
    SOUTHWICK against SOUTHWICK.
    
      New York Superior Court, General Term;
    
    
      January, 1870.
    Witness.—Husband and Wife.—Evidence of Communications. —Husband as Agent of Wife.— Mabbied Woman’s Act.
    Section 1 of the act of 1867 (3 Laws of 1867, p. 3331, ch. 887),—which enables the husband or wife of any party to an action to testify,— 'applies to actions between husband and wife, with the exceptions of divorce, &c. specified in the statute.
    In an action by a wife against her husband, to recover moneys by him received as her agent, the husband, when called as a witness on his own behalf, may testify to business communications between them.
    The act referred to is not restricted to testimony relating to matters occurring subsequent to its enactment.
    Section 3 of the act does not prohibit a vofomtary disclosure of communications between husband and wife, but only a compulsory disclosure.
    Hence in an action by a wife against her husband, to recover moneys alleged to have been received by him as her agent, he may be permitted to testify on his own behalf, and to" state the conversations between himself and the plaintiff in relation to the transactions in question.
    The married woman’s act of 1848, as amended in 1849, gives to the married woman the same control over her separate estate as if she were single, and hence a written authority from her to her husband is not necessary in order to authorize him, when employed as her agent, to charge the payment of moneys upon her separate estate, or to pay moneys out of her separate estate.
    
    Appeal from a judgment.
    
