Opinion,
Mr. Justice McCollum:
There are eleven specifications of error in this case, six of which relate to the admission and rejection of evidence, and the remainder to the charge of the court.
We see no error in the refusal to allow the question contained in the first specification. The witness had testified that she saw Mrs. Hahn immediately after her husband left her, and that she cried, and seemed distressed. As the issue was whether the husband had cause for leaving his wife, her condition, or what she may have said, a week or a month after his departure, cannot be regarded as a part of the res gestee.
[253]*253The second specification raises the question whether the decree in the desertion proceeding is a bar to any investigation of the cause of the separation. This record was inadvertently misdescribed in Bealor v. Hahn, 117 Pa. 169, as “ between the same parties,” when in fact it was a record of a proceeding between the commonwealth and Jeremiah M. Hahn. The question then before the court was on the admissibility of this record as evidence, not upon its effect. It was not then suggested that it constituted an estoppel, or a bar, as to all matters occurring before the order for support was made. It is a general principle, and one of the elements of the doctrine of res judicata, that personal judgments conclude only the parties to them, and their privies: Bigelow on Estoppel, 46. No one can take advantage of a judgment or decree, who would not have been prejudiced by it had it been otherwise; estoppels must be mutual: Chandler’s App., 39 Leg. Int. 347. If the proceeding had been dismissed on the ground that the husband had reasonable cause for abandoning his wife, would the record have been a bar to a suit by the wife for divorce on the ground of desertion? We think not. The proceeding is quasi criminal in its nature, and the commonwealth is a party to it. It may be instituted on the complaint of any person. If a stranger makes the complaint, the effect of the judgment is the same as if the wife made it. The person at whose instance the proceeding is commenced is not a party to the issue. “ Parties, in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies: ” 1 Greenl. Ev., § 535. In Petrie v. Nuttall, 11 Exch. 569, the plaintiff sued in trespass for breaking and entering his land. The defence was that the part referred to yas a public highway; and an indictment, verdict, and judgment against the plaintiff were pleaded by way of estoppels for obstructing the very same piece of land, as being the Queen’s highway. To this defence the plaintiff demurred, and his demurrer was sustained on the ground that the parties were not the same in the transaction. Aidjebsojñ, B., said that it was essential to an estoppel that it should be mutual, so that the same parties or privies might be bound and take advantage of it. The crown and subject were parties to the indictment, and therefore it was not between the two parties to the action [254]*254in which, it was pleaded as an estoppel. In Hutchinson v. M. & M. Bank, 41 Pa. 42, which was an action by the bank to recover money stolen from it, the effect of an acquittal of the defendant on an indictment for the larceny of the same money was considered, and Lowkxe, C. J., said: “ The private wrong was not merged in the public one, nor is, the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal.” In Bauder’s App., 115 Pa. 480, which was an action by the husband for a divorce on the ground that his wife had deserted him, it appeared that the husband left his wife in July, 1882; that she instituted proceedings against him for desertion, which were terminated on November 13, 1882, by an order upon him for her maintenance, and that this order was in full force at the time of the trial of the suit for divorce. It was contended that this order was a legal bar to the divorce prayed for. Evidence was admitted showing the disagreements of the parties, how they lived together, and how they separated. The learned judge of the court below, referring to the record of the desertion proceeding, in his charge to the jury said “We have received that record in evidence; and you will have it before you as one of the circumstances in the case, showing how these parties came to be separated, and you can also receive it as persuasive evidence of things as they stood at the time, but not conclusive.” And this court said: “ There is no error in the charge of the court, nor in the answers to the points.” It is true there was evidence from which a desertion subsequent to the order of November, 1882, might have been found by the jury, and this was referred to in the opinion affirming the decree; but we think the decision, fairly interpreted, supports the view that the record in the Quarter Sessions is persuasive, but not conclusive, evidence of a previous desertion by the husband. The second specification of error is not sustained.
In the present case the husband claims an estate by the curtesy in land of which his wife died seised. He deserted her more than a year previous to her death. It is incumbent on him to show that he had reasonable and lawful cause for such desertion: Bealor v. Hahn, supra. It is well settled that the reasonable cause which will justify husband and wife in aban[255]*255cloning each other is such as would entitle the party to a divorce, and we think this rule applies to this contest.
