a proximate, legal consequence of such injury is the expense to which the husband is put in the alleviation of her sufferings and the cure of her hurts; and such expense is a loss to the husband for which the wrongdoer is answerable to him in charges. 15 Am. & Eng. Ency. Law, p. 861; Henry and Wife v. Klopfer, 147 Pa. St. 178; Tutle v. C. R. I. & P. R. R. Co., 42 Iowa, 518; Filer v. N. Y. R. R. Co., 49 N. Y. 47; Douglas v. Gausman, 68 Ill. 170. The husband also, of course, has a legal right to the society of the wife, involving all the amenities and conjugal incidents of the relation. This right of society may be invaded by an act which while leaving to the husband the presence of the wife yet incapacitates her for the marital companionship and fellowship, and such incapacity may be deprivation of her society differing in degree only from total deprivation by her death. For such impairment, so to say, of the wife's society, of his right of consortium, such deprivation of the aid and comfort which the wife's society, as a thing different from mere services, is supposed to involve, he is entitled to recover. ... Upon the theory of the case, viz., that plaintiff suffered the loss or impairment of his wife's services and society in consequence of the injuries inflicted upon her, the extent and duration of her injuries had a direct bearing upon the extent of his loss to be measured by the jury in their assessment of his damages; and the Court properly received evidence to the effect that she was still suffering from the injuries. It is quite true that the rights of action for this suffering in and of itself is by statute vested in her; but that is not to say that the husband is without redress for the damnifying collateral consequences of her hurts to him. . . . HARALSON, DOWDELL, and DENSON, JJ., concurring. 83. WINSMORE v. GREENBANK COMMON PLEAS. 1745 Willes, 577 In order to understand the grounds of the motion in arrest of judg ment, it is necessary to state some parts of the record. The declaration contained four counts. The first stated that on the 1st of January, 1741, Mary, then and until the 24th of December, 1742, being the wife of the plaintiff (but since deceased), unlawfully and without his leave and against his consent departed and went away from him, &c., and lived and continued absent and apart from him from thence until and upon the 8th of August, 1742; and during the said time that the said Mary so lived and continued absent, a large estate, both real and personal, to the value of £30,000, was devised to her by W. Worth, D.D., her late father, for her sole and separate use, and at her sole and separate disposal; that thereupon she was desirous of being and intended to be again reconciled to the plaintiff, and to live and cohabit with him, whereby he would have had and received the benefit and advantage of the said real and personal estate (the plaintiff being willing and desirous to be reconciled, &c.), yet the defendant, knowing the said premises and having notice of the said Mary's intention, but contriving to injure the plaintiff, and to prevent Mary, the wife, from being reconciled to him, &c., and to prevent the plaintiff receiving any advantage from the said real and personal estate, &c., on the 8th of August, 1742, unlawfully and unjustly persuaded, procured, and enticed the said Mary to continue absent and apart from the plaintiff, and to secrete, hide, and conceal herself from the plaintiff, by means of which persuasion, procuration, and enticement the said Mary, from the said 8th of August, 1742, until the time of her death on the 24th of December, 1742, continued absent and apart, and secreted herself, &c.; whereby the plaintiff during all that time totally lost the comfort and society of his said wife, and her aid and assistance in his domestic affairs, and the profit and advantage that he would and ought to have had of and from the said real and personal estates, &c., and was put to great charges and expenses in endeavoring to find out and gain access to his said wife, in order to persuade and procure her to be reconciled to him. The defendant pleaded not guilty; and the jury found a verdict for the plaintiff on the three first counts, and gave £3,000 damages, and a verdict for the defendant on the last. This case was argued on the 18th and 26th of November, 1745, and the 29th of January following, by Skinner and Willes, King's Serjeants and Draper and Heywood, Serjeants, for the defendant, in support of the motion in arrest of judgment, and by Prime and Birch, King's Serjeants, and Bootle, Serjeant, for the plaintiff; and on the 1st of February following the rule to arrest the judgment was discharged. WILLES, Lord Chief Justice, delivered his opinion, to the following effect: Several objections have been taken by the defendant to this declaration in arrest of judgment: two general ones, and three to the particular penning of the declaration. I admit the rules laid down in most of the cases that were cited, and therefore shall have occasion to mention only a few of them, because they are not applicable to the present case. The first general objection is, that there is no precedent of any such action as this, and that, therefore, it will not lie; and the objection is founded on Litt. § 108, and Co. Litt. 81 b, and several other books. But this general rule is not applicable to the present case; it would be if there had been no special action on the case before. A special action on the case was introduced for this reason, that the law will never suffer an injury and a damage without a remedy; but there must be new facts in every special action on the case. The principal objections were to the first count, and they were three. First, that procuring, enticing, and persuading are not sufficient, if no ill consequence follows from it: . . . Thirdly, that no notice or request is laid, which is necessary in the case of the continuance, though it be not necessary if the defendant had at first persuaded her. To the first there were two answers. First, That here is a consequence laid, that by means thereof the plaintiff lost the comfort and society of his wife, and the profit and advantage of her fortune, &c. Secondly, Whether "enticing" goes so far or not I will not nor need determine, because "procuring" is certainly "persuading with effect." I need not cite any authority for this; because every one who understands the English language knows that this is the common acceptation of that word. . As to the [third objection,] . . . that reason does not extend to the present case; because every moment that a wife continues absent from her husband without his consent, it is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it to be so. I can see no reason to arrest this judgment, and therefore I am of opinion that the rule must be discharged. ABNEY, J., and BURNETT, J., gave their opinions seriatim, agreeing with the Lord Chief Justice. Rule discharged. 