Warner v. Dyett

The Vice-Chancellor: The present petition is objected' to upon two grounds: 1st, on account of interest; and 2nd, that the policy of the law is against it. As to the first point:—This is attempted to be obviated by the release made by Joshua Dyett. Still, this may not entirely remove it. I do not mean to pass upon the effect of the instrument; but the husband is bound to support his wife; and he may, therefore, in the present case be said to have an interest in protecting the trust estate, (out of which she gets maintenance)—as this will relieve him personally from her support. But—without placing particular stress upon this point—I consider the second as sufficient. 2. The rule which does not allow the wife to be a witness against the husband, is founded upon the relationship between the parties; and the interference which such examination would cause might trench upon this relation. The law has, for wise purposes, made the rule; and it is inflexible. It has not been deviated from, save in some criminal cases where the wife makes a charge against the husband—and there from necessity. And the same may be said as to the husband's being a witness for or against the wife—besides, it might encourage perjury. The case of Davis V. Dinwoody, 4 T. R. 678, is, perhaps, the only one which need be here mentioned. It was an action by the executrix of a surviving trustee under a marriage ■settlement, to recover the value of certain goods sold by [499] the defendant, as sheriff, under an execution against the husband of the cestui que trust. There, it was held that the husband was not competent to prove, on the part of the plaintiff, that the goods had been conveyed to the plaintiff in trust for the separate use of the witness’s wife. Lord Kenyon put the decision upon the ground of the nearness of connection, which naturally existed between man and wife, whereby a strong bias might be supposed to exist. This case in point. I put my decision mainly upon this ground.—The motion must be denied.