The wife of the plaintiff could only be called as a witness under the St. of 1865, c. 207, § 2. The validity of the deed from the plaintiff and his wife, conveying the homestead, was the matter in controversy; it was the contract or cause of action in issue and on trial. The deed was signed by Morony if executed by his wife, it conveyed title to the defendant; otherwise not. This was the point in dispute. The plaintiff *185testified that she did not sign it in his presence. But the deed was valid, though executed by her in his absence. The verdict was for the defendant; and the jury may have found that it was signed in his absence. Fischer v. Morse, 9 Gray, 440. Ayres v. Ayres, 11 Gray, 130. Smith v. Smith, 1 Allen, 231. Granger v. Bassett, 98 Mass. 462.

The words of the statute are, that, “ whenever the contract or cause of action in issue and on trial was made or transacted with the wife of any one of the parties in the absence of her husband, she may be a witness.” The defendant left his cause to the jury in such a shape as to justify them in finding that she signed the deed in his absence. And the court are of opinion that the plaintiff was, under the statute, entitled to meet this by calling his wife to prove that the deed was not executed by her. For all that appears, there may have been evidence, from the defendant or his witnesses, that the alleged act of the wife was in her husband’s absence. The only effectual negative which could be given to this, on the part of the wife, would be her statement that she never signed the deed. Cronan v. Cotting, 99 Mass. 335. To exclude her, when offered for this purpose, would be practically to give the defendant the undue advantage of being a witness in his own cause, and to deprive the plaintiff of the substantial equality which it is the purpose of the law to give to parties. It would give* the defendant the privilege of calling her to testify that she did sign the deed, if such was the fact, while the plaintiff could not call her to prove that she did not sign it in his absence. Exceptions sustained.