The tenth and eleventh specifications raise the question whether the plaintiff’s evidence shows such cause, and require us to pass on the sufficiency of the evidence to justify the desertion. But five witnesses called by the plaintiff speak of the relations and conduct of the husband and wife before their separation. H. C. Gibble, a justice of the peace to whom Mrs. Hahn applied for a warrant against her husband for desertion, says it was Mrs. Halm’s nature to scold and be cross, and that she admitted to him that she had not treated her husband as she should have done. Charles Hahn, a son of the plaintiff, aged twenty-two years, says he heard his mother call his father “ a d-d liar,” and that on one occasion, while he and his father were at the breakfast table, she said: “ I might just as well poison you, and then you would both be out of the road; ” and that in consequence of this remark lie was afraid, and left home two weeks afterwards. He was not a witness in the desertion proceeding. Samuel Plasterer says that Mrs. Hahn once said to him: “ It is a wonder that Mr. Hahn don’t take the horses away. They might get poisoned; ” but it does not appear that he mentioned this to the plaintiff. Priscilla Long says that Mrs. Hahn was not very pleasant when her husband was present, and that she talked unkindly about him when he was absent; that from three to five years before their separation their children had diphtheria; that the witness’s brother and Mr. Hahn did most of the nursing of them; that Mrs. Hahn assisted “very little,” and seldom stayed in the sick room when her husband was there. On cross-examination, this witness testified that the children were very sick, and that her brother, Mr. and Mrs. Hahn, and the neighbors, assisted in taking care of them; that Mrs. Halm “ didn’t nurse them all the time. She couldn’t. She had to be relieved.” Abraham Schopp says Mrs.
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Opinion,
Mr. Justice McCollum:
There are eleven specifications of error in this case, six of which relate to the admission and rejection of evidence, and the remainder to the charge of the court.
We see no error in the refusal to allow the question contained in the first specification. The witness had testified that she saw Mrs. Hahn immediately after her husband left her, and that she cried, and seemed distressed. As the issue was whether the husband had cause for leaving his wife, her condition, or what she may have said, a week or a month after his departure, cannot be regarded as a part of the res gestee.
[253]*253The second specification raises the question whether the decree in the desertion proceeding is a bar to any investigation of the cause of the separation. This record was inadvertently misdescribed in Bealor v. Hahn, 117 Pa. 169, as “ between the same parties,” when in fact it was a record of a proceeding between the commonwealth and Jeremiah M. Hahn. The question then before the court was on the admissibility of this record as evidence, not upon its effect. It was not then suggested that it constituted an estoppel, or a bar, as to all matters occurring before the order for support was made. It is a general principle, and one of the elements of the doctrine of res judicata, that personal judgments conclude only the parties to them, and their privies: Bigelow on Estoppel, 46. No one can take advantage of a judgment or decree, who would not have been prejudiced by it had it been otherwise; estoppels must be mutual: Chandler’s App., 39 Leg. Int. 347. If the proceeding had been dismissed on the ground that the husband had reasonable cause for abandoning his wife, would the record have been a bar to a suit by the wife for divorce on the ground of desertion? We think not. The proceeding is quasi criminal in its nature, and the commonwealth is a party to it. It may be instituted on the complaint of any person. If a stranger makes the complaint, the effect of the judgment is the same as if the wife made it. The person at whose instance the proceeding is commenced is not a party to the issue. “ Parties, in the larger legal sense, are all persons having a right to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, if any appeal lies: ” 1 Greenl. Ev., § 535. In Petrie v. Nuttall, 11 Exch. 569, the plaintiff sued in trespass for breaking and entering his land. The defence was that the part referred to yas a public highway; and an indictment, verdict, and judgment against the plaintiff were pleaded by way of estoppels for obstructing the very same piece of land, as being the Queen’s highway. To this defence the plaintiff demurred, and his demurrer was sustained on the ground that the parties were not the same in the transaction. Aidjebsojñ, B., said that it was essential to an estoppel that it should be mutual, so that the same parties or privies might be bound and take advantage of it. The crown and subject were parties to the indictment, and therefore it was not between the two parties to the action [254]*254in which, it was pleaded as an estoppel. In Hutchinson v. M. & M. Bank, 41 Pa. 42, which was an action by the bank to recover money stolen from it, the effect of an acquittal of the defendant on an indictment for the larceny of the same money was considered, and Lowkxe, C. J., said: “ The private wrong was not merged in the public one, nor is, the public prosecution intended to supersede the private action. Their purposes are entirely different. The person wronged is not chargeable with the conduct of the prosecution, and therefore not affected by an acquittal.” In Bauder’s App., 115 Pa. 480, which was an action by the husband for a divorce on the ground that his wife had deserted him, it appeared that the husband left his wife in July, 1882; that she instituted proceedings against him for desertion, which were terminated on November 13, 1882, by an order upon him for her maintenance, and that this order was in full force at the time of the trial of the suit for divorce. It was contended that this order was a legal bar to the divorce prayed for. Evidence was admitted showing the disagreements of the parties, how they lived together, and how they separated. The learned judge of the court below, referring to the record of the desertion proceeding, in his charge to the jury said “We have received that record in evidence; and you will have it before you as one of the circumstances in the case, showing how these parties came to be separated, and you can also receive it as persuasive evidence of things as they stood at the time, but not conclusive.” And this court said: “ There is no error in the charge of the court, nor in the answers to the points.” It is true there was evidence from which a desertion subsequent to the order of November, 1882, might have been found by the jury, and this was referred to in the opinion affirming the decree; but we think the decision, fairly interpreted, supports the view that the record in the Quarter Sessions is persuasive, but not conclusive, evidence of a previous desertion by the husband. The second specification of error is not sustained.
