that her offspring shall be legitimate.30

Other men

suffer in this respect from his marital breach, not one's wife. Thus stood the law with respect to the marital rights of the wife according to common law, and with us in this country until the passage of specific statutes, radically changing the legal status of the wife.

The rule prevailing at common law with respect to the right of a husband to maintain an action for injury to him in his marital rights is shown at a previous section.31 It is there seen that he could only sustain three injuries, viz.: 1. Abduction; 2. Criminal conversation; and 3. Beating or otherwise abusing her. There was no such wrong recognized as “alienation of affections," except as that may be an incident of one of the foregoing injuries, as when the wife is enticed away. "At common law, an action for the alienation of the affections alone cannot be maintained either by the husband or the wife. The alienation of the affections is merely a matter of aggravation of damages; and a complaint by a wife which charges no adultery, no procuring and enticing, or no harboring and secreting, does not state a cause of action."32

As appears in the quotation just made, the action was by the wife. The rule was the same in an action by the husband. "The loss of a wife's affections, not brought about by some act on defendant's part which necessarily caused or involved the loss of her consortium, never gave a cause of action to the husband. His wife might permit an admirer to pay her attentions, frequent her society, visit at her home, spend

30 Ante, sec. 444; Doe v. Roe, 82 Me. 503, 17 Am. St. Rep. 499, 20 Atl. 83.

31 Ante, sec. 441.

32 Houghton v. Rice, 174 Mass. 366, 75 Am. St. Rep. 351, 54 N. E. 843; Neville v. Gile, 174 Mass. 305, 54 N. E. 841.

his money upon her, and by such means alienate her affections from him, resulting even in her refusal to live with him, and, so far as she could bring it about, in the breaking up of his home, and yet, there being no 'procuring and enticing' or 'harboring and secreting' of the wife, no action lay at the suit of the husband against the man."33

§ 446. Same Continued-Extension of Right of Action in This Country. Such was the common law. Alienation of affections merely was not recognized as a distinct wrong to either party. In this country, however, the right of action has been extended so as to furnish a remedy for any conduct on the part of another, which, though the wife be not enticed away, or criminal conversation be not had with her, alienates the affections of the wife from the husband. It is even contended that debauchery and elopement, when they occur, are only the immediate and legitimate consequences of the wrong. This is an innovation. Debauchery or elopement, when present, ought to be the wrong, and alienation of affections the incident, to preserve the symmetry of our law. But it is sufficient to say that the rule is well settled in this country that whether there has been an enticement or criminal conversation, or not, an action for the alienation of the wife's affections may be maintained, the gist of which is the loss of consortium, pecuniary loss not being essential.34 His interest is expressed by

33 Lellis v. Lambert, 24 Ont. App. 653.

34 Adams v. Main, 3 Ind. App. 232, 50 Am. St. Rep. 266, 29 N. E. 792; Heermance v. James, 47 Barb. 120; Barbee v. Armstead, 10 Ired. 530, 51 Am. Dec. 404; Preston v. Bowers, 13 Ohio St. 1, 82 Am. Dec. 430 (a case of this kind, but the right of action assumed); Fratini v. Caslini, 66 Vt. 273, 44 Am. St. Rep. 843, 29 Atl. 252; Cross v. Grant, 62 N. H. 675, 13 Am. St. Rep. 607 (gist of action is loss of consortium); Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307; Holtz v. Dick, 42 Ohio St. 23, 51 Am. Rep. 791; Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385.

the word "consortium" which is the right to the conjugal fellowship of the wife, to her company, co-operation, and aid in every conjugal relation.35 The recognition of the wrong of alienation of affections, unaccompanied by adultery or enticement, is a commendable innovation upon the common law, but the rule does not everywhere prevail. The husband may recover where there has been only a partial alienation of affections,36 or even where there has not been a separation between husband and wife. The law will give redress notwithstanding the continued residence of the wife under the husband's roof. "Indeed, it has been not infrequently remarked by authors and jurists that such continued residence after the alienation has been effected, so far from leaving the husband without a good cause of action, contributes an aggravation to his injury from which an elopement might well be accepted in the nature of an alienation." 37 An affianced husband has no right of action for the seduction or alienation of the affections of the betrothed wife.38

§ 447. Same Continued-Action by the Wife.-As the trend of authority with us is to treat the consortium as the basis of the right of action for alienation of affections, it is now generally held that, under various forms of statutes, giving the wife a separate status, with right to sue, she may maintain an action for the alienation of the affections of her husband. There is no intelligent reason why she should not have the same right to sue for the loss of the society,

