of a witness is questioned on the ground of marriage to a party or person interested, the factum of the marriage is disputed, and such marriage must be proved, to exclude the witness, or disproved, to admit him. The presumption arising from cohabitation is not enough to exclude the witness: Hill v. State, 41 Ga. 484; although presumptive proof of the marriage has been considered sufficient to render the wife an incompetent witness against the husband to disprove the marriage: Scherpf v. Szadeczky, 4 E. D. Smith (N. Y.) 110; Rose v. Niles, 1 Abb. Adm. 411.

Generally, the husband or wife is competent to prove the marriage, so as to render the other an incompetent witness: Dixon v. People, 18 Mich. 84; or to sustain the objection that the plaintiff was a married woman suing without her husband or any next friend: Willis v. Underhill, 6 How. Pr. (N. Y.) 396; contra, Bentley v. Cook, 3 Doug. 442. So, also, the wife is a competent witness, in behalf of her children, to prove the marriage between herself and her husband: Christy v. Clarke, 45 Barb. (N. Y.) 529. But a woman who claimed to be the widow of an intestate, and as such entitled to letters on his estate, was held incompetent to establish the factum of her marriage with the deceased: Redgrave v. Redgrave, 38 Md. 93; compare Fitzsimmons v. Southwick, 38 Vt. 509. Otherwise held, where the legality of her marriage with the deceased was the only question in issue: Greenawalt v. Mc Enelley, 85 Penn. St. 352.

The marriage must be a lawful one to exclude the parties to it. Lover and mistress are not incompetent witnesses by reason of the fact of their immoral cohabitation: Bathews v. Galindo, 4 Bing. 610; Flanagin v. State, 25 Ark. 92; Dennis v. Crittenden, 42 N. Y. 542. Where the validity of the marriage is in doubt the witness is generally rejected: Peats's Case, 2 Lew. C. C. 288; Wakefield's Case, Id. 279; Campbell v. Tremlow, 1 Price 81, 88, 90, 91. See, also, Divoll v. Leadbetter, 4 Pick. (Mass.) 220. The fact that the parties, in good faith, believe their marriage to be valid, does not make it so; and, its invalidity being shown, each becomes a competent witness for all purposes, even the disclosure of facts communicated by one to the other during the period they lived together, honestly supposing their relation to be that of husband and wife: Wells v. Fletcher, 2 Car. & P. 12; Wells v. Fisher, 1 M. & Rob. 99, and note. In Utah the statute excludes the wife, except where the action is between herself and her husband. A VOL. XXXIV.—46

witness was offered by a party to the suit on trial, with the statement that "she is his plural or second wife." It was held that such witness should be excluded, and the court would not try the question of the validity of the marriage, or the relations of the parties: Friel v. Wood, 1 Utah T. 160; but compare Miles v. United States, 103 U. S. 304; s. c. 2 Crim. L. Mag. 489, reversing 2 Utah T. 19.

(2.) Its duration immaterial.—At what period the marital relation had its inception is of no importance on the question of the competency of either party to that relation as a witness for or against the other. Where one party married a witness already subpoenaed by his opponent to testify on the approaching trial, she was excluded: Pedley v. Wellesley, 3 Car. & P. 558. Nor does it matter that the relation has been ended by death or judicial decree. See infra, XI., XII., XIII. In such an event, the Supreme Court of the United States has said: "It is true the husband was dead, but this does not weaken the principle. Indeed, it would seem rather to increase than lessen the force of the rule:" MCLEAN, J., in Stein v. Bowman, 13 Pet. (U. S.) 209. See, also, Patton v. Wilson, 2 Lea (Tenn.) 101. Even where the cause of action accrued to the wife before marriage, the husband was rejected as a witness Collins v. Mack, 31 Ark. 684; contra, Perry v. Whitney, 30 Vt. 390. Nor could the wife testify in such cases, the husband being a party: Smith v. Boston, &c., Rd., 44 N. H. 334; Donnelly v. Smith, 7 R. I. 12.

VII. LIMITS AND EXCEPTIONS TO THE RULE.-The rule we are examining, like all other general regulations of the common law, is subject to numerous exceptions, so called, most of them, however, being more seeming than real. Bearing in mind the object of the rule to secure the confidence of private life and prevent discord in families and that it only forbade the parties to the marriage to enter the witness-box for the purpose of testifying for or against one another, we readily see that in cases where one of the parties to the marriage was a competent witness at common law, the other was also competent; and so it was held: Wilson v. People, 5 Park. (N. Y.) 119; Seigling v. Main, 1 McMull. (S. C.) 252; Abbott v. Clark, 19 Vt. 444. But the wife may be competent where the husband is not, e. g., where he has been convicted of felony or perjury: State v. Anthony, 1 McCord (S. C.) 285.

Again, where the wife had no interest in the suit, the husband was admitted as a witness, and vice versa: Meni v. Rathbone, 21 Ind. 454; Howell v. Zerbee, 26 Id. 214; Mitchell v. Clagett, 9 Md. 42; Hall v. Murphy, 14 Tex. 637; Robinson v. Hutchinson, 31 Vt. 443. Thus, where a complaint shows the cause of action to be wholly in the husband, he is a competent witness in his own behalf, although the wife may be joined as a plaintiff: Lockwood v. Joab, 27 Ind. 423. And in some cases one spouse was deemed competent where the other was not made a party, and for that reason: Deck v. Johnson, 30 Barb. (N. Y.) 283; Leavitt v. Bangor, 41 Me. 458; Bonett v. Stowell, 37 Vt. 258. In one case found, the admission of the husband's testimony, against the objection of the wife, was held not to be error, because "he testified to nothing untrue or prejudicial to her interest:" Wade v. Powell, 31 Ga. 1; see, also, R. & B. Rd. Co. v. Lincoln, 29 Vt. 206. The fact that his testimony tends to increase a fund held in trust for his wife, will not exclude him, his interest being contingent: Dyer v. Homer, 22 Pick. (Mass.) 253; see, also, Sneckner v. Taylor, 1 Redf. (N. Y.) 427; Peiffer v. Lytle, 58 Penn. St. 386; Rose v. Blair, 1 Meigs (Tenn.) 525.

