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§ 1. Jurisdiction. A justice of the peace cannot take cognizance of a civil action to recover damages for criminal conversation. Code, § 2863, subd. 3.

The courts of this State may, in their discretion, entertain jurisdiction of an action to recover damages for criminal conversation where the parties are citizens of another State, actually domiciled therein when the action was brought and tried, though the injury was committed in the State of their residence and domicile. But it seems that the Supreme Court may, in the exercise of its discretion, refuse to entertain such action, and dismiss it upon its own motion. Yet the defendant is not entitled to a dismissal, as matter of right, at the close of the trial, where want of jurisdiction has not been raised by answer, by special motion, or during trial. Burdick v. Freeman, 120 N. Y. 420.

§ 2. Statute of limitations. The statute of limitations in action for criminal conversation is two years. Code, § 384.

In Curry v. Gardinier, 59 App. Div. 319, 69 N. Y. Supp. 245, 103 St. Rep. 245, the defendant pleaded the two years' statute of limitations. The complaint set out a cause of action for criminal conversation, with alienation of affection, and enticing as consequential damages. Held, that the two years' statute was properly pleaded; that the case did not come within the decision of Levy v. Harris, 29 App. Div. 453, 51 N. Y. Supp. 963, in which case two causes of action were stated, and the enticement of the plaintiff's wife was alleged, although occurring two years before the criminal conversation therein charged.

§ 3. Survival and assignment. As criminal conversation is a personal action by virtue of section 3343, subdivision 9, Code of Civil Procedure, it is among the actions which cannot be transferred, under section 1910 of the Code. The action, however, does not abate on the death of plaintiff's wife, as neither of the parties to the action has died. Yundt v. Hartrauft, 41 Ill. 9; Wilton v. Webster, 7 C. & P. 198, 32 E. C. L. 491.

Art. 3. Criminal Conversation; Elements of the Wrong.

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3. Loss of affection or society of wife or malice
of defendant not necessary

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342

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4. Consent of wife or ignorance of the marriage
no defense ...

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5. When wife is plaintiff additional facts must
be shown..

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SUBDIVISION 1.

Distinguished from Alienation of Affection, etc.

Of the action for criminal conversation Tiffany on Domestic Relations, p. 80, says: "This action does not, like the action for enticing away, harboring, or alienation of affection, rest on the loss of services of the wife, her society, or affection. But it rests upon the injury sustained by the defilement of the marriage bed, the invasion of the husband's exclusive right to marital intercourse, and the suspicion cast upon the legitimacy of offspring." Citing Reeves' Dom. Rel. (4th ed.) 90; Cooley on Torts, 324.

There is a vital distinction between the action for criminal conversation and for enticing away the wife, and a recovery for the latter will not bar a subsequent action for the criminal conversation. The court said: "The defendant injures the plaintiff anew every day he maintains the unlawful and adulterous intercourse with his wife, and so furnishes a fresh cause of action to the plaintiff with each recurring day." Schnell v. Blohm, 40 Hun, 378, citing 3 Bl. Comm. 139; Hutcheson v. Peck, 5 Johns. 205.

In Hollister v. Valentine, 69 App. Div. 582, 75 N. Y. Supp. 115, 109 St. Rep. 115, the complaint stated a cause of action both for criminal conversation and alienation of affection. The case, however, was submitted to the jury on the theory that it was for alienation of affection. The plaintiff appealed from the judgment rendered in his favor. Held, that upon such appeal he is precluded from asserting that the action was for criminal conversation, although judgment could be sustained upon that theory, but could not be sustained upon the theory on which the case was tried.

Art. 3. Criminal Conversation; Elements of the Wrong.

SUBDIVISION 2.

Formal Marriage is Necessary.

In an action for criminal conversation an actual marriage must be proved, and in these actions the cohabitation of the parties as man and wife, their declarations or admissions, the reputation of the existing marriage, or the plaintiff's acknowledgment of the woman as his wife and holding her out as such to others, and her reception in the family as such, are not sufficient to the maintenance of the suit. Dann v. Kingdon, 1 T. & C. 492, citing 2 Phil. Ev. 206; Cowen & Hill's Notes (782), 410; Morris v. Miller, 4 Burr. 2057; 2 Greenl. Ev. 49; Fenton v. Reed, 4 Johns. 53, 7 Johns. 314.

See also 3 Bl. Comm. 140, stating: "In this case * * * a marriage in fact must be proved; though generally, in other cases, reputation and cohabitation are sufficient evidence of marriage." See also Catherwood v. Cardin, 13 M. & W. 361; Campbell v. Carr, 6 U. C. Q. B. (O. S.) 482.

The action for criminal conversation may be brought even after a divorce from the wife. Wood v. Matthews, 47 Iowa, 429; Wales v. Miner, 87 Ind. 118. But see "Defenses;" "Prior Divorce."

SUBDIVISION 3.

