a "power were given to her. Whether a power would suffice is not settled. This was a reactionary statute, and out of harmony with the general progress of the law. It was repealed in 1849.1 At present a married woman has in New York the power to dispose of all her property by will, unless there be some restraint by agreement or statute. It is, however, necessary to be familiar with the former law to solve questions arising while it was in force.

Right of either party to the society of the other. There is no direct method in this country by which a court can compel a wife to reside with her husband. The writ of habeas corpus cannot be used for this purpose.2 In England, a suit could be maintained in the ecclesiastical court for "the restitution of conjugal rights." The same rule applies to the existing divorce court. (a) Its object is to compel a deserting party to return to matrimonial cohabitation. Nothing can be pleaded as a bar to such a suit, except such facts as would entitle the party defendant to a decree for judicial separation,3 or to a divorce for the wife's adultery. This proceeding is not known in this country. If a husband use forcible means to compel a wife to live with him he may be resisted as a wrong-doer. (b)

A husband will have an action against a person who wrongfully entices his wife away from him, or "harbors " her, so that she may not return. (c) The basis of the action is a wrongful intent. The word "harboring" involves active interference, and does not refer to the mere act of providing a wife with food and shelter from motives of affection or humanity. A father may be liable as well as a stranger, though a stronger case would have to be made out against him." Thus he would not be

1 Laws of 1849, ch. 375. See Wadhams v. Am. Missionary Soc., 12 N. Y. 415. 2 People v. Mercein, 8 Paige, 47. 3 Burroughs v. Burroughs, 2 Sw. & T. 303.

4 Hope v. Hope, 1 Sw. & T. 94.

(a) For examples of such suits see Smith v. Smith, L. R. 15 P. D. 47; Field v. Field, L. R. 14 P. D. 26; Mason v. Mason, 61 L. T. R. 304.

Pillow v. Bushnell, 5 Barb. 156.

6 Hutcheson v. Peck, 5 Johns. 196; Schuneman v. Palmer, 4 Barb. 225; Bennett v. Smith, 21 Barb. 439; Barnes v. Allen, 30 Barb. 663; White v. Ross, 47 Mich. 172.

the alienation of his affection. Bennett v. Bennett, 116 N. Y. 584; Baker v. Baker, 16 Abb. N. C. 293; Jaynes v. Jaynes, 39 Hun, 40; Breiman v. Paasch, 7 Abb.

(b) The Queen v. Jackson, [1891], 1 Q. N. C. 249; Haynes v. Nowlin, 129 Ind. B. 671.

(c) Since the enactment of statutes allowing the wife to sue in her own name for injuries suffered to person, property, or character, an action may be maintained in most of the States of the Union by the wife for loss of her husband's society and

581; Warren v. Warren, 89 Mich. 123; Warner v. Miller, 17 Abb. N. C. 221; Churchill v. Lewis, Id. 226; Foot v. Card, 58 Conn. 1; contra, Duffies v. Duffies, 76 Wis. 374; Van Arnam v. Ayres, 67 Barb. 544; Doe v. Roe, 82 Me. 503.

liable if he acted in good faith, believing mistakenly that she was cruelly treated. It has been held that a husband may maintain an action against a druggist for clandestinely selling to his wife from time to time quantities of laudanum to be used as a beverage, to the detriment of her health. 2

If the wife be injured by a third person, so that the husband loses her services or society, he has a cause of action for loss of service. She may, under the recent statutes, sue for the personal injury sustained by herself without joining the husband's name. If the injury caused instantaneous death, no action will lie by the husband, unless there be a statute allowing it. Should there be an interval between the injury and the death, during which the husband lost her services and society, there would be a cause of action in his favor. On similar grounds, the husband will have an action against an adulterer for the seduction of his wife, in which exemplary damages may be recovered.5

Rights of the parties to a marriage under the "Civil Damage Act." -The phrase "Civil Damage Act" is in common use to indicate statutes of recent origin prevailing in a number of the States, giving to husband or wife, parent or child, the right to recover damages for an injury done by an intoxicated person to one standing either in marital or filial relations, from the person who sold or gave the intoxicating liquors to the wrongdoer. In some cases the statute includes the owner of the premises where the liquor is sold. Though this legislation extends to parent and child as well as husband and wife, yet the decisions are much the most numerous where the wife is the injured person, and on that account the subject is considered now. The statutes in the various States are not identical in language, though they bear a close resemblance. (a)

The following principles of a general nature have been decided under these acts:

(1) This legislation is not unconstitutional. The State Legislature, having control of the subject of the traffic in intoxicating liquors, may make such regulations as are in its judgment best calculated to prevent the evils resulting from intoxication,

1 Smith v. Lyke, 13 Hun, 204.

2 Hoard v. Peck, 56 Barb. 202.

8 This point in its general statement belongs under the topic of "Injury caus

ing death."

