have existed and exist. She cannot complain of that which took place by her own consent. Any different rule would be an anomaly. Positive legislation might introduce it on grounds of moral expediency; the courts, which have the power and the duty of applying known principles to new cases, but cannot abrogate or modify the principles themselves, are unable to take any such step.

Historical accidents of the common law herein. There seems, in short, no reason why this class of wrongs should not be treated by the common law in a fairly simple and rational manner, and with results generally not much unlike those we actually find, only free from the anomalies and injustice which flow from disguising real analogies under transparent but cumbrous fictions. But as matter of history (and pretty modern history) the development of the law has been strangely halting and one-sided. Starting from the particular case of a hired servant, the authorities have dealt with other relations, not by openly treating them as analogous in principle, but by importing into them the fiction of actual service; with the result that in the class of cases most prominent in modern practice, namely, actions brought by a parent (or person in loco parentis) for the seduction of a daughter, the test of the plaintiff's right has come to be, not whether he has been injured as the head of a family, but whether he can make out a constructive" loss of service" (y).

Trespass for taking away wife, etc., and per quod servitium amisit. The common law provided a remedy by writ of trespass for the actual taking away of a wife, servant, or heir, and perhaps younger child also (z).

(y) Christian's note on Blackstone iii. 142 is still not amiss, though the amendments of this century in the law of evidence have removed some of the grievances mentioned.

(z) F. N. B. 89 O, 90 H, 91 I; Blackst.

An

Comm. iii. 139. The writ was de uzore abducta cum bonis viri sui, or an ordinary writ of trespass (F. N. B. 52 K); a case as late as the Restoration is mentioned in Bac. Abr. v. 328 (Ed. 1832).

action of trespass also lay for wrongs done to the plaintiff's wife or servant (not to a child as such), whereby he lost the society of the former or the services of the latter.

Injuries to wife or servant. A master has a right of action for an assault or an assault and battery, upon his servant, where some loss of service or capacity to serve results therefrom. Flunker v. Georgia Railroad & Banking Co., 81 Ga. 461; 8 S. E. Rep. 529; Knight v. Wilcox, 14 N. Y. 413. See Schouler's Dom. Rel. pp., 631, 632.

A master may sue for an injury to his apprentice causing disability, per quod servitum amisit, although the act was in violation of a contract made with the apprentice. Ames v. Union R. Co., 117 Mass. 541.

A father may maintain an action for harboring and secreting his minor daughter, and persuading her to remain absent from his family and service without his consent. Stowe v. Heywood, 7 Allen, 118.

The services and earnings of a married woman belong to her husband. Nat. Bk. of Metropolis v. Sprague, 20 N. J. Eq. 18; Bowden v. Grey, 49 Mass. 547; Yopst v. Yopst, 51 Ind. 61; Reynold v. Robinson, 64 N. Y. 589; Shaefer v. Sheppard, 54 Ala. 244; Bolman v. Overall, 80 Ala. 451; 2 So. Rep. 624; Uransky v. Drydock, E. B. & B. R. Co., 118 N. Y. 304; 23 N. E. Rep. 451; Porter v. Dunn, 131 N. Y. 314; 30 N. E. Rep. 122. So, therefore, for an injury to his wife, resulting in the loss of her services, the husband may recover damages. Kavanaugh v. Janesville, 24 Wis. 618; Barnes v. Allen, 1 Abb. App. Dec. 111; Philippi v. Wolf, 14 Abb. Pr. (N. S.), 196; Sloan v. New York Central R. Co., 4 Thomp. & Co. 135; Hun, 540; McWhirter v. Hatten, 42 Ia. 288; Meese v. Fond du Lac, 48 Wis. 323; City of Wyandotte v. Agan, 37 Kan. 528; 15 Pac. Rep. 529; Maine v. City of Rich Hill, 28 Mo. App. 497; Blair o. Chicago & A. Ry. Co., 89 Mo. 334; 1 S. W. Rep. 367; Scogland v. Minneapolis St. Ry. Co., 45 Minn. 530; 47 N. W. Rep. 1071.

