§ 160. Judgment in bar need not be pleaded.

An estoppel

in pais or by deed should be specially pleaded in order to be admissible and conclusive as evidence, though where there is no opportunity to plead it it may be proved under the general denial. A former judgment, when specially pleaded in bar, will operate as an estoppel in law and be binding alike on court and jury. But it has been considered doubtful whether a judgment not pleaded as an estoppel but given in evidence under a general denial or under the general issue was binding on the jury. The weight of the decisions, however, supports the proposition that if a former judgment is relied upon and is given in evidence as determining the whole question involved in the pending action, it need not be pleaded but is conclusive as an estoppel, and so binding as a matter of law upon the jury.2

1 Outram v. Morewood, 5 East, 346; Adams v. Barnes, 17 Mass. 365; Dows v. McMichael, 6 Paige, 139; Chamberlain v. Carlisle, 26 N. H. 540; Meiss v. Gill, 44 Ohio St. 258.

2 Krekeler v. Ritter, 62 N. Y. 372; Marsh v. Pier, 4 Rawle, 288, 289; Gray v. Pingry, 17 Vt. 419; Cist v. Ziegler, 16 S. & R. 282; Preston v.

Harvey, 2 H. & Mun. 55; Shafer v. Stonebraker, 4 G. & J. 345; Betts v. Starr, 5 Conn. 550, 553; King v. Chase, 15 N. H. 9; Lawrence v. Hunt, 10 Wend. 83, 84; 1 Greenl. on Evid., § 531. Contra, Josephi v. Mady Clothing Co. (Mont., 1893), 33 Pac. Rep. 10. Cf. Dunklee v. Goodenough (Vt., 1893), 26 Atl. Rep. 988.

§ 165. Foundation of the doctrine.- Public policy, the welfare of the whole community, and indeed the best interests of the litigant parties themselves, demand that certain evidence, or rather the evidence of certain witnesses, shall be absolutely inadmissible, because any advantage which might be gained in the particular case in ascertaining the truth would be more than counterbalanced by the injury to society as a whole. This restriction upon the capacity of certain classes of witnesses as regards the evidence which they will be permitted to give is not based upon any peculiar respect which the law has for their calling or character. Its design is to advance the pure and unembarrassed administration of law, subserve justice and to protect the innocent while punishing the guilty.'

1 "The principle of the rule which applies to attorneys and counsel is that so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its minis

ters and exponents, both in ascertaining their rights in the country and maintaining them most safely in courts, without publishing those facts which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate to enable him successfully to perform the duties of his office, that the law has

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§ 166. Husband and wife, when competent witnesses.- A husband or wife was not at common law (with a few exceptions) a competent witness for or against each other in any action to which the other was a party or had any pecuniary interest. The absolute prohibition thus placed upon the husband and wife was largely the logical result of the legal identity of the parties to the marriage. The rule that the party was not a competent witness for or against himself required the exclusion of the testimony of another person who was simply the alter ego of the party and equally concerned in the suit. It was considered also that to permit a husband or wife to testify for the other would put a premium on perjury, while, if either were to be recognized as a competent witness against the other, the harmony between them and the unbounded confidence properly accompanying the marriage relation would be imperiled.3

So far as the rule was intended to protect confidential communications between husband and wife, it was analogous to the rule which at common law affixed a privileged character

considered it the wisest policy to encourage and sustain the confidence by requiring that on such facts the mouth of the attorney should be forever closed." Chief Justice Shaw, in Hatton v. Robinson, 14 Pick. 422.

11 Greenl. on Evid., § 334; Bank v. Mandeville, 1 Cranch, 575; Gilleland v. Martin, 3 McLean, 490; Farrell v. Ladwell, 21 Wis. 182; Pryor v. Roburn, 16 Ark. 671; Moore v. McKee, 13 Miss. 238; Wilson v. Sheppard, 28 Ala. 623; Dawley v. Ayers, 23 Cal. 108; Manchester v. Manchester, 24 Vt. 649; Kemp v. Donhan, 5 Har. (Del.) 417; Cameron v. Fay, 55 Tex. 38; Waddams v. Humphreys, 22 Ill. 661; Karney v. Paisley, 13 Iowa, 89; Smead v. Williamson, 16 B. Mon. (Ky.) 492; Gee v. Scott, 48 Tex. 510; Kyle v. Frost, 29 Ind. 398; Keaton v. McGivier, 24 Ga. 217; Tully v. Alexander, 11 La. Ann. 628; State v. Armstrong, 4 Minn. 335; Tomlinson v. Lynch, 32 Mo. 160; Kelly v. Proc

tor, 41 N. H. 139; Rice v. Keith, 63 N. C. 319; Den v. Johnson, 18 N. J. L 87; Bird v. Husten, 10 Ohio St. 418; Donnelly v. Smith, 7 R. L. 12; Gross v. Reddy, 45 Pa. St. 406; Footman v. Prendergass, 2 Strob. Eq. (S. C.) 317.

2 Turner v. State, 50 Miss. 351, 354. 3 Lucas v. Brooks, 18 Wall. (U. S.) 436, 452; In re Alcock, 12 Eng. L. & Eq. 354, 355; Stapleton v. Crofts, 18 Ad. & E. 367, 369; Tully v. Alexander, 11 La. Ann. 628; Mitchinson v. Cross, 58 Ill. 366, 369; In re Dwelly, 46 Me. 477, 480; Blake v. Graves, 18 Iowa, 312, 317; Bradford v. Williams, 2 Md. Ch. 1; Turner v. State, 50 Miss. 351; Den v. Johnson, 18 N. J. L. 87, 98; Marsh v. Potter, 30 Barb. (N. Y.) 506; Gibson v. Com., 87 Pa. St. 253; State v. Workman, 15 S. C. 540, 546; Cram v. Cram, 33 Vt. 15, 40; Dunlap v. Hearn, 37 Miss. 471, 474; Bowman v. Patrick, 32 Fed. Rep. 368.

to the communications between client and attorney, and which, by statute, now regulates the relation of priest and penitent or physician and patient. Thus it is said that the incompetency of the husband or wife to testify for or against the other in a criminal prosecution arose, not from any identity of interest, but solely from principles of public policy growing out of respect for the confidential nature of the marital relation.

