In the Court of Quarter Sessions of Dauphin County, No. 61, September Session, 1904.

MOTION IN ARREST OF JUDGMENT.

Commonwealth vs. Vance.

Special incompetency to testify in a particular case does not of itself involve incompetency to make an information or appear as prosecutor in the

same case.

A husband can become a prosecutor in a criminal action against his wife's paramour based upon the adultery in which she was a participant.

7

Messrs. J. R. Geyer and W. H. Earnest, for motion.

Albert Millar, District Attorney, contra.

Opinion by Jacobs, J., Dec. 21, 1903.

We think there is but one question which admits of discussion upon this motion, viz., whether the indictment is bad because the prosecutor is the husband of the woman with whom the defendant is charged to have committed adultery.

There is no doubt that a husband is incompetent to testify to the adultery of his wife in a criminal prosecution, either against her or her paramour: Act of May 23, 1887, Section 2. But it does not follow that the husband cannot be the prosecutor in a criminal action against his wife's paramour. There is a marked distinction between competency as a prosecutor and competency as a witness. In Chitty's Criminal Law, p. 2, it is laid down: "Those only are disqualified from becoming prosecutors, who either from religious scruples or infidelity, which renders them incapable of taking an oath, or from infamy, which presumes them. unworthy of credit, are incompetent to become witnesses. Of this description are Quakers, infidels, who have no ideas of God or a future state of retribution, and persons attainted of felony, treason or false verdict, or convicted of any species of crimen falsi which renders them infamous." In other words, the rule is that every person, who is generally capable of taking an oath in a court of justice, is competent to become a prosecutor. But it does not necessarily follow that a prosecator may, in the case in which he so appears, also be a witness. Chief Baron Gilbert, in his now almost forgotten but ever valuable work on Evidence, 7th ed., p. 110, says: "Where on any public prosecution there arises any private advantage to the prosecutor, there he cannot be a witness, because that were plainly to attest in his own behalf, which can never be admitted." So Dr. Wharton, in his work on Criminal Law, 5th ed., section 780, says: "There may, however, be cases in which the

prosecutor is so directly interested in the event as to be incompetent as a witness, unless where a statute conferring the interest recognizes his competency either expressly or by implication, Thus, where an informer by statute is to receive the penalty upon conviction he is at common law incompetent, unless it so be that the statute can receive no execution except the informer be a witness." Many cases supporting and illustrating this doctrine are to be found in the older reports. One of the most striking examples is the comparatively recent case of Rex vs. Williams, 9 B. & C. 440, where the court of king's bench held that on an indictment for forcible entry neither the prosecutor nor his wife was a competent witness, for the reason that upon conviction the justices were by the statute empowered to give restitution of the lands entered upon by force. The doctrine of these authorities has been swept away either by statutory enactments or judicial decisions, but it serves to illustrate what we consider the controlling principle in this case, viz., that special incompetency to testify in a particular case does not of itself involve incompetency to make an information or appear as prosecutor in the sa re

case.

This being so, we perceive no reason why a husband should not be permitted to become a prosecutor in a criminal action against his wife's paramour based upon the adultery in which she was a participant. If it be said that by so doing he exposes her crime and lays her open to indictment, it may also be said that such is the effect of a civil action against her paramour for criminal conversation, which undoubtedly the injured husband may bring, although he is not competent to testify as a witness in such action.

Defendant's counsel ingeniously argue that, as the husband, being incompetent as a witness against his wife, cannot be the prosecutor in a criminal action against her, so, too, bieng incompetent as a witness against her paramour, he is also incompetent as a prosecutor against the latter. But this argument proves too much. If pushed to its logical conclusion it would take away the right of the husband to bring a civil action for criminal conversation, in which he is incompetent to testify as a witness. If it be said, by way of distinguishing a criminal action and a civil suit, that in the former the information must be sworn, to answer is two fold, (1) as we have seen, the information may be sworn to by one who is not competent to testify on the trial of the case, and (2) as is pointed out by Judge Sittser in Com. vs. Geary, 9 Pa. C. C. R. 60, the husband may commence his suit by a capias and make affidavit of his cause of action. although he is not a competent wit

ness at the trial. Reasoning by analogy is always dangerous, and it is easy to see that the policy of the law may well forbid a husband or a wife to prosecute a criminal action against the other for adultery, without resting its inhibition upon the general incompetency of husband and wife to testify against each other in criminal suits.

No authorities directly in point have been cited on either side and our own search has resulted in the finding of but two, viz., Com. vs. Geary. supra, and Com. vs. Sharp, apparently unreported, but cited in Com. vs. Shaffer, 27 Pa. C. C. R. 415; in both of which cases it was held that a husband may be a prosecutor in a case such as the one before us. We concur in the result of these decisions and, even without their support, we should certainly be unwilling, in the absence of statutory or controlling judicial authority, to hold that an injured husband must stand idly by and see the destroyer of his household and his happiness go unpunished, unless some stranger sees fit to come forward and prosecute. The evidence act of 1887 goes far enough in silencing him as a witness. To the full extent of its provisions we are bound to follow it. But in our opinion the policy of the law demands that we should not go beyond them. It is highly important that such offenses should be punished and, while it is desirable that criminal prosecutions should be begun solely from motives of regard for the public welfare, we must take the facts of human nature as we find them. But it is well known that a majority of crimes are punished at the prosecution of the injured parties, and if the injured husband is denied capacity to criminally prosecute his wife's paramour, the only result is that an obstacle is placed in the way of the punishment of crime without any corresponding public advantage, since, as we have already said, he is free to bring a civil action, in which his wife's shame and guilt, as well as the shame and guilt of her paramour, may be fully exposed, and by reason of which his wife may be laid open to criminal prosecution.

