Martin v. Rutt

Opinion, Mr. Justice Green: Tlio only assignment of error in this ease, which has any merit, is the fifth. The testimony admitted under that assignment consisted of certain declarations of the husband, D. G. Martin. They were offered by the defendant in the issue against the title of Martin’s wife who was the plaintiff. The husband was not even a nominal party to the record. The wife was not present when the declarations were made, and they were not part of the res gesta) of the transaction to which they related. They were inadmissible upon any theory. As declarations, they were secondary only, not being the declarations of the plaintiff herself. As the declarations of an agent, they were incompetent because they were not part of the res gestee. But they were fatally incompetent for the entirely independent reason that they were the declarations of a husband offered against his wife. It is enough to know that the law does not permit the direct testimony of the husband against his wife, and as a matter of course it cannot permit his indirect testimony in the form of declarations adverse to her interest. The very point was decided in Burrell Tp. v. Uncapher, 117 Pa. 353, where we held the husband’s declarations to be inadmissible although he was a party to the record. We said: ‘‘He is a ib: mal and not a real party, and as the purpose of the offer was to elicit from him testimony adverse to the claim of his wife, he must be regarded as incompetent to deliver such testimony. “ The same is true as to declarations made by him. They could not be given in evidence against his wife.” Neither the theory of a conspiracy, nor the fact that the husband w^as the defendant in the execution under which the goods were sold, helps the question in the least degree. It is still [384] the testimony of the husband against the wife, and is interdicted. The fifth assignment of error is sustained and on that the judgment is reversed. The other assignments have no merit. As a matter of course Rutt’s judgment against D. G. Martin was admissible, as it was tbe foundation of bis execution process under which he claimed title. The internal revenue certificate to A. M. Martin in 1876, was altogether too remote and irrelevant to be admitted. Whether the goods in question were the property of Lydia R. Martin was no doubt the true issue of the cause, hut as the defendant alleged they were the property of her husband, D. G. Martin, and evidence was given in support of that proposition, it was certainly not error in the court to'say to the jury that the question was whether they were David G. Martin’s, the debtor’s, or whether they were Lydia Martin’s. Judgment reversed and new venire awarded.