When, therefore, the interest of justice demanded that the mouth of the husband or wife should be opened, as in prosecutions of either for a crime committed on the other, an exception was recognized from the necessity of the case, and the husband or wife was competent.3

A woman against whose husband an indictment has been found may testify for the state on the trial of another person for the crime; and the same rule has been applied where the husband was tried jointly with another, though it is the duty of the jury to consider her testimony only so far as it applies to the other defendant."

§ 167. Statutory legislation - Confidential communications. The competency of a wife or husband as a witness

1 Turpin v. State, 55 Md. 477; Stein v. Bowman, 13 Pet. (U. S.) 223; Turner v. State, 50 Miss. 351; In re Randall, 5 City Hall Rec. 141, 153; United States v. Jones, 32 Fed. Rep. 569; State v. Wright, 41 La. Ann. 600; Hussey v. State, 87 Ala. 121; Ex parte Hendrickson (Utah, 1889), 21 Pac. Rep. 396; Johnson v. State, 27 Tex. App. 135; State v. Adams, 40 La. Ann. 213.

2 Bramlette v. State, 21 Tex. App. 611; 2 S. W. Rep. 875; People v. Sebring, 66 Mich. 705; 33 N. W. Rep. 808. In a trial of the husband for bigamy, his letters to his lawful wife are inadmissible (State v. Ulrich, 110 Mo. 350; Com. v. Caponi, 155 Mass. 534; Bassett v. United States, 137 U. S. 496), though it is held elsewhere that she is herself competent as a witness. United States v. Cutler, 19 Pac. Rep. 145; 5 Utah, 608.

3 Stein v. Bowman, 13 Pet. 221; 1 Bl. Com. 413; Bentley v. Cooke, 3 Doug. (Eng.) 422; Whipp v. State, 34 Ohio St. 87, 89; State v. Neil, 6 Ala. 685; State v. Parrott, 79 N. C. 615; People v. Chegaray, 18 Wend. (N. Y.) 642; Goodwin v. State, 60 Ga. 509; State v. Bennett, 31 Iowa, 24; State v. Dyer, 59 Me. 503; Turner v. State, 50 Miss. 351, 354. A wife's dying declarations are admissible on a trial of her husband for her murder. State v. Belcher, 13 S. C. 459; Rex v. Woodcock, 2 Leach, 563; People v. Green, 1 Denio (N. Y.), 614; People v. Murphy, 45 Cal. 143.

4 State v. Rainsbarger, 71 Iowa, 746; 31 N. W. Rep. 865; State v. Wright, 41 La. Ann. 600.

5 State v. Adams, 40 La. Ann. 213; 3 S. Rep. 733.

for or against the other is to a large degree, if not altogether, regulated by statutes in the United States. These differ somewhat in details and should be consulted in every instance where this question arises. The general effect of this legisla tion has been to render the husband or wife competent as a witness for or against the other by removing any disqualification that either may have been under on account of the common-law merger of the legal personality of the wife into that of the husband because of the incompetency of a party to be a witness. In civil cases, therefore, a husband or wife is a competent witness for or against the other to the same extent and with the same effect as any other person, with the exception (and this exception is recognized in all the states which have legislated upon this subject) that neither can be permitted to disclose confidential communications which passed between them during coverture. But statutes merely intended to render interested persons competent as witnesses do not affect the competency of husband and wife, as their incompetency is founded on other grounds than interest.2

The common-law incompetency of the husband or wife as a witness in the prosecution of either for a crime committed against a third party is confirmed by statute in many states; ' and where the statute in general terms declares that husbands and wives are competent and compellable to give evidence, it has been held to apply only to civil suits and never to criminal proceedings. The credibility of a husband or wife who

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1 Collins v. Mack, 31 Ark. 684; v. State (Tex., 1889), 11 S. W. Rep. Watkins v. Turner, 34 Ark. 663; 667; Lowther v. State, 4 Ohio Cir. Spitz's Estate, 56 Conn. 185; Beit- Ct. R. 522. This privilege may be man v. Hopkins, 109 Ind. 178; Park- claimed by the defendant instead of hurst v. Berdell, 110 N. Y. 386; by the witness. People v. Wood, 126 Warren v. Press Pub. Co., 132 id. N. Y. 249; 27 N. E. Rep. 362. 181; Nilan v. Kalish (Neb., 1893), 55 4 Turpin v. State, 55 Md. 462, 478; N. W. Rep. 295; Briggs v. Briggs Wilke v. People, 53 N. Y. 525; Steen (R. I., 1893), 26 Atl. Rẹp. 198; Beale v. State, 20 Ohio St. 333. Cf. People v. Brown, 6 Mackey, 574. v. Murphy, 45 Cal. 143; Miner v. People. 58 Ill. App. 59; State v. Sloan, 55 Iowa, 217. The statutory provisions of the several states regulating the competency of a husband and wife as witnesses for or against each other are cited, and the subject of

2 Turpin v. State, 55 Md. 462, 477. 3 State v. McCord, 8 Kan. 161; United States v. Bassett, 5 Utah, 131; 13 Pac. Rep. 237; Meriwether v. State, 81 Ala. 74; 1 S. Rep. 560; Stickney v. Stickney, 131 U. S. 227; Johnson