      This action was brought by Louise C. Southwick, plaintiff and appellant, against Greorge W. Southwick, defendant and respondent, and came before the court on appeal from a judgment entered upon the report of Joseph Meeks, Esq., referee, to whom this cause was referred on the consent of the parties.
    The plaintiff claims to recover from the defendant the sum of five thousand one hundred and eighteen dollars and ninety-eight cents, and interest from June 22, 1866, for an alleged balance of moneys collected and received by the defendant as her agent, from the executors of the last will and testament of the plaintiff’s father (the late Mangle M. Quackenboss).. Plaintiff alleges that defendant so received as snch agent, sums of money which amounted in the aggregate, on June 22, 1866, to the sum of fourteen thousand four hundred and forty-eight dollars and twenty-four cents, of which there remained due to plaintiff the said sum of five thousand one hundred and eighteen dollars and ninety-eight cents.
    Although the defendant in his answer denied the agency, and the reception of any moneys as such agent, yet he subsequently stated facts that substantially established the relation of principal and agent.
    He alleged that he was the husband of the plaintiff, and one of the executors of the last will and testament of her late father.
    That the said executors made large payments to the plaintiff. That after such payments the plaintiff “handed to this defendant as her husband, and he had charge and custody of, the various sums of money derived by the plaintiff.from the estate of said Quackenboss, being portions of the share of said plaintiff,” amounting to the aggregate' sum of thirteen thousand nine hundred and thirty-two dollars and twenty-four cents, and no more.
    And defendant alleges that he has paid to, and paid, laid out and expended for the plaintiff’s use, and at her request, from said moneys, sums amounting in the aggregate to fourteen thousand and sixty-eight dollars and seventy-nine cents.
    He denies that there is any sum of money due from him to plaintiff, but claims she owes him the sum of one hundred and thirty-six dollars and fifty-five cents, for which, with interest (as a counter-claim), defendant claims judgment against plaintiff.
    (Defendant also sets up another counter-claim in the answer, but as no evidence was given in relation to the same, it requires no consideration.)
    The reply denies all the allegations of the answer.
    The action was tried before a referee, in April, 1869.
    By the will of the late Mangle M. Quackenboss, and the proceedings on the probate thereof, and in the administration of the estate (all of which was received in evidence before the referee without objection), it appeared that the plaintiff, and her two sisters and a sister-in-law, were the residuary legatees and devisees of the estate.
    The fifth article of the will provided that the share of the estate given to each daughter “shall be taken and held by her in her own right, and subject to her own separate disposition, without being in any manner liable for the debts or liability of her husband, or subject in any maimer to his control, or disposition.”
    The defendant, and one John M. Quackenboss, were named as executors, and qualified as such.
    The inventory and appraisement of the personal estate amounted to fifty thousand and twenty-one dollars and seven cents, but a statement of the appraisers, attached thereto, was to the effect that it was subject to mortgages exceeding its value.
    Beyond this inventory, no evidence appears as to the amount of the property of the estate received by the executors, or the amount belonging to plaintiff.
    The plaintiff also introduced in evidence, without objection, two written documents. The-first was a formal power of attorney, dated April 16, 1864, authorizing the defendant, as plaintiff’s attorney, “to ask, demand, and recover and receive ” all and any sums of money or other property then or thereafter to become due, payable, &c., from the estate to the plaintiff.
    The other document was an indemnity bond, dated April 10, 1865, whereby the plaintiff formally covenanted to indemnify and save harmless, the defendant and JohnM. Quackenboss, the executors of her father’s estate, from all loss and damage that might arise to them because of past or future payments by them to her from the estate, &c.
    The first instrument was executed by the plaintiff personally, and the latter instrument was executed by the defendant as the attorney of the plaintiff, and was so admitted.
    It was then admitted by defendant that plaintiff had,'prior to the commencement of this action, duly demanded of defendant the amount claimed by plaintiff in this action.
    After the introduction of this evidence, the plaintiff rested her case. At this stage of the trial there was no evidence of any sum or sums of money due or owing from the defendant to the plaintiff except the admissions of the defendant in the first part of his answer, as to the amount he had received from the plaintiff (thirteen thousand nine hundred and thirty-two dollars and twenty-four cents), which was followed by -the subsequent allegations of payment of a greater sum, and denial of any indebtedness, and of a counter-claim.
    Without moving for a nonsuit or the. dismissal of the complaint, the defendant called George W. Southwick, the defendant, as a witness in his own behalf. The plaintiff objected to Ms competency, on the ground that he was the husband of the plaintiff (wMch fact was admitted). The referee overruled the objection, to which ruling plaintiff duly excepted, and the defendant was admitted tó testify.
    The defendant’s testimony was substantially as follows :—
    That he was the husband of plaintiff, and that he had received on account of plaintiff’s 'interest in her father’s estate, divers sums, from January 25, 1865, to March 12, 1866, amounting in the aggregate to fourteen thousand four hundred and forty-eight dollars and twenty-four cents.
    It was then admitted by plaintiff that she had received payments from this amount from defendant (in divers sums, and at dates stated in an account contained in the case on appeal), amounting in the aggregate to the sum of nine thousand tMee hundred and twenty-nine dollars and twenty-six cents. (This admission left only the sum of five thousand one hundred and eighteen dollars and ninety-eight cents contested).
    • The defendant testified that he had paid one Dr. Reisig for medical attendance upon plaintiff, and by the request and direction of plaintiff, the sum of six hundred and thirty-nine dollars, in two bills — one of January, 1865, of two hundred and sixty-six dollars, • and another of January, 1866, of three hundred and eighty-three dollars. That these bills so paid were sent to Ms house, and had been made out in the name of the defendant.
    Defendant also testified that, at the request of plaintiff, he had paid to her divers sums of money, at sundry dates, including January 25, 1865, and April 7, 1866, the amount of which cash payments (as appeared from the statements of defendant or detailed account in the case) was three thousand five hundred and eighty dollars.
    
      That he had also paid at her request sundry bills for merchandise purchased by the plaintiff, amounting to the sum of eight hundred and sixty-four dollars and ninety-eight cents. That he had paid for the plaintiff, at her request, the- sum of thirty-five dollars, for concert and church bills. That several times, at her request, he had given plaintiff a statement as to how the account stood, to which she made no objections. The last statement made to her was about April 11, 1866. That the money was paid to her and the bills paid for her, upon Tier verbal orders, directions, or requests.
    That he never received any order, direction, or request in writing from the plaintiff, to pay her these moneys, or to pay these bills for her ; nor any order in writing authorizing him to charge the same against her separate estate.
    All the testimony of the defendant in regard to the subject matter, and conversations between himself and plaintiff in regard to the moneys and bills paid, were objected to oh the ground of incompetency, because the witness was the husband of plaintiff, or the conversa-' tions having been between husband and wife, must be regarded as confidential and prohibited, and should be excluded.
    The referee overruled the objection, and the plaintiff objected to the ruling.
    Upon the testimony as received by the referee, and the findings of the referee, judgment was entered for the defendant, for his costs against the plaintiff, from which judgment plaintiff appealed to the general term of this court.
    
