Allison v. Barrow

• Decision Date: 31 December 1866
• Citation: 43 Tenn. 414
• Parties: Robert Allison v. Peter Barrow.
• Court: Tennessee Supreme Court

43 Tenn. 414

Robert Allison

v.Peter Barrow.

Supreme Court of Tennessee.

December Term, 1866.

FROM BEDFORD.

This cause was brought, by appeal, from a Justice of the Peace to the Circuit Court; and, at the August Term, 1866, there was a judgment for the defendant; from which plaintiff appealed. Judge HENRY COOPER, presiding.

WM. H. WISENER, Sr., and THOS. H. COLDWELL, for Allison.

JAS. L. SCUDDER and EDMOND COOPER, for Barrow.

HAWKINS, J., delivered the opinion of the Court.

This suit was instituted before a Justice of the Peace for the County of Bedford, by Allison against Barrow, upon account. The Justice rendered a judgment, in favor of the plaintiff, for $210.02. From this judgment the defendant appealed to the Circuit Court, in which a trial was had, resulting in a verdict and judgment in favor of the defendant, for the sum of $382.20. A motion for a new trial was made and overruled, and an appeal in error prosecuted to this Court.

The facts necessary to be stated are briefly these: Upon the trial of the cause, the plaintiff proved his account against the defendant; and, thereupon, the defendant offered and read, in evidence, by way of set-off against the plaintiff's demand, a note, executed by the plaintiff to the defendant, for five hundred dollars.

Thereupon the plaintiff offered to prove by one Mrs. Winsett, that she heard the wife of the defendant say, in the presence of the defendant, that the plaintiff had paid said note.

The testimony was objected to by the defendant, and the objection was sustained by the Court, upon the ground, as it is stated in the bill of exceptions, that the statements of the wife, although made in the presence of the husband, can not be given in evidence against him. In thus totally excluding from the jury, evidence of the statements of the wife in the presence of the husband, we think His Honor, the Circuit Judge, erred.

It is conceded, in argument, that the wife can not be a witness against the husband, and that, generally, her statements, in his absence, can not be given in evidence against him.

Phillips on Ev., 31, says: “A discourse between husband and wife, in the presence of a third person, may be given in evidence against the husband, like any other conversation in which he may have been concerned.”

This question came directly before this Court, in the case of Queener vs. Morrow, 1 Coldwell, 123, in which it was held, the statements of the wife were admissible. Judge McKinney, in delivering the opinion of the Court, after quoting the rule as stated above, says: “This must necessarily be so, and the general rule, which excludes the wife from being a witness against her husband, is not infringed in its spirit, in such case.”

The object of the testimony, in this case, is to show that the defendant admitted the note had been paid. Admissions may be explicit, and solemn or implied, from the acquiescence, silence, or conduct of the party.

“The statements of the wife, in the presence of the husband, are not to be received or treated as evidence against the husband, but merely as inducement to the responsive...