The motion in arrest of judgment is overruled.

Until the close of the husband's curtesy estate, possession of land owned by husband and wife in joint tenancy by a purchaser under an executory contract of the husband alone followed by a deed at the wife's death purporting to convey in fee the whole tract, is held, in McNeely vs. South Penn Oil Co. (Va.) 62 L. R. A. 562, not to be adverse to the wife's heirs, so as to start the running of the statute of limitations, to whom, by statute, the wife's moiety descends, subject to the curtesy

estate.

In the Court of Common Pleas of Monroe County, No. 18, September

Term, 1903.

RULE TO QUASH WRIT of replEVIN.

Hill vs. Mervine.

Section 8 of the act of April 19, 1901, P. I., 88, relating to the affidavit of value, is directory, and failure to file said affidavit, where a sufficient bond has been entered, is not a sufficient reason for quashing the writ.

Mr. J. B. Williams, for plaintiff.

Mr. R. L. Burnett, for defendant.

Opinion by Erdman, P. J., Aug. 25, 1903.

The præcipe fixes the value of the property at $350. The bond filed and approved by the prothonotary is in the sum of $1,000. No exception or objection has been made to the sufficiency or regularity of the bond. No affidavit of value was made or filed with the prothonotary. The defendant asks that the writ be quashed "for the reason that at the time of the issuing of the same the said plaintiff had not complied with the provision of the act of assembly approved April 19, 1901, by filing with the said prothonotary an affidavit as to the value of the property described in the said writ.”

The plaintiff at the same time asks leave to complete the record by adding to the statement the affidavit of value.

The motion of the defendant might with propriety be refused for the reason that the objection is not sustained by the act of assembly. Section 8 of said act directs that "the plaintiff shall make an affidavit of value of the goods and chattels," etc., but nowhere provides that the same shall be filed. We will, however, consider whether the failure to make such an affidavit is sufficient in itself to quash the writ, and also whether such an omission can be supplied.

The only case to which our attention has been called in which this section of the act has been interpreted is Ammerman vs. Stone, II Dist. Rep. 726. In that case, Judge Ferris refused to allow the plaintiff to file an affidavit nunc pro tunc, and quashed the writ.

We have examined the opinion of Judge Ferris with a great deal of care and are not satisfied that his position is altogether correct. We concur with him in holding that the plaintiff should not be permitted to file the affidavit nunc pro tunc, and we also believe that such omission cannot be supplied by amendment as suggested in the present case. Such action by the court might work an injustice to the defendant by

depriving him of an action against the prothonotary if he suffered injury by reason of the prothonotary's failure to require for his own protection every safeguard offered him by the act.

We must, however, differ from his conclusion that the failure to make the affidavit of value was fatal to the writ.

In our opinion the purpose of the affidavit is simply to aid the prothonotary in determining the amount of bail to be required of the plaintiff. If he waives the right afforded him by the act which directs the plaintiff to make affidavit of value, and accepts and approves a bond offered without such affidavit having been made, we see no reason why the writ cannot properly issue.

The execution and filing with the prothonotary of a bond drawn in accordance with the provision of section 1 of said act, is the condition precedent to the issuing of a writ. In the present case a bond was executed, filed, accepted and approved by the prothonotary and there is no allegation that it was insufficient or deficient in any respect. The legislature did not deen the affidavit of value of sufficient import to require it to be filed, nor did it make the action of the prothonotary in fixing the amount of bail or approving or rejecting the bond conclusive.

We believe that the portion of the act relating to the affidavit of value is directory and not mandatory and if we are correct in this, then the failure to make said affidavit is not sufficient reason for quashing the writ.

The case of Thompson vs. Harvey, 4 H. & N. 254, referred to in Endlich on Interpretation of Statutes, par. 439, is very similar to the case under consideration.

And now, August 25, 1903, the motion to amend by adding the affidavit is denied, as is also the motion to quash the writ.

An insurer against employers' liability, whose contract gives it the right to defend against suits by employees against the assured, and which, after a judgment in excess of the insurance has been obtained against the assured, agrees to perfect an appeal, is held, in Getchell & Martin L. & Mfg. Co. vs. Employers' Liability Assur. Corp. (Iowa) 62 L. R. A. 617, not to be liable for negligently failing to do so, whereby the judgment is affirmed, in the absence of anything to show that the judgment was erroneous, and that plaintiff could not have succeeded on a second trial. With this case is a note on liability involved in the exercise of the right to control or carry on litigation in the name of another party.