§ 1106. Defenses.-That the husband was privy to or connived at the intercourse is a good defense;1 or that he permitted her to follow the life of a prostitute. But mere negligence or indifference is no bar; or that the husband was cruel to his wife; or that, at and before the seduction charged, no affection existed between the plaintiff and his wife. The woman's consent is no defense, and the fact that the wife is subsequently divorced is no bar to the action; nor is the fact that the intercourse was accomplished with violence, and against her consent; nor that there was no actual loss of the wife's services.8 It is no bar to the action that, since the cause of action accrued, the wife has obtained a divorce from the plaintiff; nor that the husband has forgiven or condoned the adultery with the defendant.10

ILLUSTRATIONS. A wife obtained a divorce, the husband making no defense. He afterwards sued A for criminal conversation with his wife, alleging an act as known to him before the divorce suit. Held, that the suit against A was barred by the decree in the divorce suit: Gleason v. Knapp, 56 Mich. 291; 56 Am. Rep. 388.

§ 1107. Damages. The extent of the damages to be awarded will depend on the previous relations of the husband and wife: if they were cordial and affectionate, his injury would be great; if otherwise, his injury would be consequently small." But the husband cannot recover

7 Bigaouette v. Paulet, 134 Mass. 123; 45 Am. Rep. 307; Egbert v. Greenwalt, 44 Mich. 245; 38 Am. Rep. 260.

8 Bigaouette v. Paulet, 134 Mass. 123; 45 Am. Rep. 307; Jacobsen v. Siddal, 12 Or. 280; 53 Am. Rep. 360.

Wood v. Matthews, 47 Iowa, 409; Michael v. Dunkle, 84 Ind. 544; 43 Am. Rep. 100.

10 Verholf v. Van Honwenlengen, 21 Iowa, 429; Stumm v. Hummel, 39 Iowa, 478; Clouser v. Clapper, 59 Ind.

Dallas v. Sellers, 17 Ind. 479; 79 548. Am. Dec. 489.

6 Wales v. Miner, 89 Ind. 118.

11 Cooley on Torts, 224; Heywood, 121 Mass. 236.

Hadley v. "Any un

3

any damages for the injury to the happiness and reputation of his children or "family." The damages are in the discretion of the jury, with which the court will not interfere. Evidence of the pecuniary condition of the parties is admissible. The circumstances of the connection, viz., whether the wife was importuned by her paramour, or whether she sought or threw herself in his way, whether she was overcome by persuasion, or gave herself away willingly, are admissible in evidence in the question of damages. The bad character of the husband will not mitigate damages, unless he be guilty of infidelity or other wrong to the wife herself. But in mitigation of damages it has been held admissible to show that the plaintiff was cruel to his wife;" that she was a bad character; that the marriage was not one of affection, and had not ripened into love. Where loss of service is alleged in aggravation of damages, the failure to prove the same does not defeat the right to recover damages for the mental anguish of the husband in the dishonor of his bed, etc.9

happy relations existing between the plaintiff and his wife not caused by the conduct of the defendant may affect the question of damages, and were properly submitted to the jury; but they were in no sense a justification or palliation of the defendant's conduct. They are not allowed to affect the damages because the acts of the defendant are less reprehensible, but because the conduct of the husband is such that the injury which acts occasion is less than otherwise it might have been."

1 Ferguson v. Smethers, 70 Ind. 519; 36 Am. Rep. 186.

2 Torre v. Summers, 2 Nott & McC. 267; 10 Am. Dec. 597;

Rea v. Tucker, 51 Ill. 112; 99 Am. Dec. 539; Peters v. Lake, 66 Ill. 208; 16 Am. Rep. 593. Proof of the plaintiff's bankruptcy at the time of the trial is inadmissible on the amount of exemplary damages proper to be re

covered: Peters v. Lake, 66 Ill. 206; 16 Am. Rep. 593.

4

Ferguson v. Smethers, 70 Ind. 519; 36 Am. Rep. 186.

