damages, and the husband's recovery must be limited to the loss suffered intermediate the injury and death.1

The term services, when employed to indicate the ground on which the husband is allowed to maintain an action, is used in a peculiar sense, and fails to express to the common mind the exact legal idea intended by it. Whatever may have been the case formerly, or may now be the case in some states of society, service, in the sense of labor or assistance, such as a servant might perform or render, is not always given by or expected from the wife; and if an action were to put distinctly in issue the loss of such services, it might, perhaps, be shown in the most serious cases that there was really no loss at all. But it could not be reasonable that the wrong-doer should escape responsibility because the family he has wronged were in such circumstances, moved in such circles, and were subject to such claims, by reason of public position or otherwise, that physical labor by the wife was neither expected nor desired. The word service has come to us in this connection from the times in which the action originated, and it implies whatever of aid, assistance, comfort and society the wife would be expected to render to or bestow upon her husband, under the circumstances and in the condition in which they may be placed, whatever those may be. That services in the ordinary sense were not rendered at all would be immaterial and irrelevant, except as the fact might, under some circumstances, tend to show a want of conjugal regard and affection, and thereby tend to mitigate the damages.

[*227]

2

*Actions by the Wife. For an injury suffered by the wife in her person, such as would give a right of action to any other person, a suit might be instituted in the joint name of the husband and wife. This suit would be distinct from that which the husband might institute for the loss of services and expenses, and would embrace damages for physical and mental suffering. The damages recovered, however, would belong to

Hyatt v. Adams, 16 Mich. 180. See Pack v. New York, 3 N. Y. 489. 2 Perhaps if a voluntary separation has taken place between husband and wife, which, by their agreement, is to be permanent, no action at all can be sustained. Fry v. Derstler, 2 Yeates,

Dengate v. Gardiner, 4 M. & W. 6; Hyatt v. Adams, 16 Mich. 180. The wife may now sue alone for injuries. Stevenson v. Morris, 37 Ohio St. 10; Matthew v. Centr. Pac. R. R. Co., 63 Cal. 450; Bloomington v. Annett, 16 Ill. App. 199.

the husband alone. This rule appears to be changed by the statutes of some of the States, which, in excluding the husband's common law interest in the real and personal estate of the wife, are held to take from him the right to compensation for the torts suffered by her.'

For a personal tort by the husband to her person or reputation, the wife can sustain no action, and she must rely upon the criminal laws for her protection, or seek relief in separation or in proceedings for a divorce. It is also generally supposed that the wife can have no action against one who should seduce the husband's affections from her, or in any manner deprive her of his care and society.' But where, by statute, the wife is given full *dominion and control of the property pur- [*228] chased or otherwise acquired by her, the marital relation

1 Mich. Cent. R. R. Co. v. Coleman, 28 Mich. 440; Musselman v. Galligher, 32 Iowa, 383; Pancoast v. Burnell, 32 Iowa, 394; Chicago, &c., R. R. Co. v. Dunn, 52 Ill. 260; Hayner v. Smith, 63 Ill. 430; Hennies v. Vogel, 66 Ill. 401. The woman may recover for diminished capacity to labor. Jordan v. Middlesex, &c., Co., 138 Mass. 425. But in Iowa only if she has a business separate from her husband's. Dickens v. Des Moines, 37 N. W. Rep. 165. It is held in Maine that an action by husband and wife for an injury to the wife survives on her death in favor of her personal representative. Norcoss v. Stuart, 50 Me. 87. See, also, Crozier v. Bryant, 4 Bibb, 174; Pattee v. Harrington, 11 Pick. 221. At the common law the action would have abated under such circumstances, but on the death of the husband, the wife surviving, it would have survived to her.

22 Kent, 182; Reeve, Dom. Rel. 110; Lynch. Knight, 9 H. L. Cas. 577. This was an action by the wife, the husband being joined for conformity, against one who had said of her that she was "almost seduced" by a third person named, before her marriage, in consequence of the utter

fng of which words her husband refused to live with her. The special damage alleged was the loss of the consortium of the husband. The court of Queen's Bench in Ireland sustained the action, and its judgment being affirmed in the Exchequer Chamber by a divided court, was removed thence to the House of Lords. Lord Chancellor CAMPBELL held that the action might have been maintained had the act of the husband, in refusing to live with his wife, been reason able under the circumstances, which, in his opinion, it was not. Lord CRANWORTH expressed his concurrence, but Lord WENSLEYDALE denied that an action for the loss of consortium from the wrongful act of the defendant would lie in any case. The judgment was reversed. We see no reason why such an action should not be supported, where, by statute, the wife is allowed, for her own benefit, to sue for personal wrongs suffered by her; and it is held she may maintain an action in her own name for alienating the husband's affections and causing a separation. Breiman v. Paasch, 7 Abb. N. C. 249; Warner v. Miller, 17 Abb. N. C. 221; Jaynes . Jaynes, 39 Hun, 40; Mehrhoff v.

would not protect the husband against an action for any unlawful interference with the property.' But even under these statutes the wife cannot maintain an action against her husband for a personal injury. Even after divorce the wife cannot sue the husband for a personal tort committed by him upon her while the relation existed."

