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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 107   View pdf image (33K)
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WILLIAMSON VS. MORTON 107
time. The direct evidence of the non-payment, is, that of Mr.
Williamson himself, and this is excepted to, upon the ground,
that as the husband of Mrs. Williamson, he is an incompetent
witness.
Authorities have been cited to show, that the general rule,
according to which neither the husband or wife, can be wit-
nesses for or against each other, does not apply to a case in
which the husband is offered to testify in favor of the wife, in
reference to her separate estate. The case of Richardson vs.
Learned, 10 Pick. Rep., 261 and 22 Pick. Rep., 253, are relied
upon in support of this exception to the rule, and certainly do
seem to sustain it.
It seems to me, however, to be extremely doubtful, whether
any such distinction is warranted by the cases establishing the
general rule, or by the policy upon which the decisions have
been founded. The case of Stein vs. Bowman, 13 Peters, 221,
affirms the general rule, and states the exception to it, and the
only exception which seems then to have been recognized,
and that is, where the husband commits an offence against the
person of his wife, when ex necessitate, the wife may make an
affidavit against her husband. And the rule according to the
language of Mr. Justice Grose in the case of The King vs. Cli-
viger, 2 Tenn. Rep. 268, which the Supreme Court appear to
quote with approbation, is founded not on the ground of in-
terest, but of policy; and as asserted by Lord Ellenborough
in Jiverson vs. Kinnard, 6 East. 192, extends to cases where
the wife was afterwards divorced from the husband, upon -the
principle, that the confidence which subsisted between them at
the time, shall not be violated, in consequence of future sepa-
ration.
I am, therefore, not prepared to say, notwithstanding the
weight which is justly due to the high authority of the Supreme
Court of Massachusetts, that the husband is a competent wit-
ness, when the case involves the separate estate of the wife; and
consequently, in examining the question whether Mrs. William-
son did, or did not receive the money, as stated in her receipt
to her husband, dated the 7th of October, 1848, I shall disre-
gard the testimony of her husband.

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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
Volume 200, Volume 2, Page 107   View pdf image (33K)
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