Littlefield v. Rice

Hubbard, J. No case, like the one at bar, of husband and wife testifying for each other as to entries in the book of the husband, has been before this court. But a case similar in principle has occurred, and which has been the subject of judicial decision. It was the case of two partners, who were butchers, one of whom, in the instances on trial, delivered the articles, scoring them in chalk on his cart, and the other copied them from the chalk marks into their book. The court there held, that both parties might be admitted to prove the truth of the charges, the testimony being incomplete with [290] out the oath of both, not as varying the rule, but enforcing it, by allowing the introduction of the two partners to substantiate the charges. Smith v. Sanford, 12 Pick. 139. See also, Ash v. Patton, 3 S. & R. 300. Foster v. Sinkler, 1 Bay, 40. So, in the present case, it was considered on the trial, that the person who did the work could not prove the items contained in the book, without the testimony of the wife to the truth of the entries, and she was admitted to testify. The only difference in substance between the cases is, that in the case at bar the wife of the plaintiff was the witness instead of a co-partner. And we are of opinion that, the same necessity existing for the purposes of justice, the same exception to the general rule in regard to interested witnesses will apply. Stanton v. Willson, 3 Day, 37. We do not intend to decide that she would be compelled to testify against her own will, or that she could be called by the opposite party; but she is admissible as a witness, her husband consenting, to prove the entries made by her. for the same reason that the husband, if he had made them, would be admissible. Pedley v. Wellesley, 3 Car. & P. 558. A different decision has been made in Vermont, in which it was held that in an action on book account, though each party is made a witness by statute, the provision does not extend to the wife of either, and not being admitted by statute, she ought to be excluded by the general rules of law. Carr v. Cornell, 4 Verm. 116. But we do not yield to the reasoning in that case, and are of opinion that she is admissible. It is argued by the defendant’s counsel, as it was in Carr v. Cornell, that the wife may be subjected to a cross-examination, and in this manner may be brought into conflict with her husband, and thus family peace may be disturbed. It is true that such a result might ensue from her examination ; but as it would neither necessarily nor probably follow, we think the objection cannot avail. As the wife is examined, by the consent of her husband, to the single [291] fact of making the entries, and the cross-examination which she may be subjected to is under the supervision and direction of the court, the party will not be permitted, under the guise of a cross-examination, to put questions not pertinent to the issue, the tendency of which would be to create family discord. In the present case, we think her oath was properly admitted, and the exceptions are overruled.