Eastabrooks v. Prentiss

Barrett, J. It stands confessed that, as the law was prior to the act of 1858, the wife would not be a competent witness in chief upon the main issue in this case. But it is claimed that under the third category of that act, in which her disqualification as a witness is removed, she was competent, and her deposition should have been received. The language is : “ In' all matters of business transactions, where the transaction was had and conducted by such married woman as the agent of her husband.” If, by force of this provision, the wife was competent to testify, it was because what she did in the keeping of the books falls within the meaning of a “ business transaction had and conducted by her as the agent of her husband.” We understand from the exceptions that her keeping of the books consisted in her making the charges from memoranda kept by the husband from day to day. This certainly would constitute a novel kind of agency, within any meaning which that term bears, either in law or literature. She seems to have been a mere copyist, or amanuensis for her husband, in making the formal entry of charges, in business transactions had and conducted by the husband, without any participation of the wife therein. This is as far as possible from the agency contemplated by this provision of the statute. It is well understood, as the entire scope and language of the statute indicates, that the purpose of that provision was to enable proof to be made of transactions of which the husband had not personal knowledge, and the wife had, for the reason that she personally negotiated, as a substitute for, and in the place of, her husband, in such transactions. This is illustrated by the common case of purchases made by the wife at the stores, without the presence of the husband, in the usual course of shopping, as it is called, by the purchase of meats and other provisions from the butcher’s cart and grocery as current need requires, without the husband knowing either quantity, kind or price ; as well as by the various matters of business [460] which may be done by the wife, either upon special or implied authority from the husband, in his absence. As the point for decision stands upon the provision of the statute above named, the cases cited in argument do not .apply as authority or illustration. The only question is, does that provision cover this case. We think it does not; and thinking so, it would be quite as improper for us to suffer our decision to be influenced, by the appeal to our gallantry, which has been most eloquently made, as to considerations of policy or expediency. Judgment affirmed.