5 Norton v. Warner, 9 Conn. 172; Shattuck v. Hammond, 46 Vt. 466; 14 Am. Rep. 631; Van Vacter v. McKillip, 7 Blackf. 578. The plaintiff's general character is not in issue, but only his character as a husband: Norton v. Warner, 9 Conn. 172.

6 Coleman v. White, 43 Ind. 429.

Harter v. Crill, 33 Barb. 283. Proof of misconduct of the wife prior to her actual intercourse with the defendant may be given, although after the time when familiarities were proved to have taken place between the wife and the defendant: Torre v. Summers, 2 Nott & McC. 267; 10 Am. Dec. 597; Davenport v. Russell, 5 Day, 149.

8 Dauce v. McBride, 43 Iowa, 624. Yundt v. Hartrunft, 41 Ill. 10.

§ 1108. Evidence. In an action for enticing away the plaintiff's wife, the declarations of the wife are not admissible in evidence. The confessions of the wife in

an action by the husband against her seducer are not evidence against the defendant. In an action against a third party for inducing the plaintiff's husband to send her away, the declarations of the husband made in the absence of the defendant are not admissible. Written declarations by the wife not proved to have been authorized by or in the possession of defendant cannot be read in evidence against him. The wife's letters or statements may be proved to show the previous state of their relations, and of her feelings toward her husband. But not the opinion of a physician who had attended her as to her fondness for the defendant. tity of the wife may be shown.

The previous unchasEvidence of prior acts

of adulterous intercourse upon which the statute of limitations has run is admissible for the purpose of showing the intimate relations of the parties, and of corroborating the evidence introduced to establish the illicit act which is within the statute, and upon which a recovery is sought.

§ 1109. Interference with Parental Rights-In General. -A parent has a right of action for damages for being deprived of the services of his child. Loss of service to the parent may be occasioned by enticing the child away,"

1 Winsmore v. Greenbank, Willes,

577.

2 Bull. N. P. 28; Preston v. Bowers, 13 Ohio St. 1; 82 Am. Dec. 430; McVey v. Blair, 7 Ind. 590; Dance v. McBride, 43 Iowa, 624.

3 Westlake v. Westlake, 34 Ohio St. 621; 32 Am. Rep. 397.

Underwood v. Linton, 54 Ind. 468. Willis v. Bernard, 8 Bing. 376; Gilchrist v. Bale, 8 Watts, 335; 34 Am. Dec. 469; Palmer v. Crook, 7 Gray, 418.

McVey v. Blair, 7 Ind. 590.
Torre v. Summers, 2 Nott & McC.

267; 10 Am. Dec. 597; Clouser v. Clapper, 59 Ind. 548; Rea v. Tucker, 51 Ill. 110; 99 Am. Dec. 539.

8 Conway v. Nicol, 34 Iowa, 533. 9 See ante, Division I., Title Parent and Child.

10 Bundy v. Dodson, 28 Ind. 295; Everett v. Sherfey, 1 Iowa, 356; Sherwood v. Hall, 3 Sum. 127; Caughey v. Smith, 47 N. Y. 244; Stow . Heywood, 7 Allen, 118; Plummer v. Webb, 4 Mason, 380; Sargent v. Mathewson, 38 N. H. 54; Vaughan v. Rhodes, 2 McCord, 227; 13 Am. Dec. 713; Jones v. Tevis, 4 Litt. 25; 14 Am. Dec. 98.

by forcibly abducting the child,' by beating or otherwise purposely injuring the child, by a negligent injury which disables the child from labor, and in case of a female child, by seduction. Giving shelter or protection to a child to enable him to keep away from his parent is actionable. So an action has been sustained for enticing a minor child from the service of the parent, and procuring her to be married without his consent."