      Elbridge T. Gerry, for the plaintiff, appellant.
    I. The referee committed a fatal error at the outset of the case, in permitting the respondent to testify in his own behalf. (1.) Prior to the act of 1867, hereinafter considered, the courts uniformly held in this State that the amendments of the statute authorizing parties to actions to testify as witnesses, did not include cases where the only parties were husband and wife. The rule was one at common law, based as well on the identity of legal interests as on principles of public policy for the maintenance of peace and harmony in the marriage relation, which constitutes the basis of civil society (Co. Litt., 6 b; Barbat v. Allen, 7 Exch., 609; Stapleton v. Crofts, 18 Q. B., 367; Bentley v. Cook, 3 Dougl., 422). And so zealous were the courts of maintaining this rule, and so sensible were they of its propriety, that prior to the act of 1867 they uniformly held that the previous statutes allowing parties to testify, removed only the disqualification of interest, which at common law excluded the evidence of all parties ; but did not remove the disqualification which attached to the marital relation, and which rested on higher and worthier grounds (Chamberlain v. Dempsey, 36 N. Y., 149; Hasbrouck v. Vandervoort, 9 Id. [5 Seld.], 153; S.C., 4 Sandf., 596; Carpenter v. White, 46 Barb., 419; Marsh v. Potter, 30 Id., 156; Pillow v. Bushnell, 5 Id., 156; Smith v. Smith, 15 How. Pr., 165; A— A— C— v. S— C—, 35 Id., 430; Babbitt v. Thomas, 31 Barb., 278; White v. Stafford, 38 Id., 419; Rivenburg v. Rivenburg, 47 Id., 419; Rogers v. Rogers, 1 Daly. 194; Wehrkamp v. Willett, 1 Keyes, 250; Moffat v. Moffat, 10 Bosw., 468; S. C., 17 Abb. Pr., 4; Card v. Card, 39 N. Y., 322). (2.) The respondent was the husband of the appellant. Both were parties to this actiori. It is submitted, that the act of 1867 (2 Laws of 1867, ch. 887), “to enable husband and wife, or either of them, to be a witness for or against the. other, or on behalf of any party in certain cases,” did not authorize the respondent to testify in the present case. The first section of that act seeks to render competent the husband and wife of any party to a suit, or of any person in whose behalf it is prosecuted, to testify the same as any other witness. It does not provide that husband and wife, when parties, shall be allowed to testify - (2 Laws of 1867, p. 2221). The second section expressly forbids husband or wife to testify for or against the other, in criminal and divorce cases, and the third section forbids either to disclose confidential communications made during their marriage. A strict construction of this statute (and being in derogation of the common law, and of the rules of evidence, it must be strictly construed), would authorize a party to produce his wife (or vice versa), as a witness in any suit not within the prohibition of section 2. But the omission of the statute to provide, that they may testify -when both are parties, it' is insisted, sustains the exception taken (Jackson v. Hobby, 28 Johns., 357; Richardson v. Gere, 21 Wend., 156; People v. Hadden, 3 Den., 220 ; Fleming v. Hollenback, 6 Barb., 271; McClusky v. Cromwell, 11 N. Y., 593; Taylor v. Jennings, 7 Robt., 583, per Jones, J.) A similar statute was enacted in England, in 1853. A reference to that statute, and to the construction placed upon its language by the courts there, will well illustrate the force of the objection here raised, and of the propriety of the appli-. cation of the rule of construction here insisted on (Stat. 16, 17 Vic., c. 83, §§ 2, 3; Stapleton v. Crofts, 18 Q. B., 367, in point; 2 Taylor on Ev., 4 ed., §§ 1217, 1219, and notes reviewing the statute, citing it and stating effect of construction). (3.) But even if, under the act last cited, the respondent was competent as a witness, his evidence was not competent as to the verbal statements to which he testified, and the exceptions to the admission of which were well taken; At the time the .conversations testified to by the respondent occurred, they were privileged under the law, as it then stood. The act of 1867 can have no retroactive effect as to conversations made under sanction of a legal privilege prior to its passage. (4.) Even under the act of 1867, the exceptions referred to are well taken. The evidence was of comnnications made by a wife to her husband during coverture, and therefore confidential within the second section of the act (Handlong v. Barnes, 1 Vroom, 69).
