McKenzie v. Lynch

Brooke, J. (after stating the facts). There can be no doubt that, under the decisions of our own State, a husband or wife, wronged as this defendant claims to have been, may settle his or her civil right of action for damages for the wrong. Briggs v. Withey, 24 Mich. 136; Lyon v. Waldo, 36 Mich. 345. But it is equally clear that such wronged husband or wife may not settle a criminal prosecution for the wrong of the guilty spouse. In Lyon v. Waldo, supra, the court, while divided as to the propriety of granting the innocent wife the relief sought, were unanimous upon the foregoing proposition. It was [586] there held that to affirm this power of settlement in the innocent party would lead to innumerable and enormous abuses, and would be intolerable. It is true that the legislature, in limiting the prosecution of the guilty spouse to a proceeding instituted upon the complaint of the wronged husband or wife, seems to have recognized the fact that the interests of society are not best subserved by indiscriminate prosecutions for this offense. And it is equally true that the innocent party will often suffer in silence, rather than endure the odium of a public prosecution with its necessary incidents of scandal and disgrace. These considerations, however, have no tendency to establish the contention that, because the innocent one may, at will, prosecute or refuse to prosecute, he or she may therefore make of that right a subject of barter and sale. Such a contract is void as against public policy, and a breach thereof affords no right of action. Case v. Smith, 107 Mich. 416 (65 N. W. 279, 31 L. R. A. 282, 61 Am. St. Rep. 341), and cases cited; Clark v. Ricker, 14 N. H. 44; Treat v. Jones, 28 Conn. 334. Is the last clause of the contract above set forth susceptible of the construction that thereby the defendant intended to deprive himself of his right to institute criminal proceedings against the plaintiff ? We think it is. Defendant there agrees to do no act, “ whereby this matter will acquire any publicity whatever.” It is clear that defendant thereafter could not become complaining witness, in a criminal proceeding against plaintiff, without giving publicity to the matter, thus violating his contract as to silence and concealment. The judgment is reversed, without a new trial. Ostrander, C. J., and Steere, Moore, and Stone, JJ., concurred.