Woolley v. Turner

__ .1 —This This was an action by Turner against Woolley upon account, the items of which were filed with the complaint, and are as follows: Cincinnati, October 11, 1854. Thomas Woolley to Samuel Turner, Dr.: To boarding Catherine Woolley, the wife of said Thomas Woolley, 51 weeks from the 11th October-, 1853, to date, at 3 dollars per week....... $153 00 To fuel and lights 20 weeks, at 50 cents per week 10 00 To cash paid for medicines for her............. 20 00 To money paid her during said time, and for medicines..........................'......... 65 00 Whole amount....................... $248 00 Proper issues having been made, the cause was submitted to a jury, who found for the plaintiff; and the Court, having refused a new trial, rendered judgment on the verdict, &c. The record contains a bill of exceptions, which shows that the plaintiff, in support of the issue on his part, offered to read in evidence to the jury the deposition of said Catherine Woolley, to the introduction of which the defendant objected, on the ground that she was, at the time the account for boarding, &c., accrued, his wife, and, for aught that appeared, the relation of husband and wife still existed between them-; but the objection was overruled, and the deposition admitted, &c. We have a statutory rule of practice which says: “ Husband and wife are incompetent witnesses for and against [254] each other; and they can not disclose any communication from one to the other, made during the existence of the marriage relation, whether called as a witness while that relation exists or afterwards.” 2 R. S. p. 82, § 240. D. M’Donald and A. G. Porter, for the appellant. As we construe this rule, the husband and wife are incompetent witnesses for or against each other while the marriage relation exists; but that after it ceases to exist, they are competent as witnesses for or against each other, to testify to anything that came under their observation, the knowledge of which was not obtained through the privacy of the marriage relation. Jack v. Russey, 8 Ind. R. 180, note 1. In this case, the bill of .exceptions avers that the proposed evidence was resisted on the ground that the witness was, at the time the account sued on accrued, the defendant’s wife. Hérice we must intend that the ground thus assumed was true; and, in the absence of contrary proof, presume that the relation of husband and wife continued to exist between them'when she made her deposition. And this being the case, the deposition should have been excluded, because, as has been seen, husband and wife are incompetent witnesses for or against each other in any case, while that relation exists. 1 Greenl. Ev., §§ 336, 337. Per Curiam. The judgment is reversed with costs. Cause remanded, &c.