Action by the Parent: The injury which one may suffer in the relation of parent seems, at the common law, to be limited to an action for the recovery of damages for being deprived of the child's services. The action is therefore planted rather upon a loss in the character of the master of a servant than in that of the head of a family. This sometimes leads to results which are extraordinary, for it seems to follow, as a necessary consequence, that if the child, from want of maturity or other cause, is incapable of rendering service, the parent can suffer no pecuniary injury, and therefore can maintain no action when the child is abducted or injured. Such have been the decisions."

Mehrhoff, 26 Fed. Rep. 13. So if the husband sends away the wife. Westlake v. Westlake, 34 Ohio St. 621. But in Indiana it is held otherwise on the ground that it is not an injury to the person. Logan v. Logan, 77 Ind. 558.

Emerson v. Clayton, 32 Ill. 492; Martin v. Robson, 65 Ill. 129; Chestnut v. Chestnut, 77 Ill. 346; Starkweather v. Smith, 6 Mich. 377; Larison v. Larison, 9 Ill. App. 27. She may maintain replevin if living apart from him. White . White, 58 Mich. 546; Howland v. Howland, 20 Hun, 472. The husband, where such statutes exist, cannot bring trover against a third person for the conversion of the wife's property. Taylor v. Jones, 52 Ala. 78. The husband may bring replevin against his wife. Carney v. Gleissner, 62 Wis. 493. But, in Michigan, he may not abandon her and obtain by replevin household goods, exempt from execution and on which a mortgage is not valid without his

wife's signature. Smith v. Smith, 52 Mich. 538.

2 Peters v. Peters, 42 Iowa, 182; Longendyke v. Longendyke, 44 Barb. 366; Schultz v. Schultz, 89 N. Y. 644. And it seems the husband is still liable for the carrying on by the wife of an illegal business on her own account. Commonwealth v. Barry, 115 Mass. 146; S. C. 2 Green Cr. Rep. 285, and note.

3 Longendyke v. Longendyke, 44 Barb. 366; Peters v. Peters, 42 Iowa, 182; Abbott o. Abbott, 67 Me. 304; Libby v. Berry, 74 Me. 286; Nickerson v. Nickerson, 65 Tex. 281; Phillips v. Barnet, 1 Q. B. Div. 436; S. C. 17 Moak, 100. These were trespass for assault and battery committed while the marriage relation existed, and action brought after divorce. Freethy v. Freethy, 42 Barb. 641, was an action of slander brought under like circumstances.

4 Hall v. Hollander, 7 D. & Ry. 133; S. C. 4 B. & C. 660; Eager v. Grim

*Loss of service to the parent may be occasioned by [*229] enticing the child away,' by forcibly abducting the child,' by beating or otherwise purposely injuring the child,' by a negli gent injury which disables the child from labor, and in case of a female child, by seduction. In some of these cases there may be two wrongs: One to the parent, in depriving him of the child's services; and one to the child, to his personal injury. But the right of action in each, being distinct rights, cannot be joined.5

Where the charge is that defendant has enticed the child away from the parent, his motive for his action is important, and may sometimes furnish him with justification. Whatever induces the child to leave the parent, or, after leaving, to remain away from him, may in law constitute enticement; but to receive and shelter a child from parental abuse, may sometimes be a moral duty, and therefore justifiable. In New Hampshire it has been said that if one give protection and shelter to a child, with a view or intent of enabling or encouraging him to keep away from his father, or with the knowledge that it aided or encouraged him to

keep away, this would be wrongful and actionable con[*230] duct.1 A similar rule has been laid down in Iowa, where one who had employed a runaway child, without knowledge of his misconduct, was held liable for retaining him in his service after notice that the father objected, but not before."

In Connecticut it was held, at an early day, that the father might sustain an action against one who enticed his minor daughter from his service, and procured her to be married to another person without his consent. The marriage, however, was averred to be fraudulent, and to have been procured in order to obtain the discharge of a relative of the defendant from a prosecution for bastardy; and it was also averred that the mar riage had been annulled by the legislature for the fraud.' In Kentucky, where no fraud in the marriage was averred, it was decided that the action might be sustained for enticing the minor daughter from her mother's service and procuring her to be married, but that the recovery of damages must be restricted to the time which elapsed previous to the time when the marriage actually took place. In Massachusetts it is denied with much good reason that any such action can be maintained—the girl being of the age of legal consent-even though by statute the conduct of the defendant would have been punishable as a crime. The reason is tersely and clearly stated in the opinion: "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 to the

1 Sargent v. Mathewson, 38 N. H. 54.

2 Everett . Sherfey, 1 Iowa, 356. See, to the same effect, Butterfield v. Ashley, 6 Cush. 249.

3 Hills. Hobert, 2 Root, 48 (1793).

Jones v. Tevis, 4 Litt. 25 (1823.) Hervey . Moseley, 7 Gray, 479. See, also, Goodwin v. Thompson, 2 Greene (Iowa), 329; Holland v. Beard, 59 Miss. 161.