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Opinion of the Court, per FOLGER, J.

or against each other save in very exceptional cases, deemed it requisite that the legislature should, more explicitly than it had done in those sections, express an intention to abrogate that rule, before the judiciary should declare that it was broken. The decisions were put, not upon the lack of literal force in the statute, but in a reluctance to find in the words the intent to invade a rule so ancient and so thoroughly founded. It will be perceived that in the act of 1867, there is the same if not greater literal force than in the Code; while at the same time it must be conceded that by it, at the narrowest view of it, the common-law rule is beyond dispute seriously impaired. The reason of that rule was because of an identity of interest in husband and wife, wherefore they might not be witnesses for each other; and because of the closeness of the marriage relation and its mutual and unrestrained confidences, wherefore it was against public policy that they should be witnesses against each other, for that it tended to implacable quarrels and divisions. But the reason is ignored when a wife may be called by a stranger as a witness against her husband, or by her husband against a stranger, as much as when, being a party against her husband, she is sworn in her own behalf or is called by him to his advantage.

Then as to the intent of the act. So far we have noticed only the first section of the act. If it be thought, and it seems to have been so thought by a learned court, that the language of the first section does not fully convey an intent of the legislature to permit a husband or a wife to become a witness in an action in which they are opposing parties (Minier v. Minier, 4 Lansing, 421), it will be found, I think, that the second and third sections disclose that intention more completely.

In reading the statute it will be seen that the first section declares the general purpose of the legislature in enacting it. It appears however from the other sections, that in the terms used to declare this general purpose succinctly, more was comprehended than was designed to be sanctioned as a law. The second and third sections were added therefore, to confine somewhat the scope of the terms used generally in the first

Opinion of the Court, per FOLGER, J.

tion upon

section. The third section provides that no husband or wife shall be compelled to disclose any confidential communication made by one to the other during marriage. This is a limita

the general provision of the first section, that they should be compellable to give evidence the same as any other witness, and is a saving of soinewhat of the policy of the common-law.

Then the second section makes also a limitation upon the enacting force of the first section, by providing that nothing in the act contained shall render any husband or wife competent or compellable to give evidence for or against the other in any action or proceeding instituted in consequence of adultery, or in any action or proceeding for divorce on account of adultery. Now we must concede that unless the legislature was knowingly doing a needless thing (which is not to be supposed), it had a purpose in enacting this last limitation. And it must have conceived, that by the force of the language used in the first section, a husband or a wife could give and be compelled to give evidence in an action for divorce on account of adultery. And as there can be no action for divorce on account of adultery, except it be brought by a wife against her husband or vice versa, the legislature must have conceived that the first section did enact that a wife or husband might give and might be compelled to give evidence for or against herself or himself in an action in which they two were the only parties. We can scarcely suppose that such would have been the conception of the legislature unless it had so intended.

And this interpretation is sustained by the authorities.

In 1860 (Laws of 1860, chap. 459, p. 787, § 12) the legislature amended the 399th section of the Code, so that it contained this phrase; “except that neither husband nor wife shall be required to disclose any communication made by one to the other."

It was held that this exception was a plain indication of the legislative intention to change or modify, by the section excepted from, the common-law rule as to the admissibility

Opinion of the Court, per FÓLGER, J.

of husband and wife as witnesses. (Wehrkamp v. Willett, supra; Barton v. Gledhill, 12 Abb. Pr. Rep., 246.)

Still further. Although the second section of the act of 1867 was evidently meant to be a restriction on the general effect of the first section thereof, and does not purport, further than that, to contain in itself any individual enacting force; yet it does make an exception from the restriction. It does reserve to the first section and to its enacting purpose, somewhat of that which by the full force of the restrictive terms of the second section would be taken from the first. The general restriction of the second section is, that neither the husband nor the wife shall be competent or compellable to give evidence for or against the other, in any criminal action or proceeding, nor in any action or proceeding instituted in cousequence of adultery, nor in any action or proceeding for divorce on account of adultery.

