
    *Asa Fitch versus Jonathan Hill and Another.
    A wife may be received to testify against the interest of her husband, in an action wherein he is not a party, and where his liability is contingent only, and not necessarily established by the trial in which she is called as a witness.
    Assumpsit on a promissory note, made by the defendants on the 26th of August, 1808, for the sum of 303" dollars 11 cents, payable by them jointly and severally to Asenath Tohy, or bearer, in four years from the date, with interest after one year, payable annually.
    The cause was tried on the general issue, at the last May term in this county, before Jackson, J.
    On the trial, the defendants admitted the making of the note upon which it appeared, by an endorsement thereon, that 143 dollars were paid on the same 26th of August.
    On the 9th of May, 1809, the said Asenath was married to one Walter Fitch; and he afterwards, as her husband, endorsed the note to the plaintiff, and guarantied to him the payment thereof.
    The defendants contended that the contents of the note had been paid to the said Asenath before her said marriage. To prove this, they offered her deposition, which was objected to by the plaintiff, on account of the interest which her husband, Walter Fitch, now had in the event of this suit, in consequence of his said endorsement and guaranty of the note. But as the transaction to which she was to testify took place before her marriage with the said Walter, who afterwards voluntarily bound himself for the payment of the note, the judge admitted her„deposition. She testified that the defendants did, on the 2d of May, 1809, pay to her the contents of the said note, which was then lost or mislaid; and that she gave them a discharge or release. thereof in writing under her hand. The defendants produced, the said release; and her signature thereto was proved by another witness.
    The plaintiff offered as a witness the said Walter Fitch, who is the brother of the plaintiff, and the plaintiff having released him from his liability as endorser or guarantor as aforesaid, he was sworn and examined. He testified that, about, a month or more before his said marriage, he received * the said [ * 287 ] note, with other papers, from the said Asenath, to hold and dispose of as her agent; and that, in July, 1811 or 1812, he endorsed it in the manner above mentioned, and delivered it to the plaintiff, for a full and valuable consideration.
    There was further evidence on both sides, all of which was left to the jury ; and the judge instructed them that, unless they were satisfied that the note had been fully paid to the said Asenath before her said marriage, as testified by her, they should find a verdict foi the plaintiff; and, further, that, although it had been so paid, yet, if they were satisfied that it afterwards came to the hands of the plaintiff fairly, and for a valuable consideration, without knowledge of such payment, they should in such case also find a verdict for the plaintiff. But if they were of another opinion on both these points, they should find a verdict for the defendants. A verdict being returned for the defendants, the plaintiff moved for a new trial, on account of the admission of the said deposition.
    
      Gold, for the plaintiff, insisted that the deposition of the wife of the guarantor of the note could not be received, on account of the interest of her husband, and he cited the authorities in the margin. 
    
    
      Hulbert and Hubbard, for the defendants.
    
      
      
        Peake's L. of Evid. 16, 17, 174—176.— 1 Mass. Rep. 15, Commonwealth vs Easland & Al.
      
    
   Parker, C. J.,

delivered the opinion of the Court.

The only question of any importance presented by this report is, whether Asenath Fitch, whose deposition was used in the action, although objected to, was a competent witness in the cause; and even this question has ceased to be of importance as to the present action, For, since the release of her husband, as guarantor to the note, she is undoubtedly competent; and it is very questionable whether a new trial would be granted under these circumstances, even if her deposition ought to have been rejected.

But we are all of opinion that the deposition was properly admitted, she being a competent witness of the facts concerning which she testified. Her husband is not a party to [ * 288 ] * this suit. But the objection is, that he has guarantied the payment of the note, and was therefore eventually liable, and that her testimony went to make him liable, which is said to be contrary to the policy of the law. None of the authorities cited, however, support this position.

Where the husband is a party, the wife cannot be sworn, either for or against him ; not for him, because their interest is one, and she may be expected to favor him; not against him, because it would be likely to promote dissension. But where the liability of the husband is contingent, and not necessarily established by the trial, in whicli she is called as a witness, her testimony may be received. This was settled in the case of Williams vs. Johnson, cited at the bar ; and the principle is recognized in a late compilation of the law of evidence. The cases cited by the plaintiff’s counsel all go to show that the wife’s testimony shall not be received to criminate the husband ; and we do not question that principle of the law of evidence.

Judgment according to the verdict. 
      
      
         Barker vs. Prentiss, 6 Mass. Rep. 430. — Parker vs. Hanson, 7 Mass. Rep 470 .— Warren vs. Merry, 3 Mass. Rep. 27.
      
     
      
      
        Strange, 504.
     
      
       Peake, 124.
     
      
      
         Griffin vs. Brown, 2 Pick. 304. — And see Pedley vs. Wellesly, 3 C. & P. 198. — Beveridge vs. Minter, 1 C. & P. 364.— Campbell vs. Twemlow, 1 Price, 81.— Bathews vs. Galindo, 4 Bingh. 610.
     