
    LOUISE C. SOUTHWICK, Plaintiff and Appellant, v. GEORGE W. SOUTHWICK, Defendant and Respondent.
    
      [Decided March 5, 1870.]
    In a civil action between husband and wife either party is a competent witness for or against the other.
    The 3d section 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 “that no wife or husband shall be compellable to disclose confidential communicationsetc.¡ does not prohibit a voluntary disclosure of the same.
    
    There is no power in the courts to restrain or prevent the exercise of a married woman?s right under the statute of holding or parting with her property at her will and pleasure.
    No written order, request, or direction from the wife to the husband is necessary to authorize the husband to pay bills or disburse money for her benefit. A verbal order or request is sufficient.
    Before Monell, Jones, and Spencer, JJ.
    Appeal from a judgment entered upon the report of a referee.
    The plaintiff claimed to recover from the defendant the sum of $5,118.98 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 plaintiff’s father (the late Mangle M. Quackenboss). Plaintiff alleged that defendant so received as such agent sums of money which amounted in the aggregate on the 22d day of June, 1866, to the sum of $14,448.24, of which there remains due to plaintiff the said sum of $5,118.98.
    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 is 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 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 §13,032.24, and no more. And defendant alleged 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 $14,068.79.
    He denied that there is any sum of money due from him to plaintiff, but claimed, she owed him the sum of $136.55, for which, with interest (as a counter-claim), defendant claimed 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 denied 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 in 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 liabilities of her husband, or subject in any manner 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 $50,021.07, 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 September 16,-1864, authorizing the defendant, as plaintiff’s attorney, “ to ash, demand, and recover and receive ” all and any sums of money or other property then or thereafter to become due, payable, etc., 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 John M. 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, etc. 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 ($13,932.24), which were 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 as a witness George W. Southwick; the defendant, as a witness in his own behalf. The plaintiff objected to his competency on the ground that he was the husband of the plaintiff (which fact was admitted). The referee overruled the objection, to which ruling plaintiff duly excepted, and the defendant was admitted to 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 $14,448.24.
    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), amounting in the aggregate to the sum of $9,329.26. (This admission left only the sum of $5,118.98 contested.) The defendant testified that he had paid one Dr. Eeisig for medical attendance upon plaintiff, and by the request and direction of plaintiff, the sum of $639 in two bills. One of January, 1865, of $266, and another of January, 1866, of $383. That these bills so paid were sent to his house, and had been made out in the name of 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 (as appeared from the statement of defendant or detailed account) cash payments was $3,580. That he had also paid at her request sundry bills for merchandise purchased by the plaintiff, amounting to the sum of $864.98 (statement in detail at folios 114 and 115). That he paid for the plaintiff at her request the sum of $35 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 10,1866 ; that the money was paid to her, and the bills paid for her upon her verbal orders, directions, or requests; that he never received any order, direction, or request in writing from the defendant 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 on the ground of incompetency, because the witness was the husband of plaintiff, or the conversations having been between husband and wife must be regarded as confidential and prohibited, and should be excluded. The referee overruled the objections, and the plaintiff excepted 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 appeals to the general term of this court.
    
