¶1It is conceded that the defendant’s wife was not a competent witness in the case, unless she was made so by St. 1865, c. 207. That statute makes the wife of a party competent “ whenever the contract or cause of action in issue and on trial was made or transacted with the wife of any one of the parties in the absence of her husband.” But it provides that she shall not be allowed to testify as to private conversations with her husband.
¶2The cause of action in issue and on trial in this case was a malicious prosecution, which the plaintiff alleged that the defendant had caused to be instituted against him. It was not pretended that the defendant’s wife had any agency in instituting the prosecution. It was a complaint and a subsequent indictment, charging the plaintiff with the crime of peijury on the trial of an action which had been pending between these parties in the superior court. The testimony given by the plaintiff related to certain transactions between these parties. In these transactions the defendant’s wife had acted as her husband’s agent; but she had had no connection with the alleged perjury. The alleged peijury was not a part of the transactions, but was subsequently committed in testifying about them, if the *246plaintiff was guilty of it at all. We do not think the statute extends to such a case, for it is not in any sense true that “ the cause of action in issue and on trial was made or transacted with the wife.”
¶3The testimony of the wife, as to communications which she made to her husband respecting the transactions, is excluded by the plain words of the statute.
¶4The offer of the defendant to prove, in mitigation of damages, that the plaintiff had instituted a complaint against him, charging him with perjury, is not sustained by any authority cited. The cases of Watts v. Fraser, 7 C. & P. 369, and Fraser v. Berkeley, Ib. 621, do not apply to a case like this. In the first case it was held that one who is sued for a libel may prove, in mitigation of damages, that he was provoked to the act by a libel of the plaintiff upon him. In the second case it was held that one who is sued for an assault may prove, in mitigation of damages, that he was provoked to it by a libel of the plaintiff upon him. But we find no case where it has been held that such an act as a malicious prosecution is excused or palliated by the fact that the person prosecuted had committed a similar offence against the prosecutor. Excited feeling can be no apology for entering a court of justice and making or instigating a malicious prosecution. It is in the highest degree reprehensible to make the criminal law or a court of criminal jurisdiction an instrument for gratifying private malice or excited passion. The only purpose which the law recognizes as justifiable or excusable, in promoting a criminal prosecution, is to aid the state in the execution of public justice. The evidence offered did not tend to mitigate the wrongful act of the defendant in the least degree.
¶5Exceptions overruled.