§ 1110. Seduction Defined-Elements of. Seduction is "the wrong of inducing a female to consent to unlawful sexual intercourse by enticements and persuasions overcoming her reluctance and scruples." The defendant must by acts and persuasion have overcome her opposition and debauched her. In Indiana, in an action brought by a woman for her own seduction, the complaint alleged that the defendant wickedly, deceitfully, and wrongfully seduced the plaintiff under a promise on his part to pay off liens on her property, furnish her money to carry on her business, and to keep and support her, in consideration that she would submit her person to his desires; that she believed and relied on these promises, and that he

1 Magee v. Holland, 27 N. J. L. 86; 72 Am. Dec. 341; Plummer v. Webb, 4 Mason, 380.

1 Hoover v. Heim, 7 Watts, 62; Cowden . Wright, 24 Wend. 429; 35 Am. Dec. 633; Whitney v. Hitchcock, 4 Denio, 461; Klugman v. Holmes, 54 Mo. 304.

3 Karr v. Parks, 44 Cal. 46. See post, sec. 1110.

Sargent v. Mathewson, 38 N. H. 54; Butterfield v. Ashley, 6 Cush. 249. Everett r. Sherfey, 1 Iowa, 356.

Hills v. Hobert, 2 Root, 48; Jones v. Tevis, 4 Litt. 25; 14 Am. Dec. 98. Contra, Hervey v. Moseley, 7 Gray, 479, the court saying: "The law of marriage entirely overrides the general principles of right of the parent to the services of the child, or the duties from one of the other as servant and master, by allowing the female child to terminate it at any moment

after she arrives at the age of twelve years, by uniting herself to some one in marriage. If the marriage of the daughter was a legal act, from the time of its consummation the daughter was legally discharged from all further duties to perform service for her parent, having assumed new relations inconsistent therewith."

7 Abbott's Law Dict. The word "seduce," when used with reference to the conduct of a man toward a woman, has a precise and determinate signification, and it is not necessary, in an information for the crime of seduction, to charge the offense in any other language: State v. Bierce, 27 Conn. 319.

8 Hogan v. Cregan, 6 Robt. 138; Delvee v. Boardman, 20 Iowa, 446; Smith v. Milburn, 17 Iowa, 30; Brown v. Kingsley, 38 Iowa, 220; Wouter v. Gerser, 9 La. Ann. 523.

2

failed to fulfill them; that they were falsely made with a view to her seduction. The court held that the action would not lie. The plaintiff's real grievance, said the court, was the defendant's failure to fulfill his promises. The plaintiff agreed to dispose of her virtue for a pecuniary consideration. Such a contract being immoral, the law will afford her no remedy. She bargained for her virtue, and if she failed to secure the price agreed upon, it is her own fault and folly, and she cannot be heard to complain.1 There is no seduction where a woman "yields through the promptings of her own lascivious desires." An action for seduction does not lie if the woman yielded because the man told her that if she did not he should go with other women, and where he informed her that he visited her to procure sexual intercourse. But in the civil action by the master or parent for loss of services it does not seem to be important by what means the seduction has been accomplished. Proof of the sexual intercourse followed by pregnancy (or other effect causing a loss of services) is sufficient. It is seduction, though the connection is accomplished by force. A woman formerly unchaste may be seduced, though this fact may, in an action under a statute brought by herself for her own seduction, affect the measure of damages. But the woman must be chaste at the time to be the subject of seduction, though she may have fallen before and repented.

3

§ 1111. Seduction Alone not Actionable. The seduction alone does not give a right of action, unless the master can show that loss of service followed as a result

1 Wilson v. Ensworth, 85 Ind. 399. Am. Rep. 104; Furmam v. Applegate, 2 Bell v. Rinker, 29 Ind. 267.

3 Baird v. Boehner, 72 Iowa, 318. Reed v. Williams, 5 Sneed, 580; 73 Am. Dec. 157; White v. Murtland, 71 Ill. 250; 22 Am. Rep. 100.

5 Leucker v. Steileu, 89 Ill. 545; 31 Am. Rep. 104.

Leucker v. Steileu, 89 Ill. 545; 31

23 N. J. L. 28; Kennedy . Shea, 110 Mass. 147; 14 Am. Rep. 584; Dalton v. Moore, 5 Lans. 454; Lawrence v. Spence, 29 Hun, 169; 99 N. Y. 669; Lavery v. Crooke, 52 Wis. 612; 38 Am. Rep. 768.

7 Smith v. Milburn, 17 Iowa, 30. 8 Wilson v. State, 73 Ala. 527.