Reeves v. Herr

• Decision Date: 30 June 1871
• Citation: 1895 WL 401,59 Ill. 81
• Parties: WILLIAM REEVES, JR.v.MARTIN HERR, Executor, etc.
• Court: Illinois Supreme Court

59 Ill. 81

1895 WL 401 (Ill.)

WILLIAM REEVES, JR.

v.MARTIN HERR, Executor, etc.

Supreme Court of Illinois.

June Term, 1871.

APPEAL from the Circuit Court of St. Clair county; the Hon. JOSEPH GILLESPIE, Judge, presiding. This was an action of assumpsit, brought by Martin Herr, as executor of Adam Herr, deceased, against William Reeves, Jr. The declaration contained the usual common counts for goods, wares, etc., sold to Adam Herr, in his lifetime. To this declaration the defendant filed two pleas. First, general issue, and second, the plea of the statute of limitations. The replication asserts that the cause of action accrued within five years. Upon a trial by the court, a jury being waived, judgment was rendered for the plaintiff. The defendant appeals.

Messrs. SNYDER & DILL, for the appellant.

Mr. JOHN HINCHCLIFFE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

The principal question in this case is, whether the testimony of Catharine Herr, the widow of Adam Herr, was rightly admitted.

It is a well settled general rule, that a husband and wife, while that relation exists, can not testify for or against each other. And it is no doubt fully established by the authorities, that even after the dissolution of the marriage contract, the husband and wife are not, in general, admissible to testify against each other, as to any matters which occurred during the existence of that relation. Monroe v. Twisleton, Peak's Add. Ca. 319; Doker v. Hasler, Ry. & Mo. 198; 1 Greenlf. Ev. § 337; Stein v. Bowman, 13 Pet. 210; Babcock v. Booth, 2 Hill, 182; Neubrecht v. Santmeyer et al. 50 Ill. 75; O'Connor v. Majoribanks, 4 Man. and Gr. 435.

And it is contended, that in the latter case the wife is only excluded as a witness when she is called against her husband or his representative, and asked to disclose any fact imparted to her by her husband in the trust and confidence of that relation; and that the present case, the widow having been called for her husband's representative, does not fall within the rule. In the cases of Ratcliff v. Wales, 1 Hill, 63, and Dickerman v. Graves, 6 Cush. 308, being actions brought by a husband for criminal conversation with his wife, it was held, that the latter, after a divorce from the bonds of matrimony, was a competent witness for the husband to prove the charge laid.

In both cases, the general rule was admitted, that the husband and wife are not competent to testify against each other as to what occurred during the marriage relation, even after the marriage contract was at an end, and the cases were held not to come within the rule, as the wife was not called to testify against but in favor of the husband, and there was no violation of confidence reposed in her by the husband, for he himself called her to testify, and the fact she was offered to prove, did not come to her knowledge in consequence of the marriage relation.

These authorities favor the appellee's position, so far as they lay stress upon the fact that the wife was not called against the husband.

It is laid down in the text-books, that this rule of exclusion of husband and wife as witnesses for or against each other, is adhered to after the marriage tie has been dissolved by the death of one of the parties, or by a divorce for adultery; and the rule is so laid down generally, without restricting it to the case where they are called to testify against each other. 2 Stark. Ev. 706; 1 Greenl. Ev. § 337; 1 Phill. Ev. 75; Tyler Inf. and Cov. 323.

The exclusion of the testimony of husband or wife for each other, is more frequently put upon the ground of unity of interest, and if that were the only ground, the position of the appellee would be more tenable; but we conceive this rule of exclusion does not rest solely upon that ground, but on considerations of public policy as well.

It has been resolved, says Lord COKE, that a wife can not be produced either against or for her husband, quia sunt duæ animæ in carne una; and it might be a cause of implacable discord and dissension between the husband and the wife, and a means of great inconvenience. 1 Co. Litt. 7 a.

In 2 Kent Comm. 176, it is laid down, that “the husband and wife can not be witnesses for or against each other. This is a settled principle of law, and it is founded as well on the interest of the parties being the same, as on public policy.” See, also, 1 Greenl. Ev. § 334; Tyler Inf. and Cov. 320; Stein v. Bowman, 13 Pet. 222.

Our statute abolishing the incompetency of witnesses on the ground of interest, after enacting in the first section, that no person shall be disqualified as a witness in any civil action, suit or proceeding, except as hereinafter stated, by reason of his or her interest in the event thereof, as a party or otherwise, etc., declares in the fifth section: no husband or wife shall, by virtue of section one of this act, be rendered competent to testify for or against each other, as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage, or after its dissolution, except in certain specified cases, of which this is not one.

But if the policy of the law, as contended, excludes the wife as a witness only when called against her husband or his representative, and to prevent a violation of any confidence reposed in her by the husband, why, after the law has removed all objection to the competency of a witness on the ground of interest, should not the husband himself, in his life time, be permitted to call his wife as a...