Bunker v. Bennett , 103 Mass. 516 ( 1870 )

Morton, J.

The rule of the common law, that a wife is not a competent witness in a suit in which her husband is a party, remains in force in this Commonwealth, except so far as it in modified by statute. It is conceded that the plaintiff’s wife ia not a competent witness in this case, unless she is made so by the St. of 1865, c. 207, § 2. By this statute, the wife is not made a witness in cases where a transaction takes place in her presence and not in the presence of her husband, and in which she has no part, but only where “the contract or cause of action in issue and on trial was made or transacted ” with her. This action is tort for a trespass, and the cause of action is, that the defendants broke and entered the plaintiff’s dwelling-house. The allegations that the defendants used abusive language and insulted the plaintiff’s wife and daughter in law, are available merely in aggravation of damages, and do not change the cause of action. The trespass committed by the defendant occurred in the presence of the wife, but it was a transaction entirely independent of her, and in which she took no part. It cannot in any proper sense be said that the cause of action was transacted with. her. Bliss v. Franklin, 13 Allen, 244.

Exceptions sustained.