that any party in any civil suit, &c., may require any adverse party, whether complainant, plaintiff, petitioner or defendant, or any one of said adverse party, to give testimony under oath in such suit or proceeding, in the same manner as persons not parties to such suit or proceedings, and who are competent witnesses therein.

An enactment substantially the same, though in different language, is found in § 344 of the Code of Procedure, which is as follows: "A party to an action may be examined as a witness at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled in the same manner and subject to the same rules of examination as any other witnesses, to testify either at the trial, or conditionally, or upon commission." This section is made applicable to suits pending at the time the Code of Procedure took effect, and this suit belongs to that class.

The language of the act of 1847, if literally construed and without reference to other guides which we are to consult in giving a construction to statutes, might admit of the application claimed by the defendants; "any adverse party," is an expression broad enough to include. every individual made a party, no matter what may be his relation to another party. But statutes must be expounded according to the meaning and not according to the letter. (1 Kent's Com. 462; Dwarris on Stat. 552, 557; Smith's Com. on Stat. §§ 480, 515, 550; Gilman's Dig. 187, § 5, qui hæret in litera, hæret in lortice.) The letter of the law is the body; the sense and reason of the law is the soul. (Eysler v. Studo, Plowden, 465; 2 Just. 107.) It is true, it is a primary rule that the intention is to be collected from the words; but when the words are not explicit, it is to be gathered from the occasion and necessity of the law, the defect of the former law and the designed remedy being the causes which moved the Legislature to enact it, (Dwar. on Stat. 562,) and the same author says, "it is not to be presumed that the Legislature intended to make an innovation upon the common law further than the case absolutely required. The law rather infers that the act did not intend to make any alteration other than what is specified and besides what has been plainly pronounced; for if the Parliament had had that design, it is naturally said they would have expressed it. (Dwar. on Stat. 564; Smith's Com. on Stat. 530.) I think it is clear that the object of this statute was simply to remove the technical objection that previously existed under which a person could not be compelled to testify, because he was a party to the record, (1 Phil. Ev. 72; Green. Ev. § 353,) and that the only disqualification intended to be removed was that which arose from

the fact of being a party to the record. It can no longer be objected by the witness that he is a party to the suit-but if there be any other disqualification, it is not removed by the statute.

I am unwilling to suppose it was the intention of the Legislature to destroy by implication, and without any enactment clearly expressing such design, the ancient, well-settled and most salutary rule of law, which precluded both husband and wife from being witnesses against each other. The reasons, which for centuries have sustained this rule of evidence against infringement are no less cogent now than formerly. At no former period has it been more emphatically the dictate of sound public policy to preserve sacredness of a marrige relation, by protecting its confidence and guarding against discord and dissension. The act of 1847 is not expressly repealed by the code, but if there is any substantial difference in the language of the two acts, the latter would seem to give a legislative construction to the former, if indeed it does not virtually supersede it. I do not, however, think it material to decide this point, having come to the conclusion that the true construction of this new provision, even upon the language used in the act of 1847, does not render the wife a competent witness. An analogous construction was given to the Statute of Gloucester, c. 5. In regard to it, it is said in 2 Coke's Just. 300, "Though the assignee of tenant by courtesy or dower is within the letter of that statute, for he holdeth in some manner for life;-and the words are on en anter maner a terme de vie; yet no action of waste shall be brought by the heir against the assignee, but only against the tenant by courtesy or dower, these being the sole persons against whom it lay at the common law.

If the statute is to be construed as making every party a competent witness on the call of the adverse party, then it would remove the disqualification of several classes of persons now incompetent, such as insane persons, idiots, children who do not understand the moral obligation of an oath, and others. This could never have been intended. It is not claimed that the wife could have been called against her husband in a suit brought in his name alone; can it be that making her a party renders her competent? If so, then a witness is qualified to testify by the fact of being made a party to the suit. A wife not a party is incompetent, but a wife who is a party, and thus has what was formerly an additional disqualification, is a competent witness, though the same reasons for excluding her as a witness are equally applicable in both

cases.

On the whole, I am well satisfied the learned justice erred in receiving the wife as a witness.

As to the other question presented, I am equally well satisfied that the charge was correct. If the act complained of as an assault and battery, was committed by the consent and request of the wife, it formed an entire defence.

But the ruling at the circuit having been erroneous on the first point, there must be a new trial, costs to abide the event.

MICHAEL P. MERRITT VS. ROGER D. WING, RUSSELL C. WHEELER, TIMOTHY B. WHEELER and ALEXANDER K. WHEELER.

In all suits pending when the code took effect, the time of issuing executions therein must be governed by the laws then in force.

An execution issued within thirty days from the entry of a judgment obtained in January last, in a suit commenced prior to July 1, 1848, held to be irregular.

Such irregularity is waived, if the defendant consents to the issuing of the execution.

