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law marriage is considered in no other light than a civil contract, and the holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts consider unlawful marriage as a civil inconvenience. To punish or to annul unscriptural marriage is the province of the spiritual courts, which act pro salute animae: 1 Blackstone's Commentaries, 432. The common law recognizes the right of either husband or wife to maintain a suit for the restitution of conjugal rights when either is guilty of injury of subtraction without sufficient reason, in which case the ecclesiastical courts compel them to come together: 3 Blackstone's Commentaries, 94. At common law the husband and wife are treated as one person. Marriage operates as a suspension, in most respects, of the legal existence of the latter. All the disabilities of married women spring from the supposed unity of husband and wife. At common law the right of the wife to the consortium of her husband exists. In the ecclesiastical jurisdiction, which is exercised 612 concurrently with that of the common law, the rights of the wife to the consortium of the husband are recognized and enforced. While the court did not give her damages for the loss of the consortium of the husband, but restored to her the thing itself, this was a distinct recognition of the rights of the wife by the ecclesiastical law of England, which was founded upon the principles of the civil law: 1 Blackstone's Commentaries, 442; 3 Blackstone's Commentaries, 139, 140. If the dominion which the common law gave the husband over the the property and personal rights of the wife has been taken away from him and conferred upon her, and remedies conformable with the spirit of the civil law have been given to the wife for the redress of injuries to her person, property and personal rights, an action in her own name for the loss of the consortium of her husband, against one who wrongfully deprived her of it, may be maintained, unless the consortium of her husband is not one of her personal rights.

It is not questioned that the law gives the husband the right to maintain an action against one who deprives him of the consortium of his wife. The law gives the wife the right to her husband's support, society, and affection. If the right is invaded a flagrant wrong has been committed. It is the boast of the common law that there is no right without a remedy. It would be a reproach to the law if there was no remedy for a wrong like this. There is a maxim that "reason is the life

of the law." Certainly it would be against reason to give the husband the right of action for an injury, but deny the same to the wife for suffering a like one. The reason which gives the husband an action against one who deprives him of the society and affection of his wife supports a rule which would give the wife the same remedy. Some courts hold 613 that at common law an action like the one here can be maintained by the wife. The right to the society of his wife is no greater to the husband than her right to his society. Marriage gives to each the same right in that regard. Each is entitled to the society and the affection of the other. They both spring from marriage contract, and are mutual in character. It has been said by some courts that these reciprocal rights are regarded as property of the respective parties. It is not necessary to enter into a discussion of the question as to whether this action could be maintained under the common law. If she could not maintain such an action at common law, it was because there was no remedy available to her for a vindication of the right. If the statutes supply the remedy, she is clothed with a right to enforce a meritorious cause of action. In Bigelow on Torts, 153, it is said: "To entice away, or to corrupt the mind or 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 in the loss of assistance, but the loss of consortium of the wife or husband, under which terms are usually included the persons, affection, society, and aid. Cooley on Torts, 228, says: "We see no reason why such an action should not be supported where by statute the wife is allowed for her own benefit to sue for personal wrongs suffered by her." In Jaynes v. Jaynes, 39 Hun, 40, it is said: "These reciprocal rights may be regarded as the property of the respective parties, in the broad sense of the word 'property,' which includes things not tangible or visible, and applies to whatever is exclusively one's own." In Foot v. Card, 58 Conn, 1, 18 Am. St. Rep. 258, 18 Atl. 1027, it was held that the right of the husband to the affections and society of the wife has ever 614 been regarded as a valuable property right, and he has always been permitted to sue for the loss of it. Upon principle, this right is as valuable to her as is that of the husband to him. In Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776, it is said: "As, in natural justice, no reason exists why the right of the wife to maintain an action against the seductress of her husband should not be coextensive with his right of action

against her seducer, nothing but imperative necessity would justify a decision to the contrary." The right of the wife to maintain such a suit as this is supported by Westlake v. West. lake, 34 Ohio St. 633, 32 Am. Rep. 397; Bennett v. Bennett, 116 N. Y. 584, 23 N. E. 17; Jaynes v. Jaynes, 39 Hun, 40; Warner v. Miller, 17 Abb. N. C. 221; Haynes v. Nowlin, 129 Ind. 581, 28 Am. St. Rep. 213, 29 N. E. 389; Foot v. Card, 58 Conn. 1, 18 Am. St. Rep. 258, 18 Atl. 1027; Seaver v. Adams, 66 N. H. 142, 49 Am. St. Rep. 597, 19 Atl. 776.

