Pleasanton v. Nutt

Mr. Justice Sterrett delivered the opinion of the court, February 7th, 1887. In one of her .special pleas, defendant below averred that certain specified articles of furniture, .etc., in controversy, were her property, purchased by her from Alexander W. Nutt, who at the time of said purchase was the husband of plaintiff below and the then lawful owner of said property. Without denying the purchase as alleged in the plea, plaintiff replied that said furniture was not at said time etc., the property of said Alexander W. Nutt, but was the property of said plaintiff, as in her declaration mentioned. One of the issues of fact thus raised by the pleadings was whether the furniture in controversy was the property of plaintiff or that of her husband, at the time he sold the same to defendant below. To maintain the issue on her part, plaintiff was called as a witness, and under, objection and exception testified in substance that her husband, Alexander W. Nutt, purchased the furniture and gave it to her. It is alleged there was error in thus permitting her to testify; and we think there was. She was incompetent to thus prove title in hersélf, because in so doing she was testifying against the interest of her husband. While he was not a party to the record, he was nevertheless interested in the result, in that his wife’s testimony, to the effect that the furniture was not his but hers, at the time he sold it to defendant below, tended to make him liable for breach of his implied warranty of title in the sale of the furniture as his own. The Act of 1869, declaring “ that no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding,” contains the proviso that it “ shall not alter the law as now declared and practiced in the courts of this Commonwealth so as to allow husband and wife to testify against each other.” If she had testified without objection, and in the course of her examination her incompetency had been disclosed, defendant would have had the right to demand that her testimony be stricken out; but, being advised of her incompetency to testify against her husband, by the pleadings, it was his duty to object, as he did, in limine. The court therefore erred in permitting plaintiff below to testify, and hence the second specification is sustained. The husband of Mrs. Nutt was not a competent witness to. testify that he and not his wife owned the furniture at the time he sold it to defendant below, and hence he was rightly excluded by the rule which should have prevented his wife from testifying in support of the issue of fact presented by the .pleading. Plaintiff in error was not prejudiced by the ruling CQm [270] plained of in the first specification, and hence she has no just reason to complain. Judgment reversed and a venire facias de novo awarded.