Again, the wife can be a witness to testify as to the contents of a lost trunk, the property of her husband: Illinois, &c., Rd. Co. v. Taylor, 24 Ill. 323; Same v. Copeland, Id. 332; Sassen v. Clark, 37 Ga. 242; McGill v. Rowand, 3 Penn. St. 451. And so may she in a joint suit to recover her separate property: Gee v. Lewis, 20 Ind. 149. Some cases admit the witness, because it appears that he or she, as the case may be, has no interest in the event, thus putting as the ground of incompetency interest only: Jackson v. Baird, 4 Johns. (N. Y.) 230; Town v. Needham, 3 Paige (N. Y.) 546. Where the testimony related solely to a defence peculiar to the witness, it was admitted, and the witness allowed to testify in his or her own behalf only, and not in behalf of the other spouse: Klenk v. Knoble, 37 Ark. 298; Call v. Byram, 37 Ind. 499.

VIII. COLLATERAL PROCEEDINGS. -While it was an inflexible rule that neither husband nor wife should be permitted to testify against the other, where either was directly and immediately interested in the event of the action or proceeding, whether civil or criminal, yet, in collateral proceedings not immediately affecting their mutual interest, their testimony was receivable, even though

the testimony of one tended to contradict that of the other, or might subject the other to a legal demand, or even to a criminal prosecution: Commonwealth v. Reid, 8 Phila. (Pa.) 385; s. c., 1 Pa. Leg. Gaz. Rep. 182, where the cases are fully discussed. But it is the privilege of the witness to decline to testify to such matters as will criminate the other party to the marriage.

In a comparatively early English case the rule was laid down that a husband or wife ought not to be permitted to give any evidence that may even tend to criminate the other: King v. Inhab. of Cliviger, 2 T. R. 263. This rule was much discussed in two subsequent cases in the Court of King's Bench (King v..Inhab. of All Saints, 6 Mau. & Sel. 194, and King v. Inhab. of Bathwick, 2 Barn. & Ad. 639, 647), the court, after much argument, deciding that the rule must be restricted. Lord ELLENBOROUGH remarked that the rule was laid down "somewhat too largely." In King v. Bathwick, where, the question being a female pauper's settlement, a man had been called to prove his marriage to her, another woman was held a competent witness to prove her own previous marriage with the same man; for although, if the testimony of both witnesses were true, the husband had been guilty of bigamy, yet neither the testimony given, nor any decision of the trial court. founded on that testimony, could thereafter be received in evidence to support an indictment against him for that crime; it being altogether res inter alios acta, and neither the husband nor the wife having any interest in the decision of the question. In the opinion, the court said that the rule laid down in King v. Cligiver "is undoubtedly true in the case of a direct charge and proceeding against him for any offence," but denied its correctness when applied to collateral matters. See, also, Fitch v. Hill, 11 Mass. 287; Baring v. Reeder, 1 Hen. & M. (Va.) 154, which decisions are commented on by Chief Justice PARKER, of Massachusetts, as follows: "They establish this principle, that the wife may be a witness to excuse a party sued for a supposed liability, although the effect of her testimony is to charge her husband upon the same debt, in an action afterwards to be brought against him. And the reason is, that the verdict in the action in which she testifies, cannot be used in the action against her husband; so that, although her testimony goes to show that he is chargeable, yet he cannot be prejudiced by it. And it may be observed, that, in these very cases, the husband himself would be a competent witness, if he

were willing to testify, for his evidence would be a confession against himself:" Griffin v. Brown, 2 Pick. (Mass.) 308. See, also, Vowles v. Young, 13 Ves. 144; Williams v. Johnson, 1 Str. 504, and Henman v. Dickinson, 5 Bing. 183, where, the suit being by indorsee against acceptor, and the defence fraudulent alteration by drawer after acceptance, the wife of the drawer was allowed to prove such alteration.

(To be continued.)

STEWART REPALJE.

THE EFFECT OF A RECENT DECISION ON THE LAW OF MARINE INSURANCE.1

IN The Phoenix Insurance Co. v. The Erie and Western Transportation Co., 117 U. S. 213, it was held (BRADLEY, J., dissenting,) that (1) a carrier can lawfully contract with the shipper by his bill of lading "in case of liability to have the full benefit of any insurance that may have been effected upon or on account of said goods." (2) The insurer paying the loss is deprived of the right to sue the carrier by whose negligence the cargo was lost.

The result in this case of the decision by a court of such importance as the Supreme Court of the United States on the right of a shipper to agree with his carrier to give the latter the benefit of the separate contract of the former with a third party (the insurer) would excite surprise if it was not also the conclusion of other respectable courts on the same subject.

It points out very clearly that a different train of thought is excited in the minds of underwriters and their adjusters from that of the judiciary by the presentation of the same facts; which is right and which is wrong is immaterial, for the law is on the side of the courts, even if the weight of reason is the other way. The minds of lawyers are submissive to authority and not critical. It will not, however, be thought captious to point out what other conclusions must follow from this ruling.

1 This article was received too late to append it as a note to the case to which it relates, which is reported in the May number (ante, p. 330), and which will also appear in 117 U. S. Reports 213. The article contains the dissenting opinion of Mr. Justice BRADLEY, hitherto unpublished.