Cobb v. Edmondson ( 1860 )

By the Court.

Lumpkin, J.,

delivering the opinion.

It was no error in the Court to substitute, upon motion, the name of the new trustee, in the place of the former trustee — Peyton L. Wade — any more than it would be one prochiem ami, or guardian ad litem, in lieu of another, which is the every-day practice. The Act of 1859 expressly authorizes it. It was the law before.

As to the second error assigned, we are clear that Mr. Powell, the husband, was not a competent witness to testify, in respect to the separate estate of his wife, although she was not the party to the record, but yet the direct beneficiary of the suit; and all the authorities concur upon this point. (1 Greenleaf. Ev., sec. 341. 1 Burr, 424; 4 F. Rep., 668; 5 Beav., 443; & Bin., 483; 2 Stark on Co., Part 1, 550, 551.) He is excluded, not so much on the score of interest and the temptation to commit perjury, but upon a great ground of public policy — the preservation of domestic peace and conjugal confidence.

For admitting the evidence of Mr. Powell, the husband, the judgment of the Circuit Court must be reversed.