Evening journal., 1898-03-02
A WIFE'S AFFECTION.
Tcontinued From First Page.l

to the maintenance Of the action that
there should be amy pecundary loss
whatever.
I'm actions OF this character there
| are two kinds OF defence, the one GO
ing to the complete bar and absolute
defeat of the action, and the other go
Ing not to the bar of the action, but in
mitigation or reduction of the damn
ages. "A defence of the first kind is the
consent OF the husband to the act COM
planned of for it is "a general rule of
law that no one can maintain am action
for a wrong when he has consented to
the act which occasions the ioss.
When am action is brought, like the
present, THE law is now clearly settled
to be THAT II the husband consents To
his wife's acts it goes in bar of the ao-
tion. Bunnell VS.. GreaHhead, 49 Barb.
106. And such a rule of law is sup
ported by the clearest reason and is
based on the souundest principles. Be
cause it lis aibhorrent Ito every principle
OF justice and right THAT a husband
Should procure or even consent TO the
infamy or misconduct OF his wife, and
seek TO profit by the wrong for which
he was responsible.
I'm the matter of mitigation of damn
ages, which is the second class or kind
OF defence referred to, There are many
things which may be considered, and
which it is right and proper THAT the
jury should consider so far as disclosed
by the testimony produced I'M the case.
The extent of the actual INJURY to the
husband will of course depend ON the
prior relations between him and his
wife, and the Practical consequences
dence in mitigation or reduction of
damages will therefore be received,
which tends TO show THAT THE plaintiff
has in fact suffered less INJURY than
would otherwise be probable infer
ence from the act complained of. 1t is
proper therefore for You to consider, in
mitigation of damages amy evidence
which shows that prior to the wife's re-
lations with the defendant the relations
between her and her husband were un-
happy; THAT they were want
ing I'M Affection for one another;
that there was but slight inter-
course between Them; THAT me was cruel
or unlzlnd in his treatment Of her; that
he failed to support her, and amy mis-
conduct on his part tending to show
their unhappy relations or lack of af-
fectionl And If the husband be guilty
OF negligence or loose and improper
conduct respecting the wrongful act Of
the wife, but not amounting to consent,
1t goes in mitigation or reduction OF
damages The fact THAT al husband is
living apart from his wife may like
wise be shown in mitigation OF damn
ages, but it is not a bar to the action
itself, and certainly not, If he has met
renOunced his martial rights and per-
manenltly and Totally given up all adj
vantage to be gained from the society
Of his wife Cross VS.. Grant, 62 N. H.,
675. And the reason. of the rule is THAT
any unhappy relations existing between
the plaintiff and his wife, not caused
by the conduct OF the defendant, may
affect the question Of damages. but
they are in no sense a Justification Of
the defendants s conduct They are al
lowed to affect the damages, NOT be-
cause the acts OF THE defendant are less
reprehensible, hut that the condition
OF the husband is such that the injury
which such acts occasion is leas than
otherwise 1t might nave been. AS was
well said by the learned judge in the
case of Cross VS.. Crane BY a sepaira-
tion the husband MAY, as to his wire.
have lost his legal right to the comfort
and solace of her society, but not as
to all the world. Although separated |
from her husband and by his fault,
she remained his wife until divorced, |
and for her support he is liable. The |
separation does not release him from
his marital duties. There is always a |
hope of reconciliation. The proper
nurture training and instruction Of /
children require the united labor and
q 10 l4,41,
tual comfort and support, and the good
OF society, require that they should live |
together in one family. The policy Of |
the law encourages them, IL living /
apart, 10 come together again. Recon-
ciliatiOn would CT should be followed |
by purity in their marriage relations /
and happiness in their home
The fact of the separation, however,
and the circumstances under which 1t |
occurred, may be very material to be |
considered by the jury as showing the |
relations of the husband and wife, and |
whether on account Of such relations /
the husband lost much or little by rea-
son OF the acts and conduct Of the dc.
fendant.
we will not enter i1to 4 discussion
Of certain Of The legal questions raiseu
by the prayers in this case. because
such a discussion would probably con-
fuse rather than aid you in the dis
charge of your duties We will there
fore content ourselves with the state
ment of our conclusions upon such |
questions, without setting forth Ell
length the reasons upon which such
are based.
'The divorce granted by the Legs-
lature ITO Mrs. Prettyman, May &C. 1897,
may be and should be considered OS
You in mitigation of damages, If you
should think the plaintiff entitled to !
recover damages, because the plalntiff
would not be entitled TO amy compen-
saItion for The loss of the affection, So
ciety and services of mis- wife after
she ceased to be his wife Although Il
Is true, as Mr Bishop has said in his
work on Marriage and Di-
rorce' Vol. /, Sec. 1465, THAT a legis-
ative divorce equally with Judicial
1ne, snaps the vinculum of the mar
'iage, and THAT whatever hangs upon ii
ails,' yet the learned author in laying
iown that proposition illustrates its
meaning lhV referring no fhp Text sec ,