
    Daniel F. Cook v. Thomas W. Grange.
    .A woman who has been divorced is not competent to prove a contract made with her husband during coverture.
    This is a writ of error to the Court of Common Pleas of Lucas county.
    The action below was brought by the present plaintiff against Grange and William Gaily,-to recover rent reserved in a lease for certain real estate.
    The lease is under seal, dated February 9th, 1837, and is for the term of three years. Process was issued against both Grange and Gaily, but was returned not found as to Gaily. Grange and Gaily were both in possession of the premises untif the spring or summer of 1838, when Grange left; and Gallyi •continued in possession until 1840.
    The plaintiff, on the trial, gave in evidence the lease, and proved the possession by Grange and Gaily, and rested his case
    The defendant, Grange, then called as a witness Sarah •Gaily, who, at the time of the mailing of the lease, and up to November, 1846, was the wife of the said William Gaily; but who, in 1846, had been divorced. She testified that in November, 1837, Grange became dissatisfied and wished to leave •the premises; that the plaintiff being at the farm, it was agreed between Mm, Grange and Gaily, that Grange should be released from both the expired and unexpired terms of the lease; that Grange was to leave on the farm the property belonging to him and Gaily jointly; and that Gaily agreed to pay the rent due, and to become due, according to the terms of the lease; and that Grange left the premises and the property in the possession of Gaily, in accordance with the terms of this agreement.
    The plaintiff objected to the competency of this evidence on two grounds:
    1st. Because the witness was testifying to a contract made with Gaily, and in which he was interested, during the time that she was his wife ; and,
    2d. Because it was offering a parol agreement, without consideration, to discharge a lease under seal. The court refused to rule out the testimony, and permitted it to go to the jury. The plaintiff excepted. A verdict was returned for the defend-ant and judgment entered.
    
      Waite Sf Sail, for plaintiff in error.
    Mrs. Gaily was an incompetent witness to prove facts wMch went to establish a liability on her husband’s part, and release a joint contractor. The result of her testimony was to release Grange, and charge her husband, Gaily. True, her husband was jointly responsible, but he could have an action over against Grange for all over his proportion.
    Now, by Mrs.. Gally’s testimony, Grange can plead a former recovery, and no action can be maintained against him. The result of her testimony is to increase her late husband’s liability, and it is therefore inadmissible. We are aware this is a new question in this state, nor is it to be wondered at, common as are divorces, they have not become so common that we are perfectly familiar with the full extent of the effect of the decree upon the rights of the parties and of third persons. But when, during the pendency of a suit, the wife of one of the parties Is ground through our divorce mill, (where all that is necessary is to file a petition and make a show of testimony,) and divorced, and wheeled instantly upon the stand as a witness, to charge her husband, it is full time to inquire into the legal effect of the divorce. Nor do we in this matter grope our way in the dark. Adjudicated cases there are, satisfactory to us at least, that the court below erred.
    In Ratcliffe v. Wales, 1 Hill’s Rep. 62, Justice Bronson uses this language: “ For the purpose of promoting a perfect union of interest, and securing mutual confidence between husband and wife, the court have generally refused to admit the wife as a witness against the husband, even after the marriage contract has been annulled, when she was called to speak to any matter which happened during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character.”
    
      Monroe v. Twiselton, Peake’s Ev. 29. The action was assumpsit, and Mrs. Landen was called to prove the defendant’s promise; but, it appearing she was the wife of the defendant at the time the contract was made, she was rejected, although she had since been divorced by an act of parliament. Lord Alveny saying, “ to prove any fact after the divorce, this lady is a competent witness, but not to prove a contract or any thing else which happened during coverture. She was at that time bound to secrecy; what she did know, might be in consequence of the trust and confidence reposed in her by her husband, and miserable, indeed, would be the condition of a husband, if, when a woman is divorced from him, all the occurrences of his life should be divulged in a court of justice.” I make this lengthy quotation, as it seems clear and conclusive on this point.
    Stephens, in his Nisi Prius, sec. 1768, vol. 2, uses this language : “ Where a man or woman are divorced by act of parliament, a wife is not admitted to prove a contract made by the lusband previous to the divorce.”
    Greenleaf, in his most excellent Treatise on Evidence, vol. 1, pp. 837, 408, 650, says: “And even when a wife has been divorced by act of parliament, and had married another person, was offered as a witness for the plaintiff, to prove a contract against her former husband, Lord Alveny held her clearly incompetent.”
    And Starlde, p. 552, vol. 2, says: “ Even after a divorce, a vinculo matrimonii, the woman cannot prove any contract or' any other matter which arose during coverture.”
    In the 1st vol. of Tyler’s Yermont Reports 36, it was held,, that a woman divorced a vinculo, was a competent witness against her former husband, on an indictment against him for an offense committed during coverture. But in the 2d vol., Tyler, p. 374, this case was .overruled, and the old doctrine-established.
    
