Anonymous , 58 Miss. 15 ( 1880 )

George, J.,

delivered the opinion of the court.

The appellee filed her bill in the Chancery Court against the appellant, seeking a divorce a vinculo, upon the “ ground of habitual, cruel, and inhuman treatment, marked by personal violence,” and also seeking the custody of the child, the only fruit of their marriage. The chancellor decided in accordance with the prayer of the bill.

The deposition of the wife was taken at great length, in which she detailed many acts of rudeness and impropriety on the part of the husband, and also testified to three distinct acts of violence to her person. The appellant objected to the whole deposition as incompetent. The chancellor sustained the objection, except as to the acts of personal violence. The action of the chancellor in allowing any part of the deposition to be used as evidence is the main question for our consideration.

The' question of the competency of husband and wife as-witnesses for and against each other has been considered in-several 'cases in this court, and in all of them since Lockhart v. Luker, 36 Miss. 68, which has been ¡expressly overruled, the court has héld that the original incompetency of parties occupying the marital relation, as witnesses for and against each' other, as it' existed at. the common law, exists now, ¿xcept ’ where it'had been clearly and plainly removed by statute. In' civil as well as criminal cases, they are now, by statute/ competent witnesses, only for each'other. In Byrd v. The State, 57 Miss. 243, the principal cases in this court were reviewed, and the conclusion reached that the wife could be examinéd as a witness against the husband only in' criminal proceedings against him for a personal injury inflicted upon her. This was the extent of her competency against the husband at comihon law. A proceeding for divorce is a civil, not a criminal suit, and is directed “to-be conducted as other suits in chancery.” Code, sect. 1773, No authority has been cited to show that the above rule of the common law, which admits the wife as a competent witness against 'the husband, lias been' extended to suits for divorce, to the extent of allowing her to prove acts of personal violence on the part of the husband. The only case cited which holds the wife to be competent in a divorce suit is Hays v. Hays, 19 Wis. 197, and that case puts her competency upon the statute of that State, and allows her to testify fully and as to all matters in controversy in the suit. The following cases reject the distinction taken by the chancellor: Woodruff v. Woodruff, 2 Fairf. 475; Quinn v. Quinn, 16 Vt. 426. And in the following cases the principle of construction of statutes in reference to the competency of husband and wife adopted by this court in Byrd v. The State, supra, was applied to divorce cases, and they were held incompetent in such suits: Dwelly v. Dwelly, 46 Me. 377 ; Manchester v. Manchester, 26 Vt. 649.

Rejecting the deposition of the wife, as we must do, the decree of the chancellor is without sufficient evidence tó support it.

The parties in this case are young and imprudent. They both seem to have unduly given,way to ebullitions of high temper. With more restraint in this respect, and with mere-consideration for the feelings and rights of each other, it is-not too much to hope that this ineffectual attempt at a final separation may lead to reconciliation and a life of usefulness- and happiness.

Decree reversed and cause remanded.

L. Brame and White & Bradshaw, counsel for the appellee,, presented a petition for a reargument of this case, but the-court refused to grant the application,'and in response to the; petition the opinion following below was delivered : —

George, J., delivered the opinion of the court.

A petition for a reargument has been filed in this case', in-which it is insisted, with great earnestness and ability, that the-conclusions reached in the opinion are erroneous. Several, additional cases from other' States have also been cited in-which it has been held that a wife is a competent witness-against the husband in a divorce suit. We have examined, these cases carefully, but do not find that they are authority against the opinion to any greater extent than they are au- ■ thority against the uniform decisions of this court since Lockhart v. Luker, on the subject of the competency of husband and wife for and against each other.

The provision in the Code of 1871, sect. 756, though-framed in different language, is in substance identical with the provision on the same subject in art. 190, p. 510, of the Code-of 1857. Both remove the disqualification of witnesses arising from interest in the suit, or in the record as an instrument of evidence; but they remove no other disqualification. Under the Code of 1857 it was fully settled, before the adoption of the Code of 1871, that the husband and wife are iucompe— tent witnesses for or against each other in civil proceeding's. To obviate this ruling, when the Code of 1871 was prepared an additional section was added providing specially that husband and wife were competent witnesses for each other in civil proceedings. Under the section removing the disqualification of witnesses on account of interest, husband and wife, under both Codes, have uniformly been held incompetent for or against each other. Under the added section of the Code of 1871 they are made competent onty for each other.

In Missouri, from which two cases are cited in the petition for a reargument, the court held that.the general statute removing the disqualification of witnesses for interest, makes husband and wife competent for and against each other; and in this the Supreme Court of that State holds differently from the rulings of this court. The statutes of Georgia and Wisconsin seem to be broad enough to make husband and wife competent for and against each other, and so does the statute of New York. In all these States, however, the ruling is not that husband and wife are competent for and against each other in divorce suits only, but in all civil proceedings. But it is well settled that they are not so competent in this State. The rulings of this court are sustained by the Supreme Court of Maine, where they have a statute on this subject nearly in the exact language of our Code of 1871.

But it is insisted that the wife is, as was held by the chancellor, competent at least to prove acts of personal violence on the part of the husband. But all the authorities we have been able to consult, except one, confine the competency of the wife, at common law, to testify against the husband, to acts of personal violence committed by him on her, when he is proceeded against criminally for such acts. We held this to be the extent of the exception in Byrd v. The State, 57 Miss. 243.

The only authority against it is The People v. Mercein, 8 Paige, 47, in which Chancellor Walworth confesses he has no authority for the conclusion reached by him. We are not -disposed to follow this isolated authority, against what we regard as the settled rule. The reason why the common law excluded husband and wife as witnesses against each other applies as strongly to divorce suits as to any other, and we feel no disposition to relax the rule in order to facilitate the granting of divorces, for which there now seem to be as many favoring agencies as are consistent with the welfare of society.