      
      Mr. Elbridge T. Gerry for appellant.
    The referee committed a fatal error at the outset of the case in permitting the respondent to testify in his own behalf. 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 Queen’s Bench R., 367; Bentley v. Cook, 3 Doug., 422).
    And so zealous were the courts of maintaining this rule, and so sensible were they of its propriety, that prior to the passage of 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. R., 149; Hasbrouck v. Vandervoort, 5 Seld., 153; 4 Sandf., S. C. R., 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. R., 165; A. A. C. v. S. C., 35 id., 430; Babbitt v. Thomas, 31 Barb., 278; White v. Stafford, 38 Barb., 419; Rivenburg v. Rivenburg, 47 id., 419; Rogers v. Rogers, 1 Daly, 194; Wehrkamp v. Willett, 1 Keyes N. Y. R., 250; Moffat v. Moffat, 10 Bosw., 468; 17 Abb. Pr., 4; Card v. Card, 39 N. Y. R., 322).
    The respondent was the husband of the appellant. Both were parties to this action. 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 amy 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 so 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 thvrd 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 two. But the omission of the statute to provide that they may testify when both are pa/rties, 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. R., 593; Taylor v. Jennings, 7 Robertson, 583, per Jones, J).
    A similar statute was enacted in England in 1853. A reference to that statute and of 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 application of the rule of construction here insisted on (Stat. 16 and 17 Vic., cap. 83, §§ 2 and 3; Stapleton v. Crofts, 18 Q. B. R., 367 in point; 2 Taylor on .Evidence, 4 ed., §§ 1217, 1219, and notes reviewing the statute, citing it and stating effect of construction).
    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 exception to the admission of which was 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. Even under the act of 1867 the exceptions referred to are well taken. The evidence was of communications made by a wife to her husband during coverture, and therefore confidential within the second section of the act (Handlong v. Barnes, 1 Vroom, N. J., 69).
    The referee erred m allowing the respondent, as a proper deduction from the balance in his hands belonging to the appellant, the sum of $639, which he testified he paid for medical attendance upon his wife. Bo 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. R., 450; 18 id., 265; Vanderhaven v. Mallory, 1 Comstock, 452; Willard v. Eastman, 45 Mass. R.).
    A husband is legally liable for medical attendance on his wife, and this even where she has left him (Mayhan v. Thayer, 8 Gray’s (Mass.) R., 172; Myger v. Wythe, 23 Texas, 180).
    Equally erroneous was the finding of the referee that the responden t had paid personally to the appellant various sums amounting to $3,580, and that he was entitled to deduct that amount from the balance of her separate estate in his hands. She gave him 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. 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. 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. The second finding of the referee, that “ the ‘plaintiff voluntarily placed in the possession of the defendant certain moneys received by her, from time to time, from the executors of the last will and testament of her said father, on account of her interest in his estate,” was inaccurate in point of fact, and the exception thereto is well taken.
    
      
      Mr. William Henry Arnoux for respondent.
    The husband was a competent witness on the trial of this action (Code, sec. 399, as amended by 2 Laws 1868, p. 1845; 2 Laws 1867, p. 2221, ch. 887).
    The act of 1867, “to enable husband and wife or either of them to be a witness for or against the other, or on behalf of any party,” includes this case. It is a remedial statute, and is to be liberally construed.
    The Legislature in the second section construes the meaning of the provisions of the act by excepting from its operation certain divorce cases. It would be absurd to say that husband and wife could not testify in that class of cases, wherein they alone were parties, if they could not in any case where they might be parties.
    The English act known as Lord Denman’s act to amend the law of evidence, passed August, 1861 (14 and 15 Vict., c. 99), has no analogy to this law; it only in general terms rendered pern-ties competent and compellable to give evidence on behalf of any or either of the parties to the suit, without providing for the case of husband or wife eo norrdne.
    
    But when the decisions of Stapleton v. Crofts (83 Engl. Com. Law R., 385) and Alcock v. Alcock, an equity case (12 Eng. Law and Eq., 364), were announced, the British Parliament, two years afterwards, passed an act that was the forerunner of ours (16 and 17 Vict., c. 83) whereby husbands and wives are rendered competent in all ciroil cases to give evidence on behalf of any or either of the parties to an action, but not in criminal cases nor cases of adultery, nor to disclose any communications made during marriage.
    The testimony of the defendant respecting the conversations between himself and the plaintiff was properly received. The testimony was given of communications that had no reference to the marital relation existing between the parties, but were had between principal and agent.
    The testimony did not disclose any confidential communication made by one to the other during their marriage. This word confidential distinguishes our statute from the English statute above referred- to.
    The statute does not prevent the parties voluntarily disclosing such communications. Its language is, “ Ho husband and wife shall be compellable to disclose,” etc. (2 Laws 1867, p. 221, ch. 887, sec. 3).
    The plaintiff has no right of action against the defendant for these moneys. They were placed in his hands by her voluntarily, without any express or implied trust or agreement in relation thereto. Being personal property, reduced by the husband to possession, they belong to him (2 Kent’s Com., 135, and cases cited in notes).
    The statutes in relation to married women’s property do not abrogate this rule (Laws 1848, p. 309; Laws 1849, p. 528).
    ' The plaintiff fulfilled the directions of the will—she did receive and dispose of the money.
    If putting it in possession of the husband was a valid disposition of these moneys, then no right of ownership could be revived or created in the plaintiff by the account of defendant.
    It is against the policy of the law to disturb the relations between- husband and wife, by allowing such suits to be brought for moneys paid to the wife or expended under her direction.
    A verbal order was sufficient to charge the plaintiff’s separate estate.
    There is nothing in the law of principal and agent that requires that orders to pay moneys should be in writing, and nothing in the relation of the parties to this action that makes it requisite.
    After the money was so applied the plaintiff was notified and approved of such payment, and thus ratified the payment. Such ratification can be proved by parol.
    The case of Yale v. Dederer applies only to a future promise to pay as indorser and not to a payment actually made.
    Although the husband is primarily liable for all household expenses and physicians’ bills, yet the plaintiff could lawfully direct the payment thereof out of the separate estate. Such payment so made would be in diminution of her estate pro tanto.
    