      Spink Hopkins, for defendant,
    submitted the case without argument.
   Caldwell, J.

The first and most important question that arises in this record is, whether Sarah Gaily was a competent witness to prove the facts testified to by her. This question comes before this court for the first time.

In examining the different decisions that have been made in this country and England on this subject, we have found it difficult to establish any general principle on which they can be-harmonized. The current of authorities goes to establish the principle, that facts that have come to the knowledge of the wife through the confidence of the marital relation, cannot be proved by her, even after the marriage has been dissolved by divorce, in any case where her husband is interested.

In the case of Ratcliff v. Wales, (1 Hill’s Rep. 64,) the court lay down the rule, that even after the marriage is at an end, the wife will not be permitted to testify against the husband in any matter which happened during the continuance of the marriage, and which might affect the husband either in his pecuniary interest or character. Although the court in that ■case permitted the wife, after divorce, to testify in favor .of her former husband as to the facts that occurred during the existence of the marriage, on the ground that the circumstances rendered it impossible that she could have acquired the knowl edge through her husband; and that she had no inducement to testify in his favor.

Greenleaf, in his Treatise on Evidence, (1st vol. 408,) says, that it matters not that the marriage be dissolved, the seal of secrecy is placed on all confidential communications between husband and wife.

To secure domestic tranquillity, it is necessary that the high est confidence should exist between husband and wife; that all •communications made in confidence, by the disclosure of which either party may be affected, should be considered as under the most sacred seal of secrecy. It would be highly dishonorable for either party, even after the marriage had been dissolved, to make disclosures of facts that had come to their knowledge •either by confidential communication, or in any way on account -of the marriage relation.

There is another consideration which we think entitled to weight in the determination of this question. The bitter feelings which generally exist between the parties after thé dissolution of the marriage; the feelings of revenge, for real or supposed injuries, unfit the mind for a candid and unbiased presentation of truth, and renders it very doubtful whethei such testimony would tend to the furtherance of justice.

The frequency of divorces at the present time, is a matter we think not to be overlooked. If either husband or wife could be made a witness against the other, as soon as a divorce was obtained, it might, in some instances, have a tendency to produce that result.

As we have before remarked, the decisions that have been made elsewhere on this subject, do not harmonize on any well defined principle, and as the question is undecided in this state, •the court feel authorized to adopt such rule as., to them, appears dictated by a sound policy, for the furtherance of justice.

How far, then, shall the incompetency of a witness, to speak as to facts which occurred during marriage, after divorce, extend? Shall it be confined to such communications as have been made in confidence ? or shall it embrace all transactions which occurred during the marriage, in which either party may be affected, either pecuniarily or in reputation: in other words, all transactions which, at the time they happened, the witness would have been incompetent to prove ? The latter, we think, is the true rule, and therefore adopted.

It is very difficult, if not impossible, to establish any rule discriminating between such facts as have been communicated in marital confidence, and such as have not. Indeed, there is no difference between facts related between husband and wife, and such as come to their knowledge on account of the intimacy of relation that exists between them. All are equally confidential.

In the case before us, the witness testified to ‘a contract, to which her husband was a party, made during the existence of the marriage, and which, at the time it was made, she was incompetent to prove, and as we think, always incompetent, not-; withstanding the divorce. We are of opinion, therefore, that the court of common pleas erred in permitting her testimony to go to the jury.

This view of the case renders it unnecessary to decide the other question, as to the validity of .the parol contract, as the proof of that depended entirely on this witness.

Judgment will be reversed.  