been good evidence of the delivery, her parol admission must be equally so. The marriage union had, by the articles of separation, essentially ceased, and the law would so, far recognise such a separation, as not to hold the husband any longer liable for her support. (Baker v. Barney, 8 Johns. Rep, .72.) The policy of the rule excluding the husband and wife from being witnesses for or against each other, is founded, according to one opinion, (Lord Kenyon in 3 Term Rep. 678.) on the supposed bias arising from the marriage; and, according to another opinion, (Lord Hardwicke in Baker v. Dixie, Cases temp. Hardw. 252.) on the necessity pf preserving the peace of families. Neither pf these reasons for the rulé any longer applied here; and though the i;ule may still exist in the case to some purposes, it ought very readily to be made to yield to those cases which are exceptions to its application. Thus a wife’s declaration of what she agreed to give a nurse, was received as good evidence to charge the husband, because she was his agent in hiring the nurse. (Anon. Stra. 527.) go where the husband permits her to act for him in any 45 particular business, he adopts and is bound by her acts and admissions, and they may be given in evidence against him. (Emerson v. Blanden, 1 Esp. Rep. 142.) The defendant here agreed to be bound by her act in receiving the horses; and, of course, he is bound by her admission of the act, and the plaintiff has as good a right to avail himself of her confession as he would have of her receipt. If her act or admission be good in one case, to charge the husband in favour of a third person, because she was his agent, the rule ought equally to apply in favour of the husband, when he and a third person, by the contract between them, have mutually referred to an ant in which she was to be a party. The disposal of this point goes, in a great degree, to put an end to all the questions raised in the bill of exceptions, as they principally depend upon it. There was another point, however, on which some reliance seemed to be placed by the counsel, though we cannot perceive any force in it. This was respecting the answer given by John Robinson, a witness on the part of the defendant, to a question put to him on the part of the defendant, as to a confession of the plaintiff. There is no principle in the law of evidence better settled, than that, if you will examine as to the confession of a party, you must take the whole confession together. You cannot take part and reject part. Judgment for the plaintiff