Marsh v. Potter
New York Supreme Court
THIS was an action of slander, against husband and wife, for words uttered by the wife. On the trial the husband was offered as a witness generally in the cause, and in his own behalf. The plaintiff objected to his being sworn: 1st. On the ground that, being the husband of his co-defendant, he was not competent; and that the husband and wife could not be sworn and examined as witnesses for or against each other, in this action. 2d.
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THIS was an action of slander, against husband and wife, for words uttered by the wife. On the trial the husband was offered as a witness generally in the cause, and in his own behalf. The plaintiff objected to his being sworn: 1st. On the ground that, being the husband of his co-defendant, he was not competent; and that the husband and wife could not be sworn and examined as witnesses for or against each other, in this action. 2d. On the ground that this was a joint action, in which no separate, judgment could be rendered against either. The court sustained the objection, and held, that…
1Opinion of the CourtJames, J.
As this action was for the tort of the wife, not committed in the presence of the husband, the two were necessarily made parties to the suit. (2 Kent’s Com. 149.) If the plaintiff obtains judgment, execution may issue against both defendants, as both are judgment debtors, (Code, §§ 283, 286, 289,) and it may be satisfied out of the property of the husband, or the separate property of the wife. (Code, 289. *507Hood v. Mathews, 2 Dowl. P. C. 149. 1 Tidd’s Pr. 194, 9th ed.) If returned unsatisfied, both, or either, may be taken in execution against the body. (Code, §§ 288, 179. Pitt v. Meller, 2…
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