The People agt. Briggs.

and it often happens that questions are put and evidence elicited that would not be allowed in court. Shall every indictment therefore be set aside? I answer, by no means. Where there is sufficient legal evidence to warrant the finding of a bill, no court would set it aside for technical illegalities, which it is apparent did not and could not have influenced the action taken. But in this case the mistake is one of substance, and examining, as I have, with great care the evidence taken, I am by no means prepared to say that such a conclusion would have been arrived at without the testimony of Mrs. Briggs.

In view of what has been stated it would seem that some remedy should be afforded to the accused. I think the relief invoked by his counsel, viz.: The motion to quash the indictment, the only one that can be afforded. In a case reported in 2 Gallison, 364, judge STORY, at page 367, says:

"The grand jury is the grand inquest between the government and the citizen. It is of the highest importance that this institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal. Every indictment is subject to the control of the court; and this indictment having been found irregularly, and upon the statement of a witness without oath, which was not evidence, a cassetur must be entered" (See, also, State agt. Burlingham, 15 Maine, 101; People agt. Shattuck, 6 Abb. N. C., 33; People agt. Hulbut, 4 Denio, 136; 1 Bish. Crim. Prac. [3d ed.], sec. 763; 1 Abb. Pr. R., 268; 1 Abb. Pr. [N. S.], 248, 249).

We think the indictment should be quashed, and the pris oner remanded to await the action of another grand jury.

In view of this disposition of the case it is quite unnecessary to examine the other branches of this motion.

The following order was thereupon approved and entered: The grand jury at this term of the court having found and returned an indictment against the defendant for murder, and the defendant having moved, on the affidavits of Hiram G. Briggs and Nathaniel C. Moak, to quash said indictment.

The People agt. Briggs.

Now, after reading said affidavit and notice of motion, reading the minutes of testimony before the police justice, and taking the testimony of the evidence of Peter J. Vedder, the foreman of said grand jury, viva voce, by which it appeared Allie T. Briggs, the wife of said defendant, was sworn as a witness in behalf of the people against her said husband, before said grand jury, on the investigation of the charge against defendant, whereon the indictment was found, and that said Allie T. Briggs, among other things, testified on such hearing and investigation before said grand jury that, at the time when defendant is claimed to have killed said Erskine Wood, she said Allie T. Briggs, was not committing adultery or having carnal connection with said Erskine Wood, one of the questions before the grand jury being whether defendant so killed said Wood while having carnal connection with defendant's wife; and that said indictment was in part based and founded upon such incompetent evidence. After hearing Nathaniel C. Moak, of counsel for defendant, and Lansing Hotaling, district attorney of Albany county, opposed, it is ordered and adjudged that said indictment be and the same hereby is quashed and prisoner remanded to await the action of another grand jury.

NOTE. The precise point involved in the case of Briggs, as to the competency of the wife as a voluntary witness against her husband, was decided the same way in Byrd agt. State (57 Miss., 243), reported since judge OSBORN's decision. The Code of Mississippi (sec. 759) provided. (57 Miss., 245) that "Husband and wife may be witnesses for each other in all criminal cases, but they shall not be required to testify against each other as witnesses for the prosecution. Nothing herein contained shall be so construed as to debar full cross-examination by the prosecution of any husband or wife of an accused party who may be placed on the stand for the defense." The court below (p. 245) “held that, under this section, the wife may be a voluntary witness for the prosecution against her hus band's consent."

The supreme court, on error, reversed the conviction, saying (pp. 245-7): "We are constrained to differ from him (the judge below) in the construction he has placed on this statute.

"The statute is in derogation of a very ancient and well established rule

The People agt. Briggs.