4 Philippi v. Wolff, 14 Abb. Pr. N. s. 196.

5 Smith v. Masten, 15 Wend. 270.

6 For the New York Statute, see Laws of 1873, ch. 646.

(a) See also Laws of 1892, ch. 401, § 40, and ch. 403, § 2.

and accordingly to make a liquor seller responsible for consequential damages resulting from the sale. 1

3

(2) The statute in some States permits the action to be brought against the seller and the owner of the premises on which the sale is made. (a) The seller will be liable even though the liquor be sold by the bartender against his instructions.2 The owner is not made liable unless he knew of the sale of ardent spirits on the premises, or permitted it. (b) It is not necessary, however, that the strict relation of landlord and tenant exist. The owner will be liable if it appear that he knowingly permitted the sale on the premises. Where notice is required to the liquor seller, as in some statutes, it is enough to follow the substance of the statute without using its very language.5 (c)

(3) The injury done by the sale may be of three kinds: to the person, to the property, or to the means of support. The principal decisions have been made upon the "means of support." This does not mean merely a cause of action existing against the intoxicated person, and extended by the statute to include the seller, etc., but it embraces a wholly new cause of action. must be made to appear that the claimant had his means of support so far reduced as no longer to have adequate means of maintenance. A wife may maintain the action on this basis. So also may a husband for injury to his "means of support" by the intoxication of his wife. 8

It

If death results, there may be, according to some authorities, a sufficient injury to "the means of support" by the death to make the action maintainable. The Massachusetts court does

1 Bertholf v. O'Reilly, 74 N. Y. 509. 2 Smith v. Reynolds, 8 Hun, 128; George v. Gobey, 128 Mass. 289.

8 Mead v. Stratton, 8 Hun, 148; Loan v. Etzel, 62 Iowa, 429. This rule should only be applied to those who control the letting of the property. Castle v. Fogerty, 19 Ill. App. 442.

4 Mead v. Stratton, 87 N. Y. 493; Bertholf v. O'Reilly, 8 Hun, 16; affirmed, 74 N. Y. 509.

Kennedy v. Saunders, 142 Mass. 9; construing Pub. Stats. ch. 100, § 25. See also Tate v. Donovan, 143 Mass. 590.

(a) Under some statutes the liquor seller's bondsmen are made liable. Wardell v. McConnell, 23 Neb. 152; Doty v. Postal, 87 Mich. 143.

6 Volans v. Owen, 74 N. Y. 526.

7 Hill v. Berry, 75 N. Y. 229; Quain v. Russell, 8 Hun, 319; s. c. 12 Id. 376; Schneider v. Hosier, 21 Ohio St. 98.

8 Moran v. Goodwin, 130 Mass. 158. 9 Jackson v. Brookins, 5 Hun, 530; Mead v. Stratton, 87 N. Y. 493; Davis v. Standish, 26 Hun, 608. This rule has even been extended to the case of the suicide of the intoxicated person. Blotz v. Rohrbach, 42 Hun, 402; Neu v. McKechnie, 95 N. Y. 632.

of the letting is imputable to the landlord. Hall v. Germain, 131 N. Y. 536.

(c) Notice to the liquor seller is now required in New York. Laws of 1892, ch.