A distinction is drawn in the case of Brooks v. Schuverin, (54 N. Y. 343), between where the wife performs household services and where she works for another, the court holding that in the latter case she alone can recover for an injury disabling her from performing such service. See Tuttles v. Chicago, R. I. etc. R. Co., 42 Ia. 518; Newmeister v. Dubuque, 47 Ia. 465; Carr v. Easton, 7 Penn. Co. Rep. 403.

Taking away of wife. "It is a common law rule, that a husband may maintain an action for enticing away his wife and separating her from him, whereby he loses her services and society." Hutcheson v. Peck, 5 Johns. 196, followed in Wood v. Mathews, 47 Ia. 410; Turner v. Estes, 3 Mass. 316; Barbee v. Armistead, 10 Ired. 530; 51 Am. Dec. 404; Tasker v. Stanley (Mass.), 26 N. E. Rep. 617; White v. Ross, 47 Mich. 172.

"It is well settled that a husband may maintain an action for enticing away his wife, or enticing her to live apart from him, and this, whether the wrong-doer be the father of the wife or any other person. But merely

The language of pleading was per quod consortium, or servitium amisit. Such a cause of action was quite distinct from that which the husband might acquire in right of the wife, or the servant in his own right. The trespass is one, but the remedies are "diversis respectibus" (a). "If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself for every small battery shall have an action; and the reason of this difference is that the master has not any damage by the personal beating of his servant, but by rea

(a) Y. B. 19 Hen. VI. 45, pl. 94.

allowing the wife to come and remain in his house, by a stranger, and much less, her father, from good motives, will not give the husband a right of action. Something further tending to prevent or dissuade the wife from living with her husband is necessary." Bennett v. Smith, 21 Barb. 439.

Where one voluntarily interferes with the relations of husband and wife, even though the relations have been so violent that a divorce would be granted if sued for, he does So at his peril. "The wife may have a just cause for separation or divorce, but she may elect to abide by her situation, and remain with her husband nevertheless. If she chooses to do so, no stranger has a right to intermeddle with the domestic and marital relation of the husband and wife and if he voluntarily does so he is amenable for the consequences." Mosisett *. McPide, 47 Mo. 646. See Schouler’s Dom. Rel., pp. 57, 58; Rulbe v. Hanna, 5 Ohio, 530; Campbell v. Carter, 3 Daly, 165; Smith v. Lyke, 20 N. Y. Supreme Ct. 204; Perry v. Lovejoy, 49 Mich. 529.

Taking away of husband At common law a wife could not maintain an action for the enticing away and harboring of her husband, but in some of the States statutes have conferred upon her this right. See Van Arnam v. Ayres, 67 Barb. 544; Reeder v. Purdy, 41 Ill. 279, 282; Michigan v. Coleman, 28 Mich. 440; Duffies v. Duffles, 76 Wis. 374; 45 N. Y. Rep. 522. However, the authorities are not uniform on this point, and the common law doctrine is criticized in Westlake v. Westlake, 34 Ohio St. 621. See Bennett v. Bennett, 116 N. Y. 584; 23 N. E. Rep. 117; Wolf v. Wolf, 130 Ind. 599; 30 N. E. Rep. 308; Haynes v. Nowlin, 129 Ind. 581; 9 N. E. Rep. 289, annulling Logan v. Logan, 77 Ind. 588; Warren v. Warren, 89 Mich. 123; 50 N. W. Rep. 842; Waldron v. Waldron, 45 Fed. Rep. 315; Huling v. Huling, 32 Ill. App. 519; and cases collected in 31 Cent. Law J. 29 n.

son of a per quod, viz., per quod servitium, etc., amisit; so that the original act is not the cause of his action, but the consequent upon it, viz., the loss of his service, is the cause of his action; for be the battery greater or less, if the master doth not lose the service of his servant, he shall not have an action" (b). The same rule applies to the beating or maltreatment of a man's wife, provided it be "very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife " (c).

"Criminal conversation." Against an adulterer the husband had an action at common law, commonly known as an action of criminal conversation. In form it was

(b) Robert Marys's case, 9 Co. Rep. 113a. It is held in Osborn v. Gillett (1873), L. R. 8 Ex. 88, 42 L. J. Ex. 53, that a master shall not have an action for a trespass whereby his servant is killed (diss.

