If this be deemed an action for damages for criminal conversation the wife was not a competent witness. It is insisted, however, by the defendant that this is notan action for criminal conversation, but is a separate and distinct action, one for alienation of affections, in which the adultery between the defendant and plaintiff’s wife is alleged and sought to be proven in aggravation of damages. The reason why a wife is not a competent witness against the defendant in an action for criminal conversation is that public policy should not permit an action to. be based upon collusion between husband and wife. If, however, by adding a few allegations of alienation of affections a husband can change his action from one for damages for criminal conversation to one for damages for alienation of affection, and in this way make the wife a competent witness, it is a very simple thing to avoid the prohibition of the right of the wife to swear against the defendant in an action for criminal conversation. This the law should not tolerate, and I am convinced that the charge of the trial judge was erroneous when he told the jury that the wife was a competent witness for the plaintiff.
But this question was only incidentally in the case. It did not touch the question of the right of the plaintiff to recover in the action. The plaintiff’s wife was living with her husband at the timé, although not sustaining the marital relation. It may be assumed for the argument that she was present with him at the trial. The plaintiff had sought to get before the jury her declarations of her improper relations with this defendant. He did not call her to the stand to swear to them, and it is apparent from the record that the plaintiff’s attorney claims as an excuse for failing to call her that she was an incompetent witness in his behalf. Whether or not the law permitted her to be sworn in plaintiff’s behalf, was only relevant in the case as bearing upon any presumption that might be indulged in against the plaintiff by reason of having failed to call upon her to testify. It was apparent, however, that plaintiff’s attorney understood that he was not permitted to call her as a witness. His understanding of his right had apparently been stated clearly before the jury. Whether or not he had the right to call her as a witness if he otherwise understood any presumption that would arise against him for failing to call her, would seem to be *806negatived. But further, when this ruling was made the case had not been submitted to the jury. Plaintiff might then have offered to put her upon the stand and have claimed his misunderstanding of his rights as an excuse for the tardiness of his offer. It is no answer to say that the court would probably have refused at that late stage of. the trial to have opened, up the case to allow the plaintiff to swear the witness. The mere offer to swear her and request for permission would have proven his good faith in his position that he was assuming that he was without right to avail himself of her testimony, and would have completely rebutted any inference that the defendant sought to draw from his failure to call her to the stand. The record does not inform us whether he would have sworn this witness if he could, or whether he desires a new trial for the purpose of producing her testimony. The application for a new trial by reason of this erroneous ruling should rather be an application for á new trial on the ground of surprise. Such an application, however, would find a complete answer in his failure to avail himself of the opportunity which lie had at the time the ruling was made to repair any harm which he claims to have suffered by reason of the erroneous ruling. I agree with Mr. Justice Sewell that the affidavit was incompetent evidence, as were the declarations of the plaintiff’s wife which were excluded by the trial court, apd I vote for an affirmance of the judgment.