Loss of Affection or Society of Wife or Malice of Defendant not Necessary. In an action for criminal conversation it is not necessary to show alienation of the wife's affection or loss of services, assistance, etc. These are only in aggravation of damages, and need not be shown, for the action is not based on pecuniary loss. Tiffany on Domestic Relations, 80.

In Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22, 107 St. Rep. 22, it was said: "It was only necessary for the plaintiff to maintain his action (crim. con.) to prove his marriage and the criminal intercourse between his wife and the defendant, and that it was without his consent. Upon proof of these facts he was entitled to recover at least nominal damages. The gist of the action, however, is basis for substantial damages as the husband loses the consortium - the right to the conjugal society of his wife."

Thus in Colwell v. Tinker, 169 N. Y. 531, affirming 65 App. Div. 20, 106 St. Rep. 505, the court, in discussing malice as an ingredient of the action for criminal conversation, stated: "If

Art. 3. Criminal Conversation; Elements of the Wrong.

there is such a thing as malice in law, and if it is ever presumed by reason of the act committed, it would seem to be in an action for criminal conversation. * * * A person deliberately undertaking to destroy the marital relation is guilty of a willful, wanton act, and it is not necessary to prove that he was moved by hatred, revenge, or passion toward the husband. The law in such cases implies malice."

The court in Bennett v. Bennett, 116 N. Y. 591, 27 St. Rep. 679, adopts the statement in Bigelow on Torts, at p. 153: “To entice away or corrupt the mind and affection of one's consort is a civil wrong, for which the offender is liable to the injured husband or wife. The gist of the action is not the loss of assistance, but the loss of consortium of the wife or husband, under which terms are usually included the person's affection, society, or aid."

SUBDIVISION 4.

Consent of Wife or Ignorance of the Marriage no Defense.

The consent of the wife is no defense to an action for criminal conversation. Moore v. Hammond, 119 Ind. 510; Wales v. Miner, 89 Ind. 118.

The fact that the defendant did not know that the woman with whom he had relations was the plaintiff's wife is no defense. He indulges in illicit intercourse at his peril, though ignorance of the marriage may be given in mitigation of damages. Wales v. Miner, 89 Ind. 118; Calcraft v. Harborough, 4 C. & P. 499, 19 Eccl. 494. One who commits rape is liable to this action. Egbert v. Greenwalt, 44 Mich. 245, 6 N. W. 654; Bigaoutee v. Paulett, 134 Mass. 123.

SUBDIVISION 5.

When Wife is Plaintiff Additional Facts Must be Shown.

Where the action for alienation of affection and criminal conversation is brought by the wife it must appear affirmatively that the defendant was the seducer and enticer. A case is not made out if it appears that the husband enticed the defendant into illicit intercourse with him. Churchill v. Lewis, 17 Abb. N. C. 226.

It seems that no action will lie by the wife against a woman with whom her husband has had carnal intercourse merely because of such fact, so long as he in other respects discharges his marital obligations.

Art. 4. Alienation of Affection; Elements of the Wrong.

Where the action is brought by one woman against another the gist of the action is loss of consortium, and not the mere loss of assistance, and the plaintiff cannot succeed unless she shows that the defendant was the active and inducing cause of the abandonment, and that such abandonment did not result solely from the wishes of the husband, and the fact that the husband was attracted and submitted to the intercourse is not sufficient. Romaine v. Decker, 11 App. Div. 20, 77 St. Rep. 79, 43 N. Y. Supp. 79. This case is criticised in Buchanan v. Foster, 23 App. Div. 544, 48 N. Y. Supp. 732.

Where an action is brought by a woman against another woman she must show that the defendant actually did or said something with the intent to engage the husband's affections, and to seduce him from fidelity to his wife. Whitman v. Egbert, 27 App. Div. 374, 50 N. Y. Supp. 3.

ARTICLE IV.

ALIENATION OF AFFECTION; ELEMENTS OF THE WRONG.

SUBDIVISION 1. Is a distinct wrong

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2. Loss of consortium is the gravamen of action. 345

SUBDIVISION 1.

Is a Distinct Wrong.

If one alienate the wife's affections he is liable, although there is no elopement or adultery. Rhinehart v. Bills, 82 Mo. 534.

It is not necessary to show loss of services; such loss need not be alleged or proven, but is merely a matter in aggravation. Bennett v. Bennett, 116 N. Y. 587.

SUBDIVISION 2.

Loss of Consortium is the Gravamen of Action.

Actions for alienation of affection and enticing away are generally stated to be founded upon loss of the consortium, the meaning of which term is stated in Baker v. Baker, 16 Abb. N. C. 295. In that case it was contended that while the husband may maintain an action for enticing away upon the ground that he has the right to his wife's services, that the wife has no similar action because she has no right to her husband's services. The court approves of the statements in Bigelow on Torts, 153, as follows:

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