If the wife was deprived of a redress at common law when her husband was taken away from her by the improper influence of others it is because of its barbarity, which made the wife the mere servant of the husband, and deprived her of all right to redress for personal wrongs, except by his will. The doctrine of feudal times gave many and comprehensive rights to the baron, but few to the feme. Since such barbarous times generations have succeeded generations, and each one has increased in enlightened thought, before which the harsh doctrines and unreasonable rules of the common law have fallen. In many cases when the courts could not refuse to apply them, some of the legislatures of the several states in this union have, by wise enactments, destroyed them. Relics of barbarism in the forms of law cannot stand before the progress of enlightened ages.

Kentucky has kept pace with the age, and has given to 615 the wife the right to sue and be sued as a single woman. Section 2128 of the Kentucky Statutes reads as follows: "A married woman may take, acquire and hold property, real and personal, by gift, devise or descent, or by purchase, and she may, in her own name, as if she were unmarried, sell and dispose of her personal property. She may make contracts and sue and be sued, as a single woman." This legislation is a step in the direction of the abrogation of the common-law unity of husband and wife. As the wife has the right to the consortium of her husband, and deprivation inflicts an injury. to her personal rights, and as the statute we have quoted affords the remedy, by allowing her to maintain an action independent of, and regardless of the wishes of, her husband, we are of the opinion that the court erred in sustaining a demurrer to the petition. The judgment is reversed, for proceedings consistent with this opinion.

Petition for rehearing filed by appellant and overruled.

A Wife has a Right of Action, under modern statutes, for the alienation of her husband's affections: Betser v. Betser, 186 Ill. 537, 78 Am. St. Rep. 303, 58 N. E. 249; Beach v. Brown, 20 Wash. 266, 72 Am. St. Rep. 98, 55 Pac. 46; Reed v. Reed, 6 Ind. App. 317, 51 Am. St. Rep. 310, 33 N. E. 638; Price v. Price, 91 Iowa, 693, 51 Am. St. Rep. 360, 60 N. W. 202; monographic note to Clow v. Chapman, 46 Am. St. Rep. 472-478. But st the common law it seems she had not: Houghton v. Rice, 174 Mass 356, 75 Am. St. Rep. 851, 54 N. E. 843.

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PAYMENT-When Cannot be Recovered Back.-A voluntary payment of money under a claim of right cannot be recovered back. (p. 403.)

PAYMENT is not Considered Voluntary where the parties are not on equal terms, where the payee has no choice, or where the only alternative is to submit to an illegal exaction or discontinue business. (p. 403.)

PAYMENT-When Voluntary.-If a dispute arises and the debtor, who pays under protest, has at hand other means of immediate relief than by making payment, his act is not done under coercion and his protest does not make the payment involuntary. (p. 404.)

PAYMENT.-It is not Duress to institute, or threaten to institute, civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. (p. 404.)

PAYMENT Must be Resisted at the Time.-If the party against whom demand is made has full opportunity at the time to test the legality of the exaction, he should do so, and not postpone the litigation by making payment and afterward suing to recover it back. (pp. 404, 407.)

James R. Beckwith, for the appellant.

Harry H. Hall, for the appellee.

18 BLANCHARD, J. Plaintiff company claims certain wharfage rights and privileges on the river front of the city of New Orleans. Their rights and privileges are predicated on an ordinance adopted by the common council in December,

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