Douge v. Pearce

CHILTON, J. No question is presented on the record as to the right of the plaintiff to proceed against Mrs. Pearce, the defendant, after the death of her husband. For aught that appears, she consented to the continuance of the cause against her, and submitted to the jurisdiction. But were it otherwise, without entering into an investigation of the authorities upon the subject, we are satisfied that if the tort of the wife, for which she and her husband were jointly sued, was not committed by her in his presence, or by his coercion, the suit does not abate by his death. Mr. Reeve, in his Treatise on the Domestic Relations, p. 71, in commenting upon the case in Style, 138, which was precisely analagous to this, except that the wife, after the death of the husband, and before judgment, married another husband, and in which it was held the action abated, says “it is opposed to the current of authorities,” &c. 2. The statement of the proof to be made by absent witnesses, showing the particulars of the contract, was clearly inadmissible as evidence. The issue was, not guilty. No plea of justification was in, and we cannot see how such proof could be relevant to that issue. The rule is too well [130] settled to require reference to authority, that evidence of the truth of the charge cannot be admitted, unless upon the appropriate plea of justification. The court erred in allowing such proof. 3. We are not informed upon what ground the court excluded the testimony of the witness, Black. It was certainly very material to show, that the words spoken by the defendant had reference to some judicial investigation, upon which the plaintiff was sworn as a witness. This the proof shows. It is not indispensable that the witness should give the exact language used by the defendant, showing the slanderous words had reference to a trial. If this was desired, the opposite party should, upon cross-examination, have elicited the exact language used. While it is not proper for a witness to give his impression derived from the conversation, yet he may, even in proving the words charged in the declaration, give the substance of the conversation. See Teague v. Williams, 7 Ala. Rep. 844; Miller v. Miller, 8 Johns. R. 74; Ney v. Otis, 8 Mass. Rep. 122; Olds v. Powell, 10 Ala. Rep. 393. 4. Upon the remaining point — as to the exclusion of the deposition, because it was executed by one of three commissioners, when it appeared the parties, by their attornies, appeared beforethe commissioner, and proceeded with the examination, we think the eourt also erred. Had the deposition been taken by interrogatories, filed in the ordinary way by the parties in the clerk’s office, the rule requires the commission, which is joint, should be executed by all. But in this case, the parties examine upon notice of the time and place — they appear, and each examine the witness before one commissioner. If they had intended to raise an objection to the right of one commissioner to certify the deposition, it should have been made at the time, but submitting to the examination, we must, even in the absence of the proof offered and rejected by the court, of the consent of the attornies to dispense with the other-two commissioners, intend, that the parties waived their presence. See Stebbins v. Sutton, 2 Stew. Rep. 247; Spence v. Mitchell, 9 Ala. Rep. 744. This view renders it unnecessary to examine the effect of the parol agreement of coun [131] sel, and the correctness of the decision of the circuit court, excluding the proof of it. It results from what we have said, that the judgment of the circuit court must be reversed, and the cause is remanded.