# Tinker v. Colwell

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United States Supreme Court
193 U.S. 473
Tinker v. Colwell
Argued: February 26, 1904. --- Decided: March 21, 1904
The plaintiff in error applied to the supreme court of the state of New York for an order discharging of record a certain judgment of that court obtained against him by the defendant in error. The application was denied (35 Misc. 330, 6 Am. Bankr. Rep. 434, 71 N. Y. Supp. 952), and the order denying it was affirmed by the appellate division of the supreme court (65 App. Div. 20, 72 N. Y. Supp. 505), and subsequently by the court of appeals (169 N. Y. 531, 58 L. R. A. 765, 62 N. E. 668), and the latter court thereupon remitted the record to the supreme court, where it remained at the time plaintiff in error sued out this writ to review the order of the court of appeals.
The application was made under § 1268 of the New York Code, which provides that any time after one year has elapsed since a bankrupt was discharged from his debts, pursuant to the act of Congress relating to bankruptcy, he may apply, after notice to the plaintiff in the judgment, and upon proof of his discharge, to the court in which the judgment was rendered against him for an order directing the judgment to be canceled and discharged of record. The section further provides that if it appear on hearing that he has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order must be made directing the judgment to be canceled and discharged of record.
The application in this proceeding was made upon a petition by plaintiff in error, which showed that Frederick L. Colwell, the plaintiff in the action, had, on February 9, 1897, recovered a judgment for $50,000 and costs against the petitioner for damages for his criminal conversation with the plaintiff's wife; that the judgment was duly docketed in the county of New York on that day; that on September 13, 1899, petitioner filed his petition in the district court of the United States for the southern district of New York, praying that he might be adjudged a bankrupt, and on that day he was adjudged a bankrupt by the district court, pursuant to the act of Congress relating to bankruptcy; on February 2, 1900, the petitioner was discharged by the district court of the United States from all debts and claims which were made provable by the act of Congress against his estate, and which existed on September 13, 1899; that the judgment above mentioned was not recovered against him for a wilful and malicious injury to the person or property of the plaintiff, within the meaning of the act of Congress, and that, by virtue of the discharge in bankruptcy, the petitioner had been duly released from that judgment.
In granting the discharge under the bankrupt act (which was opposed by the plaintiff in the judgment), the district judge refused to pass upon the question whether the judgment was thereby released, although it appears that he thought it was. 99 Fed. 79.
Mr. Nelson Smith for plaintiff in error.
[Argument of Counsel from pages 475-476 intentionally omitted]
Messrs. Thomas McAdam and George Newell Hamlin for defendant in error.
[Argument of Counsel from pages 476-480 intentionally omitted]
Statement by Mr. Justice Peckham:
The question herein arising is whether the judgment obtained against the defendant, petitioner, for damages arising from the criminal conversation of the defendant with the plaintiff's wife, is released by the defendant's discharge in bankruptcy, or whether it is excepted from such release by reason of subdivision 2, § 17, of the bankruptcy act of July 1, 1898, which provides that 'a discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as . . . (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another; . . .' [30 Stat. at L. 550, chap. 541, U.S.C.omp. Stat. 1901, p. 3428].
The averment in the petition, that the judgment was not recovered for a wilful and malicious injury to the person or property of the plaintiff in the action, is a mere conclusion of law, and not an averment of fact.
If the judgment in question in this proceeding be one which was recovered in an action for wilful and malicious injuries to the person or property of another, it was not released by the bankrupt's discharge; otherwise it was.
We are of opinion that it was not released. We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act; because the wife is in law incapable of giving any consent to affect the husband's rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and wilful. A judgment upon such a cause of action is not released by the defendant's discharge in bankruptcy.
The assault vi et armis is a fiction of the law, assumed at first, in early times, to give jurisdiction of the cause of action as a trespass, to the courts, which then proceeded to permit the recovery of damages by the husband for his wounded feelings and honor, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.
Subsequently the action of trespass on the case was sustained for the consequent damage, and either form of action was thereafter held proper.
Blackstone, in referring to the rights of the husband, says (3 Bl. Com. edited by Wendell, page 139):
'Injuries that may be offered to a person, considered as a husband, are principally three: abduction, or taking away a man's wife; adultery, or criminal conversation with her; and beating or otherwise abusing her. . . . 2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary.'
Speaking of injuries to what he terms the relative rights of persons, Chitty says that for actions of that nature (criminal conversation being among them) the usual, and, perhaps, the more correct, practice, is to declare in trespass vi et armis and contra pacem. 1 Chitty, Pl. [2 vol. ed.] 150, and note h.
In Macfadzen v. Olivant, 6 East, 387, it was held that the proper action was trespass vi et armis, for that the defendant with force and arms assaulted and seduced the plaintiff's wife, whereby he lost and was deprived of her comfort, society, and fellowship, against the peace and to his damage. Lord Ellenborough, C. J., among other things, said:
'Then the question is, whether this can be an action on the case or an action of trespass and assault. And it is said that the latter description only applies to personal assaults on the body of the plaintiff who sues; but nothing of that sort is said in the statute. No doubt that an action of trespass and assault may be maintained by a master for the battery of his servant per quod servitium amisit; and so by a husband for a trespass and assault of this kind upon his wife per quod consortium amisit.'
In Rigaut v. Gallisard, 7 Mod. 78, Lord Holt, C. J., said that if adultery be committed with another man's wife, without any force, but by her own consent, the husband may have assault and battery, and lay it vi et armis, and that the proper action for the husband in such case was a special action, quia,-the defendant his wife rapuit, and not to lay it per quod consortium amisit.
In Haney v. Townsend, 1 M'Cord L. 206, decided in 1821, it was held that case as well as trespass vi et armis is a proper action for criminal conversation, the court holding that no doubt trespass was a proper form of action for the injury done by seducing a wife, but that case was also a proper action.
In Bedan v. Turney, 99 Cal. 649, 34 Pac. 442, decided in 1893, it was held that the criminal intercourse of the wife with another man was an invasion of the husband's rights, and it was immaterial whether this invasion was accomplished by force or by the consent of the wife; that the right belonged to the husband, and it was no defense to his action for redress that its violation was by the consent or even by the procurement of the wife, for she was not competent to give such consent; that it was not necessary that the husband should show that it was by force or against her will. The original form of the action was trespass vi et armis, even though the act was with the consent of the wife, for the reason, as was said by Holt, C. J., in Rigaut v. Gallisard, 7 Mod. 78, 'that the law will not allow her a consent in such case to the prejudice of her husband.'

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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