Bramwell B.). It is submitted that the decision is wrong, and Lord Bramwell's dissenting judgment right. See pp. 7476, above.

(c) Blackst. Comm. iii. 140.

Criminal conversation. A husband has a right of action, either in trespass or on the case, against any one who commits adultery with his wife. Peters v. Lake, 66 Ill. 206; Coleman v. White, 59 Ind. 548; Hadlek v. Heywood, 121 Mass. 236; Johnston v. Disbrow, 47 Mich. 59; Van Vacter v. McKillip, 7 Blackf. 578; Barnes v. Allen, 30 Barb. 663.

"The action of trespass and case are concurrent remedies for this injury. And Chitty, in his work on pleadings, says that though it had been usual to sue in case, it is considered preferable to declare in trespass. But in either form of action, loss of services may be averred in aggravation of damages. And being averred, a failure to prove actual loss of services would not defeat a right of recovery." Yundt v. Hartrunft, 41 Ill. 17. In the same case the court said: "This action does not proceed upon the theory of the loss of services of the wife. It is for the injury the husband sustains by the dishonor of his bed; the alienation of his wife's affections; the destruction of his domestic comfort, and the suspicion cast upon the legitimacy of her offspring. When loss of service is claimed, damages would not be given therefor unless it is proved." With reference to this action the husband's interest is expressed by the word consortium, "the right to the conjugal fellowship of the wife, to her company, co-operation and in every conjugal relation. The loss of the consortium is presumed, although the wife may have herself been the seducer, or may not have been living

*

*

generally trespass vi et armis, on the theory that "a wife is not, as regards her husband, a free agent or separate person (d), and therefore her consent was immaterial, and the husband might sue the adulterer as he might have sued any mere trespasser who beat, imprisoned, or carried away his wife against her will. Actions for criminal conversation were abolished in England on the establishment of the Divorce Court in 1857, but damages can be claimed on the same principles in proceedings for a dissolution of marriage or judicial separation (e).

In practice these actions were always or almost always

(d) Coleridge J. in Lumley v. Gye (1853), 22 L. J. Q. B. at p. 478. Case would also lie, and the common form of declaration was for some time consid

ered to be rather case than trespass: Macfadzen v. Olivant (1805), 6 East, 387. See note (f) next page.

(e) 20 & 21 Vict. c. 85, 88. 33, 59.

with the husband. A husband who is living apart from his wife, if he has not removed his marital rights, can maintain an action, and it is not necessary for him to prove alienation of the wife's affection, or actual loss of her society and assistance." Bigaoutte v. Paulet, 134 Mass. 123. See Phillipi v. Wolf, 14 Abb. Pr. (N. S.) 196; Adams v. Main, 3 Ind. App. 232; 29 N. E. Rep. 792.

A husband may sue for criminal intercourse with his wife though he is separated from her, and before the commencement of the action she had obtained a divorce. Michel v. Dunkle, 84 Ind. 544. See Wood v. Mathews, 47 Ia. 409; Sherwood v. Titman, 55 Pa. St. 77.

And the action is not defeated by the death of the wife before the suit is brought. Cox v. Whitfield, 18 Ala. 738; Garrison v. Burden, 40 Ala. 515.

But the husband cannot maintain an action for adultery with his wife where he voluntarily agrees to it and does separate from her. Fry v. Derstler, 2 Yeates, 278. See Schorn v. Berry, 63 Hun, 110; 17 N. Y. S. Rep. 572; Cook v. Wood, 30 Ga. 891; Sherwood v. Titman, 55 Pa. St. 77.

Negligence of the husband in preventing criminal conversation with his wife, not amounting to a consent, may be shown in reduction of damages. Bunnell v. Greathead, 49 Barb. 106.

The fact that a husband cohabits with his wife, after knowledge of her adultery, is not a bar to the action of criminal conversation by him against her paramour. Verholf v. Van Houwenlengen, 21 Ia. 429. See Clouser v. Clapper, 59 Ind. 548.

Punitive damages may be recovered. Williams and Green, JJ., dissenting, Cornelins v. Hambey, 50 Pa. 359; 24 At. Rep. 515; Sturam v. Hummel, 39 Ia. 478; Peters v. Lake, 66 Ill. 206.