35 Bigaouette v. Paulet, 134 Mass. 123, 45 Am. Rep. 307.

36 Fratini v. Caslini, 66 Vt. 273, 44 Am. St. Rep. 843, 29 Atl. 252. 37 Rinehart v. Bills, 82 Mo. 534, 52 Am. Rep. 385; Heermance v. James, 47 Barb. 120, 32 How. Pr. 142; Hoard v. Peck, 56 Barb. 202. 38 Case v. Smith, 107 Mich. 416, 61 Am. St. Rep. 341, 65 N. W.

companionship, affections, and protection of her husband, as has he for a similar loss. This rule is well settled and fortified by authority.39

This doctrine is denied, however, in some statesMaine and Wisconsin-on the theory that "the loss of her husband's society is not an injury to her person, property, means of support, or character," and because, as is argued, such a right of action "would be the most fruitful source of litigation of any that can be thought of." 40 In Minnesota, a married woman is denied the right to maintain an action in the nature of criminal conversation against another.41 A wife may now, too, under the statutes above referred to, maintain an action against another who wrongfully entices her husband from her and alienates his affections.42

As the right to maintain this action on the part of the wife depends upon the purport of the statutes

39 Adams v. Main, 3 Ind. App. 232, 50 Am. St. Rep. 266, 29 N. E. 792; Reed v. Reed, 6 Ind. App. 317, 51 Am. St. Rep. 310, 33 N. E. 638; Betser v. Betser, 186 Ill. 537, 78 Am. St. Rep. 303, 58 N. E. 249; Price v. Price, 91 Iowa, 693, 51 Am. St. Rep. 360, 60 N. W. 202; Westlake v. Westlake, 34 Ohio St. 621, 32 Am. Rep. 397; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Foot v. Card, 58 Conn. 1, 18 Am. St. Rep. 258, 18 Atl. 1027; Shaddock v. Clifton, 22 Wis. 114, 94 Am. Dec. 593; Clow v. Chapman, 125 Mo. 101, 28 S. W. 328, 46 Am. St. Rep. 468, note, pp. 472-478; Williams v. Williams, 20 Colo. 51, 37 Pac. 614; Warren v. Warren, 89 Mich. 123, 50 N. W. 842; Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776; Beach v. Brown, 20 Wash. 266, 72 Am. St. Rep. 98, 55 Pac. 46; Hodgkinson v. Hodgkinson, 43 Neb. 269, 47 Am. St. Rep. 759, 61 N. W. 577; Haynes v. Nowlin, 129 Ind. 581, 28 Am. St. Rep. 213, 29N. E. 389.

40 Duffies v. Duffies, 76 Wis. 374, 20 Am. St. Rep. 79, 45 N. W. 522; Doe v. Roe, 82 Me. 503, 17 Am. St. Rep. 499, 20 Atl. 83.

41 Kroessin v. Keller, 60 Minn. 372, 51 Am. St. Rep. 533, 62 N. W. 438.

42 Bassett v. Bassett, 20 Ill. App. 543; Haynes v. Nowlin, 129 Ind. 581, 28 Am. St. Rep. 213, 29 N. E. 389; Breiman v. Paasch, 7 Abb. N. C. 249.

regulating her status in the different states, these should be consulted; the details with reference to them cannot be gone into here. It is sufficient to say that in nearly all of the states a married woman is placed in the position of a feme sole, with the right to sue. Under a statute providing that the wife may sue or defend when her husband might have done so, the right to bring the action is not conferred. 43

§ 448. Same Continued-Action Against Parents.Anyone who unlawfully interferes with the marital relations of another, by alienating the affections of husband or wife, or by enticing either away, is liable to an action. A stranger has no right to intermeddle, and if he does so voluntarily he must answer the consequences. It is universally conceded, however, that parents stand on a different ground with reference to what they may do in connection with the relations between married son or daughter. Marriage does not end the parental affection or relation. There are many instances when it may not only be the right, but the duty, of a parent to interfere and take steps for the protection of the married child. A father's house should always be open to his children, married or unmarried, as a refuge from evil and a consolation in distress. The law will very much indulge any interference on the part of parents with the marital relations of their married child, when the same is done honestly and in good faith, although it turns out to be unnecessary." 45 Some authorities even hold that

43 Smith v. Smith, 98 Tenn. 101, 60 Am. St. Rep. 838, 38 S. W. 439. 44 Modisett v. McPike, 74 Mo. 636.

45 Rabe v. Hanna, 5 Ohio, 9; Hutcheson v. Peck, 5 Johns. 196; Gernerd v. Gernerd, 185 Pa. St. 233, 64 Am. St. Rep. 646, 39 Atl. 884; Lockwood v. Lockwood, 67 Minn. 476, 70 N. W. 784; Oakman v. Belden, 94 Me. 280, 80 Am. St. Rep. 396, 47 Atl. 553.

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