Canole v. Allen

Citations

• 222 Pa. 156
• 70 A. 1053
• 1908 Pa. LEXIS 670

Syllabus

<p>Appeals — Assignments of error — Review on error unassigned — Evidence — Permitting husband to testify against wife — Act of May 23, 1887, P. L. 158.</p> <p>Ordinarily an appellate court is not concerned to inquire into errors committed on the trial of a case not specifically assigned for review.</p> <p>Where the record shows departure from established rules and procedure, affecting only the rights of the .parties to the action, and no specific complaint is made with respect thereto, the court will assume that the departure was made by and with mutual consent — conventio legem vincit.</p> <p>Where the departure manifests a clear disregard of recognized public policy, or is a violation of express statutory provisions, the appellate court will take notice of the error whether assigned or not. Restrictions so imposed are not subject- to the pleasure of the parties or the power of the courts.</p> <p>The court will take notice of such a flagrant error as permitting a husband to testify against his wife, although the error is not covered by any assignment.</p> <p>At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been re-enforced and guarded from invasion by statutory enactment.</p> <p>The Act of May 23, 1887, P. L. 158, defining competency, is more than confirmatory of the common law rule; it declares in express terms that neither husband nor wife shall be permitted to testify against each other.</p> <p>The parties to a suit and the trial judge as well are bound to take notice of this prohibition. Connivance by the parties cannot avoid it nor can indulgence by the court.</p> <p>In an action of trespass against a husband and wife, where it is admitted that the actual trespass was committed by the husband, and the husband is called as for cross-examination for the sole purpose of testifying against his wife, it is reversible error for the court to permit him to testify that he was actin