    II. The referee erred in allowing the respondent, as a proper deduction from the balance in Ms hands belonging to the appellant, the sum of six hundred and thirty-nine dollars, which he testified he paid for medical attendance upon his wife. (1.) Ho writing was shown authorizing the respondent to charge the appellant’s separate estate with the payment of any such sums for any such purpose (Yale v. Dederer, 22 N. Y., 450; S. C., 18 Id., 265; Vanderhoven v. Mallory, 1 N. Y. [1 Comst.], 452; Willard v. Eastman, 45 Mass.). (2.) A husband is legally liable for medical attendance on Ms wife, and this even where she has left him (Mayhan v. Thayer, 8 Gray (Mass.), 172; Myger v. Wythe, 23 Texas, 180). (3.) The medical men presented their bills to him, and not to her. In the absence of any separate estate of the plaintiff, he would have been liable for their amount. There was no evidence of any intention expressed in writing on hei^rjart, at the time of the employment of the medical men, that her separate estate was to be charged with their fees. (4.) The respondent was an agent to receive, not to charge, the appellant’s separate estate. Clearly that estate was not liable for claims, for which, as husband, he was personally liable in the first instance. There is no law by which a married woman, on acquiring a separate estate, can be charged with debts for which her husband is primarily liable ; unless at the time of contracting the debt she distinctly binds the estate (Johnstone v. Allen, 6 Abb. Pr. N. S., 306; Black v. Bryan, 18 Texas, 453; Cromwell v. Benjamin, 41 Barb., 558; Yale v. Dederer, 22 N. Y. 450; S. C., 18 Id., 265; Owen v. Cawley, 36 Barb., 52; White v. Story, 43 Id., 124; Woodward v. Sweet, 44 Id., 268; McCartney v. Welsh, Id., 271; Fisher v. Marvin, 47 Barb., 155; Kelso v. Tabor, 52 Id., 125). (5.) The theory upon which, in many cases, a married woman’s separate estate is made liable, is for benefits derived by it from the outlay. But as medical attendance cannot be for the benefit of the separate estate, except where the contract expressly so charges it, it is not to be so charged (Yale v. Dederer, 22 N. Y., 450; Ballin v. Dillaye, 37 Id., 35). (6.) Tow if, as the evidence shows, the husband first paid these bills, and then charged them over against the separate estate, he merely paid his own debt. He had no power to make it a charge against his wife or her property which he was authorized to collect (Jacques v. Methodist Episcopal Church, 17 Johns., 548).
    III. Equally erroneous was the finding of the referee, that the respondent had paid personally to the appellant, various sums, amounting to three thousand five hundred and eighty dollars, and that he was entitled to deduct that amount from the balance of her separate estate in his hands. (1.) She gave no receipt, order, or instrument, showing her intention to bind her estate by receiving the moneys. A verbal request, as already shown, was insufficient to charge her estate. (2.) Any other rule would authorize any husband, who, as here, was the repository of his wife’s separate estate, to charge it with the payment of every dollar given by him to her during her coverture.
    IV. A further error was committed by the referee in allowing the respondent the further sums paid for goods and merchandise ordered by the appellant, and for church and concert bills, and in permitting the same to be deducted from the balance of her separate estate in his hands. (1.) The same argument applies with equal force as that already argued against the allowance of the medical fees (Authorities cited under point II., supra). (2.) But besides this, these articles were proper for her situation as the respondent’s wife, and some of them were for the family. They were, therefore, necessaries for which he was liable (Morton v. Withers, Skinn., 348; Ryan v. Nolan, Irish Law R., Transcript, October 11, 1869; Heller v. Phillips, 39 N. Y., 351, directly in point). (3.) The fact that the bills were made out in his name, shows clearly the absence of any intention, either by the tradesman or the appellant, to charge any person other than the respondent, with their payment.. (4.) Merely paying the bills first, and then charging her estate with them, was simply charging her with his debts. This certainly could not be done under the case in the court of appeals Cited, without a distinct instrument in writing executed by the respondent, sufficient to charge her estate.
    