    It is conceded that the defendant has truthfully stated the transaction, that it was the express direction and clear intent of the plaintiff that such payments would be so made, otherwise the plaintiff would have been called as a witness.
    The payments made by the defendant were properly charged to the plaintiff against the moneys she had placed in the defendant’s hands, if she had any claim thereon.
    The defendant did not receive this money from any third party, but from the plaintiff herself. Conceding here, for the sake of argument, that the money was the money of the plaintiff, then the defendant was only the custodian of these moneys, a bailee without reward, and he was bound to return them to the plaintiff or to make such disposition of them as she should direct.
    If the plaintiff had taken her money from a third party, and had gone to Stewart’s and bought and paid for her purchases, no one would contend that she could have claimed that her husband should refund the amount to her. And the fact that the custodian of the money was the husband makes no difference in law.
    There is now no presumption that a wife is, as respects her separate property, under the fear or compulsion of her husband. Our beneficent legislation commenced in 1848, and since by various acts greatly improved and followed in nearly every State of the Union, has changed the relation between husband and wife and has freed the wife from the vassalage of the common law. In respect to her property she is equal to her husband, and his control is no longer recognized as being more influential in the disposition thereof than that of any other person, and therefore the statute no longer requires of a married woman a private acknowledgment apart from her husband, in respect to her separate property (Blood v. Humphrey, 17 Barb., 660; Yale v. Dederer, 18 N. Y., 271; Wiles v. Peck, 26 do., 42).
   By the Court:

Spencer, J.

There are several important questions ruled upon by 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 the 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 and against the competency of the defendant as a witness, particularly as to the construction of the first section of the statute 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 pa/rty 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 gime evidence the same as any other witness on behalf of any party to such suit, action, or proceeding.” As the law was before the passage of this act, the defendant would not have been a competent witness. But it appears to me that this statute relieves the case of all doubt, and enacts and provides substantially that, in a civil action of this character between husband and wife, either is a competent witness for or against the other. In the words of its provisions, “ the husband or wife of any party thereto shall be competent and compellable to give evidence the same as any other witness on behalf of any party.” In my opinion the letter and spirit of the statute supports the ruling of the referee on this question.

Second. Was the testimony of the defendant in regard to the conversations between the plaintiff and defendant in respect to these bills and advances, and the payment of the same, and the state of accounts between them admissible ? The referee held that they were, and received the same. It is held by plaintiff’s counsel that there was error in this ruling. First—That at the time the conversations occurred they were privileged and were 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 same 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 the 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 Uew York and the United States, have that supreme power that Judge Blackstone ascribes to the British Parliament: It has sovereign and uncontrollable authority in the making, confirming, restraining, abrogating, repealing, reviving, and expounding of law concerning all matters of all possible denominations, ecclesiastical or temporal, civil, military, maritime, or criminal” (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; that they did not impair the obligation of contracts, but had reference only 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 established 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., 322).

It is also contended that under the third section of the act of 1867 these conversations were inadmissible and prohibited. I am of the opinion that the conversations as disclosed were not of a confidential character, but even if they had been the third section does not prohibit a vohmtary disclosv/re. It only prohibits a compulsive disclosv/re. “ Ho husband and wife shall be compellable to disclose,” etc.

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 bills 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 case; that it was simply a case of dealing 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 and 22 N. Y. Reps.) 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 at 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 it 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 her agent in the care and control of the same, on such terms and subject to such direction, written or verbal, 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 observance of any agent towards his 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.  