Special Term, Washington County, February, 1849.-Motion to set aside execution. The judgment in this suit was perfected against the defendants, Wing, R. C. Wheeler and T. B. Wheeler, on the 17th January, 1849; and an execution was issued thereon on the 22d of January, 1849. The suit was commenced in the spring of 1847. No process was served on A. K. Wheeler. After the execution was issued, and on the 24th of January, the sheriff called on the defendant, R. C. Wheeler, and showed him the execution. R. C. Wheeler said that neither he nor T. B. Wheeler had any property, and that he was perfectly willing that the plaintiff should issue his execution and make what he could on it. On the same day the sheriff and the plaintiff's attorney called on the defendant, Wing, who, after some hesitation, and after some conversation with the sheriff and plaintiff's attorney, consented that the sheriff should make a levy on his personal property, if the levy could be kept still, and he protected in retaining the property exempt by law from execution. And the sheriff then made a levy, the defendant, Wing, pointing out to him his property. Wing stood by and saw the sheriff make his inventory of the property levied upon without objection. The execution was issued in the old form in use before the adoption of the code. J. C. HOPKINS, for defendants.

JAS. FINLAYSON, for plaintiff.

PAIGE, Justice.-This suit was commenced before the Code of Procedure took effect. By the act of 14th May, 1840, (sec. 24,) an execu

tion could not be issued until after the expiration of thirty days from the entry of the judgment. The 54th section of the Judiciary Act (May 12, 1847,) did not repeal this section of the act of 1840. The 8th section of the code expressly confines its provisions to civil actions, commenced after the time when the code was to take effect. And the supplement to the code does not make the 238th section of the code in relation to executions and the time of issuing the same, applicable to suits pending when the code went into operation. This statement shows that in all suits pending when the code took effect, the time of issuing executions must be governed by the laws then in force. This being the case, the execution in this suit having been issued before the expiration of thirty days from the entry of the judgment, was irregular. But as to the defendants, R. C. Wheeler and Roger D. Wing, the irregularity was waived by the consent of Wheeler that the execution should be issued, and by the consent of Wing, to the sheriff's levy on his personal property. (Kimball v. Munger, 2 Hill, 364; 1 Howard's Sp. Term Rep. 71; 2 Hill, 378, Anon.) There has been as yet no attempt to enforce the execution against the defendant T. B. Wheeler. When such attempt is made, he will be at liberty to apply to have the execution set aside as to him. The motion must be denied, but without costs.

WASHBURN VS. HERRICK.

In cases where service by mail may be made, double time (forty days) is allowed to serve an amended answer or reply, of course, and without costs.

Special Term, Washington County, February, 1849.

J. LEWIS, for plaintiff.

E. F. BULLARD, for defendant.

PAIGE, Justice. Where a defendant serves his answer to the complaint by mail, in cases where service by mail may be made, he has forty days within which to serve an amended answer of course, and without costs, under § 148 of the code. The defendant may amend of course and without costs, &c., at any time before the period of replying to his answer shall expire. Where the service of the answer is by mail, the plaintiff has double the time to reply allowed in cases of personal service of the answer. (Code, sec. 373 and 131.)

If the plaintiff notices his cause for trial before the time allowed to the defendant to amend shall have expired, he does so at his peril.

THOMAS NEELE VS. ANDREW BERRYHILL.

MYRON H. CLARK and WILLIAM GORHAM VS. ANDREW BERRYHILL.

HENRIETTA S. GIBBS VS. ANDREW BERRYHILL.

The court will not allow a party to suffer by the omissions or mistakes of a clerk, attorney, or other officer of the court, where a substantial right is involved. Thus, two written statements duly verified, were filed by an attorney with the clerk of the county, for the purpose of having judgments entered by confession (against the same defendant) without action, pursuant to chap. 3, of title 12, of part 2, of the Code of Procedure. And the clerk entered in the judgment book, judgments of the Supreme Court for the respective amounts confessed, with costs; but omitted to endorse the same upon the statements as directed by § 337. On a subsequent day another written statement against the same defendant, by a different attorney, was filed with the same clerk, and judgment by confession thereon was perfected regularly in all respects, pursuant to the code aforesaid the last mentioned attorney knowing of the omissions in the two first causes. On a day subsequent to the entry of this last judgment, the attorney in the two first causes consented that the clerk re-enter the two first named judgments by making the proper endorsements &c.; to perfect the same regularly-which was done-making them subsequent in entry and lien to the judgment first regularly entered.

On a motion in behalf of the plaintiffs in the two causes first mentioned for an order requiring the clerk to endorse on the statements as of the time they were originally filed and that the judgments be entered in the judgment book and docketed as of the same day; the order was granted, and the re-entry vacated.

Ontario Special Term, February, 1849.-Before WELLES, Justice. On the 4th day of December, 1848, a written statement, duly verified, was filed with the clerk of Ontario county, for the purpose of having a judgment entered by confession, without action in the first above entitled cause, for the sum of $204.25, pursuant to ch. 3, of title 12 of part 2, of the Code of Procedure. Upon receiving and filing the statement, the clerk entered in the judgment book a judgment of the Supreme Court for the amount confessed, with $5.00 costs; but omitted to endorse the same upon the statement as directed by § 337. On the 12th day of December, 1848, a similar statement was filed with the same clerk in the second cause, for judgment without action for the sum of $230.38, duly verified in pursuance of said chapter, upon which the clerk entered judgment in the judgment book for the amount confessed, and $5.00 costs, and omitted, as in the first case, to endorse the judgment on the statement.

On the 20th day of January, 1849, a judgment by confession was entered in the third cause, for the sum of 389.23, and 5.00 costs, which