of the common law, based, as we have above seen, in great part, upon grave reasons of public policy, having reference to the preservation of the happiness of parties joined together in the marital relation. Statutes which are in derogation of the common law must be construed strictly, so as not to give them an operation and effect beyond the clearly expressed intention of the legislature (Hopkins agt. Sandidge, 31 Mass., 668). Such statutes are to be construed with reference to the principles of the common law, and it is not to be presumed that the legislature intended to make any innovation on the common law further than the necessity of the case required (Edwards agt. Gaulding, 38 Miss., 118; Holman agt. Bennett, 44 Miss., 322). The rule of the common law excluded them as witnesses both for and against each other in criminal as well as civil cases. There was no difference as to their exclusion in either class of cases, and the rule was the same whether they were offered as witnesses for or against each other, except in a small class of criminal cases, where the wife was admitted to testify against the husband for her own protection and personal security. This being the state of the law, the legislature, by section 760, made them competent witnesses for each other in civil cases, leaving them still incompetent as witnesses against each other in that class of cases. In the section under consideration, the language is, 'husband and wife may be witnesses for each other in all criminal cases,' clearly showing that the legislature intended to apply the same rule as to their competency in criminal and in civil cases. If the legislature had intended to make them witnesses against as well as for each other, it would have been an easy matter to express that intent in unmistakable language. No reason is perceived why the legislature should not have done so, if, indeed, they had that intent, nor is it easy to give a satisfactory reason why the legislature should make them witnesses against each other in criminal cases, when it is undoubted that they are restricted in civil cases to being witnesses for each other. The whole force of the implication, that the legislature intended to allow one to be a voluntary witness against the other in criminal cases, arises from the use of the words 'but they shall not be required to testify against each other as witnesses for the prosecution,' following immediately after the provision allowing them to be witnesses for each other, and as a part of the same sentence. regard this as rather an over-cautious insertion to prevent an apprehended construction of the preceding words, than as engrafting a new and independent provision on the statute, which would be the case if it allowed the examination of one against the other, in case the party offered as a witness did not object.

We

"But if we are to construe this language to mean that the legislature thought that by the common law husband and wife might be required to testify against each other, when they were allowed to testify in behalf of each other, and to infer that this provision was inserted to prevent the

Clarkson et al. agt. Manson.

operation of such a rule, without the consent of the party offered as a witness, it does not follow that we are to construe the provision as making this erroneously supposed rule of the common law a part of the statutes of the State. An enactment of the legislature, based on an evident misconception of what the law is, will not have the effect, per se, of changing the law so as to make it accord with the misconception (Davis agt. Delpit, 25 Miss., 445).

"For the error in admitting the wife to testify against the husband, against his objection, the judgment is reversed, and a new trial granted, and cause remanded” (And see, also, People agt. Crandon, 17 Hun, 490). [REP.

U. S. CIRCUIT COURT.

WILLIAM R. CLARKSON et al. agt. ROBERT C. MANSON.

Removal of cause-How amount in dispute determined — Counter-claim must be considered.

Where an action is brought in a state court for an amount less than $500, and the defendant in his answer pleads a counter-claim exceeding the sum of $500, which is replied to by the plaintiffs:

Held, on an application for removal from state to a Federal court the counter-claim must be considered, and that the matter in dispute exceeds $500 (Overruling same case in 49 How., 480).

Southern District of New York, November, 1880.

MOTION to remand case to the marine court of the city of New York.

Ira D. Warren and John Bassett, Jr., for motion.

D. M. Porter and George H. Kracht, opposed.

BLATCHFORD, J.-The plaintiffs brought this suit against the defendant in the marine court of the city of New York to recover the sum of $195 as the balance unpaid on a sale of the fixtures of a store and bake-house. The answer put in, in the state court, sets up that the plaintiffs, with intent to defraud, falsely represented to the defendants that the bake

Clarkson et al. agt. Manson.

house was a profitable business place, and that one Ott, a former proprietor of it, had done a profitable business at it and thus induced the defendant to hire the store; that the plaintiffs also represented that they owned the store and the bakery fixtures in it and offered to sell them to him; that he, to secure for one day the right to purchase them, paid to plaintiffs five dollars as a deposit on the agreement that if he was not satisfied with the fixtures the five dollars should be forfeited; that the defendant, not being satisfied with the store and fixtures, immediately notified the plaintiffs thereof; that the place had never been a profitable business place for a bakery; that Ott closed it because he could not make it pay the expense of keeping it; that the fixtures were mortgaged and were owned by Ott and not by the plaintiffs; that the plaintiffs knew this; that the defendant, relying on said representations and believing them to be true, rented the store and furnished it with new fixtures and made repairs in it, and fitted it up at great expense and hired help to conduct the business of the bakery, and that he has not realized any moneys from the business carried on at the place and was unable to make the business pay expenses, but was obliged to close it to his damage, $750, which he sets up as a counter-claim against the plaintiffs. The answer denies all the allegations of the complaint not thus admitted or denied, and demands judgment against the plaintiffs, that the complaint be dismissed, with costs, and that he have judgment against the plaintiffs for $750. This answer was put in September 13, 1880. A reply, sworn to September 15, 1880, was put in by the plaintiff replying "to the allegations of counter-claim contained in the answer," and denying each and every of said allegations.

On the 20th of September, 1880, the defendant presented to the state court a petition, signed and sworn to by him September 18, 1880, setting forth the pendency of the suit as an action commenced and pending by the plaintiffs against the defendant; that the plaintiffs are, and were at the time of the commencement of the action, citizens of New York, and