84. YUNDT v. HARTRUNFT SUPREME COURT OF ILLINOIS. 1866 41 Ill. 9 THIS was an action of trespass vi et armis, brought by Abraham Hartrunft, in the Superior Court of Chicago, against Allen C. Yundt. The declaration counts for the seduction of plaintiff's wife by defendant. The plea of not guilty was filed. Afterward the venue was changed to the Kane Circuit Court. A trial was had by the Court and jury, which resulted in a verdict against the defendant, and the jury assessed the damages at the sum of $5,000. A motion for a new trial was entered, but was overruled by the Court, and judgment was rendered upon the verdict. Defendant brings the case to this Court on appeal, and asks a reversal on various grounds. The facts necessary to an understanding of the case appear in the opinion of the Court. Messrs. Miller, Van Arman, and Lewis, for the appellant. Mr. Chief Justice WALKER delivered the opinion of the Court. This was an action of trespass vi et armis, commenced in the Superior Court of Chicago by appellee against appellant, for seducing and debauching his wife. The case was taken by a change of venue to the Kane Circuit Court. A trial was afterward had in that court by a jury, which resulted in a verdict in favor of appellee for the sum of $5,000. A motion for a new trial was entered, which was overruled by the Court, and judgment rendered on the verdict. And the cause is brought to this Court by appeal, and various errors are assigned upon the record. But appellant's counsel have confined their argument principally to the overruling of the motion for a new trial and the questions involved in that motion. . . . It appears from the evidence, that appellee and wife were married, in the State of Pennsylvania, some time previous to their removal to this State. It also appears, that he went to California, some time in the year 1862, leaving his wife and children in Illinois. He returned to this State in the summer of 1864. The criminal conversation with appellee's wife is alleged to have taken place while he was absent in California. Appellant urges that appellee and his wife had permanently separated, and that appellee had deserted her. This was a question for the determination of the jury from all of the evidence in the case; and, inasmuch as the case will be submitted to another jury, it would be improper for us to express any opinion on the weight of evidence on this question. In this class of cases, the loss of services may be the alleged injury, but the injury to the character of the family is the real ground of recovery when the cause of action relates to the wife or daughter. The degradation which ensues, the distress and mental anguish which necessarily follow, are the real causes of recovery. It has not been the policy of the law to confine the recovery by the injured party to the precise amount of money which he has proved he has lost by the deprivation of labor ensuing from the injury. But the law has, in a more just spirit, allowed a recovery for injury to family reputation and anguish growing out of the injury. Nor is it true, that, because appellee was absent from home, he therefore could have sustained no loss of service by reason of his wife being debauched. He had a right to her services in the nurture of his children, as well as a virtuous example to them by her. He had the right to the teachings of a virtuous and not of a depraved mother to his children. If he intrusted their care to a virtuous and undefiled mother, and appellant corrupted and debased her, he thereby became liable to appellee for the neglect to her family. and her example to her children. And the circumstance that his wife died did not deprive him of his right of recovery. . . After a careful examination of all the instructions, we perceive no error in giving the others asked by the appellee. But it is insisted that the Court erred in refusing this instruction, asked by appellant: "That, if, from the evidence, the jury believe, that, at the time of the alleged criminal intercourse between the defendant and plaintiff's wife, the plaintiff was living in the State of California, separated from his wife, and that no pregnancy resulted from such criminal intercourse, and that no physical injury whatever to the wife, or loss of her service or assistance to the husband was occasioned by or resulted from such criminal intercourse, they the jury ought not to allow the plaintiff damages on account of loss of such service or assistance." This action does not proceed upon the theory of the loss of service 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. 2 Starkie's Ev. 440. The actions 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 service may be averred in aggravation of damages. And being averred, a failure to prove actual loss of service would not defeat a right of recovery. 1 Chitt. Pl. 167. That is only alleged as aggravation and does not affect the question one way or the other. When loss of service is claimed, damages should not be given therefor unless it is proved. And whether there is such proof is a question for the jury to determine. This instruction should, therefore, have been given. For the various errors above indicated, the judgment of the Court below must be reversed and the cause remanded. Judgment reversed. 85. RINEHART v. BILLS SUPREME COURT OF MISSOURI. 1884 82 Mo. 534 MARTIN, C. On the 26th day of January, 1880, the plaintiff filed a complaint in equity against the defendant. In this complaint another party was originally included as defendant, but was discharged before trial. The object of the suit was to enjoin the transfer and collection of a certain promissory note in the sum of $550, made by the plaintiff, to enforce its surrender and cancellation, and obtain a judgment for a part payment indorsed upon it. It is alleged in the petition that the note was without consideration, and was obtained by false representations, by threats of suit, and of personal violence. The defendant, in his answer, denied the allegations to the petition and recited the facts constituting the consideration of the note, which, in his own language, read as follows: "Defendant, further answering, says: That on or about the 11th day of November, 1879, he learned for the first time that plaintiff, for a long time thereto, to wit, for eighteen months, then last past, had been making love to his (defendant's wife), whenever and wherever he could meet her. That he had plied every art and used every device in his power to win her love and esteem and |