      William Henry Arnoux, for the defendant, re-
    spondent.—I. In fact defendant spent for plaintiff at her request, all the money he had received.
    II. The husband was a competent witness on the trial (Code of Pro., § 399, as amended in 1868, p. 1845 ; 2 Laws of 1867, p. 3221, ch. 887).
    III. The testimony respecting the conversations was properly received.
    IV. Plaintiff has no right of action. The moneys were placed in defendant’s hands by her voluntarily, and, being personal property reduced by him to possession, they belong to him (2 Kent Com., 135). The married woman’s acts do not abrogate this rule.
    Y. A verbal order was sufficient to charge the plaintiff’s separate estate.
    VI. The payments made by defendant were properly charged to plaintiff against the moneys she had placed in his hands.
    
      
      See also Corn Exchange Ins. Co. v. Babcock, Post.
      
    
   By the Court.—Spencer, J.

There are several important questions ruled upon Tby the referee in the trial of this case, to be considered before we reach the final question of the sufficiency of the evidence as received to support the findings and judgment.

First. Was defendant a competent witness on the trial % The referee ruled that he was, and received his testimony. The argument of the appeal brought before the court much legal research and logic in favor of, and against, the competency of the defendant as a witness, particularly as to the construction of section 1 of the act of 1867, entitled “An Act to enable husband and wife, or either of them, to be a witness for or against each other, or on behalf of any party in certain cases,” which provides as follows: “ In any trial or inquiry in any suit, action or proceeding in any court, or before any person^having, by law or consent of parties, authority to examine witnesses or hear evidence, the husband or wife of any party thereto, or of any person in whose behalf any such suit, action or proceeding is brought, prosecuted, opposed or defended, shall, except as hereinafter stated, be competent and compellable to give evidence, the same as any other witness, on behalf of any party to such suit, action or proceeding.”

In my opinion, the letter and spirit of the statute support the ruling of the referee on this question. 1

Second. Was the defendant’s testimony in regard to the conversations between plaintiff and defendant in respect to these bills, and advances, and the payment of the same, and the state of the accounts admissible ?

The referee held that it was, and received the same.

It is held by plaintiff’s counsel that this was error.

1. That at the time the conversations occurred, they were privileged and clearly inadmissible in evidence under the law as it then stood, and that the act of 1867 should not be so construed as to give to the samé a retroactive force or effect, so that these conversations held before its passage and inadmissible then, should become admissible since its enactment. There is much to be considered in this view of the question.

This act of 1867 is not one that can be classed or claimed as an “ ex post facto law,” prohibited by the Constitution of the United States, for, it has long been held and settled by the courts of this State, and the United States, that this prohibition applies only to laws respecting crimes and punishments, and, so far as it affects or relates to this case, this act cannot be claimed as one “impairing the obligation of contracts,” nor within any other class of laws prohibited.

I am of opinion that no law can be objected to, simply because it may be said to be retroactive in its effect, if it does not endanger or disturb vested rights, or impair the obligation of contracts, or in other respects come within constitutional prohibition.

Our State legislature, when acting within the limits of the constitution of the State of New York, and the United States, have that supreme power that Judge Blackstone ascribes to the British Parliament.

