Yeager & German v. Weaver , 1870 Pa. LEXIS 383 ( 1870 )

The opinion of the court was delivered,

by Sharswood, J.

— The 1st assignment of' error is not according to the Rule VIII., 6 Harris 578. It does not quote “ the full substance of the bill of exceptions, or copy the bill in immediate connection with the specification.” It omits a very material part of the bill that the counsel objected to the evidence oflered “ as irrelevant and not the subject of damage.” We might treat the assignment as none. But the evidence was clearly relevant and the subject of damage, for it showed that the plaintiff had lost time, and been put to trouble and inconvenience, the natural consequences of the breach of contract by the defendant. No error has been assigned to any part of the charge, so that we are justified in concluding that the rule for the measure of damages, as given to the jury, was not injurious to the plaintiff in error.

The 2d assignment is, that the court erred in overruling the defendant’s motion to striké out a part of the testimony after it had been received without objection. We have invariably held that the refusal of such a motion is not the subject of a bill of exceptions. The only proper course is to request the court to instruct the jury to disregard the evidence if it was incompetent : Robinson v. Snyder, 1 Casey 203; Ashton v. Sproule, 11 Id. 492; Oswald v. Kennedy, 12 Wright 9.

The 3d assignment is, that the court erred in allowing Caroline Weaver, the wife of the plaintiff, to be sworn and to testify as a witness in the case. The Act of April 15th 1869, Pamph. L. 30, declares “ that no interest nor policy of law shall exclude a party or person from being a witness in any civil proceeding: Provided, this act shall not alter the law as now declared and practised in the courts of this Commonwealth, so as to allow husband and wife to testify against each other.” It would seem very plain, from the words of the statute, that it was the intention of the legislature that husband and wife should be competent witnesses for, but not against each other. It is objected that the title of the act is “An act allowing parties in interest to be witnesses,” and that since the adoption of the Constitutional Amendment of 1864 the title must be regarded as a necessary part of a statute. We may admit this premise. In England the title is no part of a statute. Ld. Mansfield gives as a reason for this, that “ it does not pass with the same solemnity. One reading is often sufficient:" The King v. Williams, 1 W. Bl. 93. With us, however, it is always read three times. There may be good reason for holding that the title as well as the preamble may be resorted to for the purpose of assisting the construction, whenever the enacting clause is doubtful: see Cochran v. Library Co., 25 Legal Intel. 20. But it certainly is not to overrule or control it. The people did not mean by the amendment of 1864 to require that the title should be a full index to all the contents of the law, but by declaring that each bill shall be confined to one subject, which shall be clearly expressed in the title, to prohibit the vicious practice of rolling together what were termed “ Omnibus Bills,” including sometimes more than a hundred sections on entirely different subjects, with the title of the enactment of the first section, “ and for other purposes.” When the title, therefore, speaks of parties in interest, it was cognate with the subject to extend the law to “ persons” not “ parties,” and to'those who had before been excluded on the score of policy. The contention that by the necessary subjection of the wife, when offered by the husband as a witness to cross-examination by the adverse party, she will thereby be compelled to testify against him, certainly does great credit to the ingenuity of the counsel, but it is an argument which should properly have been addressed to the legislature, not to us. When a husband offers his wife as a witness in his favor, he certainly agrees that her testimony, though unfavorable, whether it comes out on examination in chief or cross-examination, shall be accredited to the jury, and it was for the lawmakers to consider what the effect of that might be upon domestic harmony. They have said that the adverse party shall not compel her to testify against her husband, but this is the only exception in this respect which they have seen fit to make to the rule that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding..

Judgment affirmed.