(b) Knowledge of the agent at the time 401, § 40, and ch. 403, § 2.

not follow this line of decisions. The theory of the New York court is that it is not essential to show that the act of the intoxicated person causing the injury was the natural, reasonable, or probable consequence of the intoxication. (a) It is enough to show that the act was done while the person was intoxicated in whole or in part by liquors sold by the defendant. The intoxicated person may, accordingly, commit suicide, and so deprive his wife of the "means of support," or he may murder another, and so deprive that person's wife of the "means of support." In either case, the liquor seller will be liable, and his liability is not affected by the fact that the intoxicated person was committing a crime.2 Similar principles have been applied in favor of the intoxicated person himself, where he became frozen while intoxicated. 3

(4) A difficult question is raised where the intoxication is created by the sales or gifts of several distinct persons, no one of which is sufficient, while each contributes to the result. The New York statute seems to provide for this case by declaring that the person shall be liable who caused the intoxication "in whole or in part." The correct rule would seem to be that either of the sellers is liable, and that he cannot defend himself by urging that he did not wholly cause the drunkenness. Any such construction would greatly impair the beneficent effect of the statute. Some courts hold that the sellers in such a case may be sued jointly.5 This principle has not been adopted in New York. The wife and the children may sustain distinct injuries under this class of statutes. In such a case, a recovery by the wife would not preclude an action in behalf of the children.

(5) The seller will be equally liable whether he sell with or without a license. (b) If he have a license he runs a risk that the liquor sold may, either in whole or in part, intoxicate the purchaser; in which case he must submit to an action for resulting damages. There is, however, this distinction, that if he

1 Barrett v. Dolan, 130 Mass. 366.

2 Neu v. McKechnie, 95 N. Y. 632. 8 Buckmaster v. McElroy, 20 Neb. 557. Bryant v. Tidgewell, 133 Mass. 86; Steele v. Thompson, 42 Mich. 594; Boyd v. Watt, 27 Ohio St. 259.

(a) It must appear, however, that the liquor was furnished to the individual whose intoxication caused the injuries complained of. Dudley v. Parker, 132 N. Y. 386.

5 Rantz v. Barnes, 40 Ohio St. 43; O'Leary v. Frisbey, 17 Ill. App. 553; Roose v. Perkins, 9 Neb. 304.

6 Jackson v. Brookins, 5 Hun, 530.

(b) This is not the rule in all States. In Michigan a recovery cannot be had unless the liquor causing the intoxication was furnished in violation of law. Peacock v. Oaks, 85 Mich. 578.

sell without a license, he may be liable to exemplary damages. This is particularly true if he has sold for a long time without a license. 1

It goes

The theory of this legislation appears to be sound. upon the ground that the domestic relations create rights in favor of each party to the relation, which in certain cases are not dependent for their existence on the absence of fault in the other party, but which may be enforced against a third person, notwithstanding the wrong, neglect, or consent of the other party to the relation. It is on this ground that a father may sue for the seduction of a daughter, or a master for the seduction of a servant, or a husband for the seduction of a wife, notwithstanding the consent or participation of each in the wrong. This statute is an extension of an existing principle to a new class of instances growing out of the sale and acceptance of intoxicating liquors, and the intoxication resulting from their use, and the consequent injury to one standing in one of the relations already referred to. The cases which permit the intoxicated party himself to sue proceed on a different and more questionable principle.

The wife's right to protection from personal violence. — It was formerly laid down as a rule that the husband might correct his wife by the infliction of blows to a moderate extent.2 This rule is, however, contrary to the general tenor of professional and judicial opinion at the present day. The wife may compel the husband to give bonds to keep the peace under such circumstances. She cannot, however, bring a civil action for damages against him for an assault or other personal wrong. A wife, after being divorced from her husband, cannot sue him for an assault committed during the marriage. Should she be unlawfully imprisoned by him, the court will grant her the writ of habeas corpus.

A married woman's right to her husband's surname. -Marriage confers a name upon a woman which becomes her actual name, and she can only obtain another by reputation of such a character and extent as to obliterate her married name.7

1 Neu v. McKechnie, 95 N. Y. 632. 2 Bracton says a man's "wife is under the rod." Vol. I. 47. Twiss' Ed. A. D. 1878. This doctrine was followed in North Carolina in a recent case to this extent, that a man may whip his wife with a switch as large as his finger, but not larger than his thumb, without being guilty of an assault. State v. Rhodes, Phillips Rep. (N. C.) 453 (1868).

People v. Winters, 2 Park. Cr. 10. 4 Schultz v. Schultz, 89 N. Y. 644, reversing Schultz v. Schultz, 27 Hun, 26. 5 Phillips v. Barnet, L. R. 1 Q. B. D. 436. 6 In re Cochrane, 8 Dowl. 630. The circumstances under which the court will refuse the writ are stated in this case. See also Lord Vane's Case, 13 East, 171, n. 7 Fendall v. Goldsmid, L. R. 2 P. D. 263.