“Ithas sovereign and uncontrollable authority in the maMng, confirming, restoring, abrogating, repealing, reviving and expounding of law concerning all ' matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime or commercial” (1 Black. Com., 160).

I also hold that this law is like many others in this State that, by their enactment, substantially changed the rules of practice and evidence in our courts ; yet, they have been held to extend to actions upon contracts made before their enactment, it being held that they did not impair the obligation of contracts, but had ' reference to the remedy upon them.

It is true that this act of 1867 establishes a new rule of evidence. It admits testimony that was prohibited before, and thus far affects or varies the remedy existing before.

In like manner, section 398 of the Code establishes a new rule of evidence. It admitted, witnesses and testimony that were excluded before its enactment; and yet it has been held that this provision extended to actions on contracts that were made before the adoption of the Code (Neass v. Mercer, 15 Barb., 332).

2. It is also contended that under section 3 of the act of 1867, these conversations were inadmissible and prohibited. I am of opinion that the conversations as disclosed were not of a confidential character'; but, even if they had been, section 3 does not prohibit a voluntary disclosure. It only prohibits a compulsive disclosure. “Mo husband or wife shaE be compeEable to disclose,” &c.

I am clearly of the opinion that no error was committed by the referee in admitting the defendant to testify as a witness in his own behalf; nor in permitting him to state the conversations between himself and plaintiff in relation to these accounts.

In reviewing this case, I find that objections were duly made to the admission and the sufficiency of the testimony, on the ground that no written order or instrument in writing from plaintiff to defendant had authorized the payment of these moneys and bEls by the defendant, or authorized him to charge the same to the plaintiff, or upon her separate estate.

The members of this court are unanimous in the opinion that no order or authority in writing was necessary in this ¿ase. That it was simply a case of dealings of a principal with an agent, where the principal had the full and absolute control of the subject-matter,— namely, the estate or funds in question,—and in regard to the disposal of which the principal directed the agent:

The statute of 1848, as amended in 1849, gives to the married woman the same control over her separate estate as if she was single,—namely, absolute control.

This case does not involve the principles and questions discussed in Yale v. Dederer (18 N. Y., 266; S. C., 22 Id., 450), and in other cases, where the liability of the married woman on a contract is discussed.

In this case there was a personal estate, a cash fund belonging absolutely to the plaintiff,' and absolutely under her control in the eye of the law.

It was placed or it reached and remained in the possession "of the defendant, her husband, with her consent, and was paid out and disposed of, in divers sums, and divers dates, in accordance with her orders, directions and requests, to him given. I think that the ordinary rules governing principal and agent must apply to the dealings between husband and wife in this case.

The statute entitled “An Act for the more effectual protection of the property of married women,” as amended in 1849, possesses one unmistakable feature, be the same considered a virtue or defect.

It withdraws all power- or control of the wife’s separate property from her husband, and vests "the same in the wife, “in the same manner and with the like effect as if she were unmarried.”

She may spend it as she lists. She may give away to whom she wish, to her husband, if she so please, or she may pay his debts with it. In fact, do with' it as she pleases. There is no power in the courts to restrain or prevent her from the exercise of a married woman’s right under the statute, of holding or parting with her property at her will and pleasure.

She may make her husband, or any other person, agent in the care and control of the same,' on such terms, and subject to such directions, verbal or written, ¡ as she may prescribe, and, in a case like this, there is no power in the courts to prescribe any different rules for the observance of the husband as her agent, in fulfilling her directions, than the law provides for the ob-' servance of any agent towards Ms principal, or any agent chosen, by her other than her husband.

The court holds that no written order, request or direction from the plaintiff to the defendant was necessary to authorize him to pay the plaintiff these sums of money, or to pay these different bills. That a verbal order or request was sufficient, and there being no conflict of testimony as to the fact that he paid the same in accordance with her verbal directions, the judgment should be affirmed.

.Judgment affirmed.' 
      
      Present—Monell, Jones, and Spences, JJ.
     