In the present case the husband claims an estate by the curtesy in land of which his wife died seised. He deserted her more than a year previous to her death. It is incumbent on him to show that he had reasonable and lawful cause for such desertion: Bealor v. Hahn, supra. It is well settled that the reasonable cause which will justify husband and wife in aban[255]*255cloning each other is such as would entitle the party to a divorce, and we think this rule applies to this contest.
The tenth and eleventh specifications raise the question whether the plaintiff’s evidence shows such cause, and require us to pass on the sufficiency of the evidence to justify the desertion. But five witnesses called by the plaintiff speak of the relations and conduct of the husband and wife before their separation. H. C. Gibble, a justice of the peace to whom Mrs. Hahn applied for a warrant against her husband for desertion, says it was Mrs. Halm’s nature to scold and be cross, and that she admitted to him that she had not treated her husband as she should have done. Charles Hahn, a son of the plaintiff, aged twenty-two years, says he heard his mother call his father “ a d-d liar,” and that on one occasion, while he and his father were at the breakfast table, she said: “ I might just as well poison you, and then you would both be out of the road; ” and that in consequence of this remark lie was afraid, and left home two weeks afterwards. He was not a witness in the desertion proceeding. Samuel Plasterer says that Mrs. Hahn once said to him: “ It is a wonder that Mr. Hahn don’t take the horses away. They might get poisoned; ” but it does not appear that he mentioned this to the plaintiff. Priscilla Long says that Mrs. Hahn was not very pleasant when her husband was present, and that she talked unkindly about him when he was absent; that from three to five years before their separation their children had diphtheria; that the witness’s brother and Mr. Hahn did most of the nursing of them; that Mrs. Hahn assisted “very little,” and seldom stayed in the sick room when her husband was there. On cross-examination, this witness testified that the children were very sick, and that her brother, Mr. and Mrs. Hahn, and the neighbors, assisted in taking care of them; that Mrs. Halm “ didn’t nurse them all the time. She couldn’t. She had to be relieved.” Abraham Schopp says Mrs. Hahn would talk roughly and unpleasantly to her husband, and that be would sometimes say unpleasant things to her, and that both were a little inclined to be quarrelsome. There is some evidence to the effect that they occupied different sleeping-rooms, and that they did not often take their meals together. But neither complained of these matters, and the evidence fails to show who was responsible for them. This [256]*256is the substance of the evidence on which the plaintiff, relies as his justification for abandoning his wife. It exhibits a state of domestic infelicity, but it does not present a case of cruel and barbarous treatment by the wife of the husband, which rendered his condition intolerable, and life burdensome: Gordon v. Gordon, 48 Pa. 226; Jones v. Jones, 66 Pa. 494. The single, so-called “ threat ” testified to bjr the son, did not alarm the husband; there was no act of violence to his person committed by the wife, and there was no evidence from which an attempt or intent to harm him or his estate could be fairly inferred.
The insufficiency of the proofs to authorize a divorce at the suit of the husband on the ground of cruel treatment by the wife is substantially conceded; but it is contended that “the testimony is not to be measured by .the standard of fulness required to be made out by the husband to secure a divorce.” A husband who has wilfully and maliciously deserted his wife for one year or upwards, previous to her death, cannot, since the act of May 4, 1855, P. L. 430, successfully claim an estate as tenant by the curtesy in lands of which she died seised. Where an unexplained desertion appears, it is presumed to be wilful and malicious, and it lies on him to show reasonable and lawful cause for it. If he cannot justify his abandonment of her by evidence which would entitle him to a divorce, he cannot have the rights of a husband in her estate. The tenth and eleventh specifications of error are sustained.
The seventh, eighth, and ninth specifications relate to the charge. Two of these are founded upon extracts from it, and, of course, must be considered in connection with it. We think that it adequately presented the issue, and that the jury could not have been misled bjr it. They were distinctly instructed that the plaintiff could not recover if they were satisfied from the evidence that he wilfully and maliciously deserted his wife, for one year or more prior to her death. These specifications are not sustained.
The third specification is dismissed, as we cannot say that it was error to allow the question embraced in it.
As to the fourth, fifth, and sixth specifications. The fact to which the question contained in the fourth specification refers was immaterial, unless Mrs. Hahn had some connection with [257]*257it. As there was nothing upon tbe record to justify such an inference, and as it was not pretended that the horse was poisoned, or died from oilier than natural causes, the question sbonld have been excluded. It was competent and proper for tbe defence to prove that tbe claim of a threat by Mrs. Halm to poison her liusband and son was an after-thought, and that it was not made on the trial of- tbe desertion case, although tbe plaintiff in this action was tlie defendant and a witness in it. We tbink, too, that tbe evidence offered to' contradict Plasterer should have been received. It related to the conduct of the plaintiff before tbe separation from his wife, and was therefore material to tbe issue. These specifications are sustained.
Judgment reversed, and a venire facias de novo awarded.