The saving from this restriction is, “except to prove the fact of marriage in case of bigamy,” and “except to prove the fact of marriage,” in action for divorce, etc. It will scarcely be contended that this excepting clause would of itself have the enacting power to enable a husband or wife to prove the fact of marriage against the other in the cases specified. The enacting power is to be found in the other part of the act. And the form and collocation of the excepting clause are indicative of the belief, and consequently of the intent of the legislature, that the first section did enact that husband and wife might testify for and against each other in behalf of themselves. If a man demise a rectory, excepting the house, saving a chamber in the house to the lessee, the chamber passes by force of the lease. (Leigh v. Shaw, Cro. Eliz., 372.) The exception makes that excepted as though it never had been let; so a saving from the exception makes it as though it had never been excepted, and then it passed by force of the lease at first. (Id.)

So with this statute. If the first section did enact, the exception in the second section saved from the enactment, and the saving from the exception kept that which was saved

Opinion of the Court, per FOLGER, J.

within the enactment. And thus is evinced the general intent of the legislature in the first section.

Such being the intent of the legislature in passing the act of 1867, the form of words used therein is, as we have seen, sufficient to make the enactment in that respect complete.

2d. The plaintiff contends, however, that the act was prospective, and could not affect this action, which had been commenced before it had passed.

The act is prospective; that is, had the defendant been sworn before its passage, it could not have looked back and have made good his testimony. But it was not confined in its operation to actions and proceedings to be commenced after its passage. It applied to them at once on its passage, so far as that, on all trials thereafter, the rule it had created was in force. “The very essence of a new law is a rule for future cases.” But not for future cases, as meaning future actions exclusively, but future occasions as well. A case is in one sense, a question contested before a court of justice.” And here the question before this referee was, shall this defendant be sworn in his own behalf against the plaintiff, his wife? It arose after the passage of the act, and the provisions of the act applied to it.

It cannot be successfully contended, as a general rule, that an act which applies only to the forms of procedure, and modes of attaining or defending rights cannot be availed of in an action pending when it took effect. (Neass v. Mercer, 15 Barb., 318; The People v. Mitchell, 45 id., 208.)

3d. On the trial of the action, the defendant having been sworn and given some testimony as a witness in his own behalf, was asked, "What did the plaintiff say, if anything, respecting the employment of Dr. Reisig, on the payment of his bill ?"

To this question the plaintiff objected, as calling for conversations between husband and wife occurring prior to the act of 1867, and not affected by the terms of that act, but which were privileged by law at the time when they were had. The question was allowed, and the plaintiff had an exception.

Opinion of the Court, per FOLGER, J.

And upon

this objection the plaintiff here makes a point, that conceding that the act empowers the defendant after its passage to be a witness in his own behalf, rules of law which are consistent with that concession, will not allow that the defendant testify to any communications from the plaintiff received prior to the passage of the act.

The act itself would exclude them if they were confidential communications. But there is nothing of the nature of confidential or privileged communications in the matters here proved. They are the common-places of business and of every-day affairs, and such as pass hourly from a principal to his agent or purse-bearer, and were the same as would have been made by the plaintiff to any other person her agent.

But the point made by the plaintiff reaches further. And it is claimed that whereas, before the act of 1867, a husband could not, nor could a wife, testify to anything which had been communicated by the one to the other while the relation of marriage existed between them; that even if it be conceded that this act enables them to be witnesses in their own behalf and against each other, yet the rule of the common law still maintains, and that they are not yet privileged to speak as witnesses of any matter derived by one from the other while they were husband and wife, and before the passage of the act.

It has been held that the restriction of the common law went to the length that no matter, confidential or otherwise, could be disclosed. (Burrell v. Bull, 3 Sandf. Ch. R., 15, citing O'Connor v. Majoribanks, 5 Scott N. R., 394. And see Phillips on Ev., 5 Am. ed., 64, margin 79.)

And it has been further held, that though death or divorce has ended the marriage relation, still the survivor cannot, nor can either of the divorced parties, thereafter speak as a witness to any communication, confidential or otherwise, received during its existence (O'Connor v. Majoribanks, supra); though a communication received or facts learned after divorce may be testified to. (Id.)

And then it is argued that the act of 1867 stands in the place of death and divorce, and does in that it permits hus

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