against all the world; and the parents have no more right to deprive him from such society, comfort, and assistance than any others. Much will be forgiven the parents of a wife who honestly interfere in her behalf, though no occasion for interference really exists, even though it results detrimentally to her interest and happiness, as well as that of her husband. But where the motive on the part of the parents is not the protection of the wife, but, on the contrary, is hatred and ill-will toward the husband, it is no answer to his action for such interference that the offenders are his wife's parents.8 § 443. Criminal Conversation.-By common law a husband has a right of action against another for adultery or criminal conversation with his wife. The act of adultery was regarded as both a public crime and civil injury, the law awarding satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recoverable were usually large and exemplary. The action was for the redress of the civil injury, and not to punish the defendant for having broken the laws of morality and decency. The gist of the action is the loss of the society and comfort of his wife. The essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife, and to beget his own children.10 It makes no difference, so far as concerns the liability of the defendant, whether the wife consents to the criminal conversation, or whether it is against her will. An action will lie, although 8 Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791. Weedon v. Timbrell, 5 Term Rep. 360. 10 Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Fry v. Drestler, 2 Yeates, 278; Wood v. Mathews, 47 Iowa, 410; Egbert v. Greenwalt, 44 Mich. 245, 38 Am. Rep. 260, 6 N. W. 654. the intercourse is against the wife's consent and causes no actual loss of her service to the husband. But where the intercourse is forcibly obtained, the husband may show the effect of it upon the wife's body and mind, and may also show the terms upon which he and his wife lived together.11 There is no basis in justice or policy for the position that if the wrong is accompanied by circumstances of such atrocity as to elevate it to the public offense of rape, the private remedy is thereby either taken away or suspended. It is not reasonable to convert the wife's innocence into a shield to save her assailant from prosecution for his private wrong to her husband. The common law, in giving this remedy, instead of making the husband's right of action depend on his wife's having consented to her defilement, has invariably, whatever the truth might be, decisively assumed that she did not assent, but was overcome by force, and the action has been sustained just the same, whether, as matter of fact, her will concurred or she was outraged by actual violence.12 § 444. Same Continued-What Will or Will Not Bar the Action. Before a husband can complain in such an action against the adulterer, he must not himself have been guilty of such conduct as will operate as a bar to his suit. If he in any way connives in the wrong complained of, he cannot recover. 13 But condonation on the part of the husband is not a bar to 11 Jacobson v. Siddal, 12 Or. 280, 53 Am. Rep. 360, 7 Pac. 108; Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Egbert v. Greenwalt, 44 Mich. 245, 38 Am. Rep. 260; consent no defense: Wales v. Miner, 89 Ind. 118, 125. 12 3 Blackstone's Commentaries, 139; 2 Hilliard on Torts, 507; Forsythe v. State, 6 Ohio, 23. 13 Silvernali v. Westerman, 11 Luz. Leg. Reg. (Pa.) 5. 17 the action;14 nor does cohabitation after the of- 14 Stumm v. Hummell, 39 Iowa, 478; Sikes v. Tippins, 85 Ga. 16 Michael v. Dunkle, 84 Ind. 544, 43 Am. Rep. 100; Wood v. Mathews, 47 Iowa, 409. 17 Yundt v. Hartrunft, 41 Ill. 40. 18 Browning v. Jones, 52 Ill. App. 597; Fry v. Drestler, 2 Yeates, 278; Michael v. Dunkle, 84 Ind. 544, 43 Am. Rep. 100. 19 Wales v. Miner, 89 Ind. 118 (except for mitigation); Furguson v. Smethers, 70 Ind. 519, 36 Am. Rep. 186. 20 Schnell v. Blohm, 40 Hun, 378. 21 Cook v. Wood, 30 Ga. 891, 76 Am. Dec. 677. 22 Id. 23 Sanborn v. Neilson, 4 N. H. 501. 24 Hoggins v. Coad, 58 Ill. App. 58. 門 chastity,25 her misconduct prior to the act complained of,26 may also be shown. So may cruelty of the husband to his wife be shown by way of mitigation.27 It is not necessary for the husband to show that he has suffered any pecuniary damage from the loss of his wife's services, mental anguish because of the dishonor of his marriage bed being sufficient.28 It has been held that a wife whose husband is debauched and criminally known by another woman cannot maintain an action against the latter to recover damages therefor. The reasons stated for such a rule are that she may obtain a divorce; that the action by the husband for the seduction of his wife has grounds on which to rest that cannot be invoked in support of a similar action in favor of the wife. A wife's infidelity may impose upon her husband the support of another man's child, and, what is still worse, throw suspicion upon the legitimacy of his own children. This doctrine was announced in a case where the declaration charged that the defendant carnally knew her husband, thereby alienating his affections and depriving her of his comfort, society and support.29 This brings us to the question of the next section, viz., the right of husband or wife to maintain an action for mere alienation of affectionwhether the right of action for this is an incident of criminal conversation. § 445. Action for Alienation of Affections - The Wrong and Right of Action for, Discussed.-The sub 25 Harter v. Crill, 33 Barb. 283; Browning v. Jones, 52 Ill. App. 597. 26 Davenport v. Russell, 5 Day (Conn.), 145; Norton v. Warner, 9 Conn. 172. 27 Coleman v. White, 43 Ind. 429. 28 Long v. Booe, 106 Ala. 570, 17 South. 716. 29 Doe v. Roe, 82 Me. 503, 17 Am. St. Rep. 499, 20 Atl. 83; Kroessin v. Keller, 60 Minn. 372, 51 Am. St. Rep. 533, 62 N. W. 438. ject of this section is a familiar and well-understood expression in modern times, it being now generally believed that an action may be maintained by either husband or wife against another for the alienation of the affections of the complaining consort, whether there be enticement of, or criminal conversation with, the recreant consort or not. The action is said to be maintainable, though the wife, whose atfections have been alienated, has not departed from the house of her husband. The courts announcing this doctrine do so without notice of the common law, and as though there never had been any doubt but that such a right had always prevailed. The subject is thus introduced that we may have occasion to start at the beginning, and consider what the law with reference to this matter has always been, that we may see its growth, and appreciate some of the decisions touching these marital rights. The way in which the law regards the marriage relation is familiar to the reader; keeping that in mind will facilitate an understanding of the growth or development of the law relating to our subject. The wife formerly could not complain of the acts of her husband in connection with other women, except in divorce proceedings. Having no separate existence was an insurmountable obstacle to the maintenance of a civil action on her part for criminal conversation or alienation of affections. The same reasons or grounds did not exist for allowing her to maintain an action against one who had had carnal knowiedge of her husband. Such acts could only cause her mental anguish, while similar acts on her part might result in serious doubt as to the legitimacy of her children, or in imposing upon the husband the support of another man's child. Nature imposes upon her the duty of procreation, and the law requires |