SMITH, J.
1. When the verdict was returned, and the foreman in the presence and hearing of the other jurors was asked upon which count the verdict was rendered, no juror dissented from his answer. The inference of assent from their omission of any expression of dissent is conclusive. The practice in this instance is not unusual. South Hampton v. Fowler, 54 N.H. 197, 201. So far from being objectionable, it is frequently a convenient one, if not quite indispensable.
2. The defendant's requests for instructions and exceptions to the instructions given must stand, if sound, upon the proposition that recent legislation in this state placing married women in regard to their property upon an equality with unmarried women has repealed the common law giving to the husband an action for criminal conversation for the adultery of his wife. His argument is, that at common law the husband had absolute control over his wife's person, property, and services, and the exclusive right to her earnings; that when she is abducted or commits adultery he is injured in his property interests because the injury is accompanied by the loss of her services; and that the action of criminal conversation stands like the action by a parent for the seduction of his daughter; — in other words, that loss of services is the gist of the action, and being no longer entitled to the services of his wife, he can no longer maintain the action. The maxim, when the reason of a law ceases so does the law itself, is invoked in aid of this position.
The exceptions do not call for any decision of the question what services the wife is entitled, under Gen. Laws, c. 183, s. 1, to perform upon her own account and at her own option, nor for what services she is entitled to earnings or compensation There are cases which hold, under statutes similar to our own, that the earnings which a married woman is entitled to hold to her own exclusive use, are her wages for services or labor performed for others than her husband, or the proceeds of business carried on by herself, such as dressmaking, millinery business, school-teaching, and the like, and that her husband is entitled to her labor and assistance in the discharge of those duties and obligations which arise out of the marriage relation, without compensation. Musselman v. Galligher, 32 Iowa 383; Grant v. Green, 41 Iowa 88; Peters v. Peters, 42 Iowa 182; Mewhirter v. Hatten, 42 Iowa 288; Wood v. Mathews, 47 Iowa 410; Brooks v. Schwerin, 54 N. Y. 343; Filer v. N. Y. Cen. R. R., 49 N.Y. 56; Reynolds v. Robinson, 64 N. Y. 589; Fry v. Drestler, 2 Yeates 278; Bigaouette v. Paulet, 134 Mass. 123; Ogborn v. Francis, 44 N. J. Law 441; 1 Chit. Pl 134, 167; Abb. Tri. Ev. 405. But we leave this question to be decided when it shall arise.
The fault with the defendant's logic is in assuming that the gist of the action for criminal conversation is the loss of services. Neither of the two cases cited by him in support of this claim is in point. In the first, Weeden v. Timbrell 5 T. R. 357, Ashurst, J., said, — "The gist of this action is the loss of the comfort and society of the plaintiff's wife: that is always inserted in declarations of this kind as a material and substantial allegation, and the forms of pleading are evidence of the law." Both he and Ld. Kenyon, C. J., are understood to have meant in their opinions that loss of comfort and society must he proved. They said that the principle of the case is like that of an action by a parent for the seduction of his daughter where slight proof of acts of service done is all that is required to support the allegation in the declaration. In fact, the actual loss sustained by a parent through the diminished ability of his daughter to render personal service, and the servile position of the daughter, are ordinarily scarcely more than mere fictions by which the jury is enabled to render substantial justice. Davidson v. Goodall, 18 N.H. 423.
The other case cited by the defendant, Lynch v. Knight, 9 H. L. Cas. 577, was an action by the wife for slander, in which her husband was joined, the special damage alleged being that the words uttered by the defendant imputed to her unchastity, in consequence of which her husband refused to live with her, whereby she lost the comfort, society, and support of her husband. Ld. Wensleydale said, — "The assistance of the wife, in the conduct of the household of the husband and in the education of his children, resembles the service of a hired domestic, tutor, or governess; is of material value, capable of being estimated in money; and the loss of it may form the proper subject of an action, the amount of compensation varying with the position in society of the parties. . . . It is to the protection of such material interests that the law attends. . . . For these reasons I think the wife has no remedy in the supposed case of the wrongful imprisonment of the husband; and by parity of reasoning she can have none for being deprived of the society of her husband by the slander of another upon her character, causing him to desert her." If these remarks are relevant in an action by the husband for criminal conversation, they are opposed to the remarks of Ld. Campbell in the same case, who said, "The wife is not the servant of the husband, and the action for criminal conversation by the husband does not, like the action by a father for seduction of a daughter; rest on any such fiction as a loss of the services of the wife."
The action for criminal conversation is not given to the husband for an injury to the wife only. He must prove that some right of his own in the person or conduct of his wife has been violated. Bigaouette v. Paulet, supra. The textbooks and decisions declare that the gist of the action is the loss of the comfort and society of the wife. 3 Blk. Com. 189; 2 Chit. Pl. 314; Yundt v. Hartrunft, 41 Ill. 12: Wilton v. Webster, 7 C. P. 198; 2 Hill. Torts 592; Rigaut v. Gallisard, 7 Mod. 82; Bull. N. P. 27; Wood Mayne Dam. 665; Weedon v. Timbrell, 5 T. R. 360; Ab. Tri. Ev. 685; Chambers v. Caulfield, 6 East 241; Wood v. Mathews, 47 Iowa 409; Egbert v. Greenwalt, 44 Mich. 245; Sanborn v. Neilson, 4 N.H. 501, 508; Bromley v. Wallace, 4 Esp. 237, where Ld. Alvanley said the injury to the husband is "the keenest of all injuries." And see authorities passim. In Bigaouette v. Paulet, supra, Mr. Justice Allen said, — "A husband is not master of his wife, and can maintain no action for the loss of her services as his servant. His interest is expressed by the word consortium; the right to the conjugal fellowship of the wife, to her company, cooperation, and aid in every conjugal relation. . . . The loss of the consortium is presumed, although the wife may have herself been the seducer, or may not have been living with her husband. A husband who is living apart from his wife, if he has not renounced his marital rights, can maintain the action, and it is not necessary from him to prove alienation of the wife's affection, or actual loss of her society or assistance. . . . . The essential injury to the husband consists in the defilement of the marriage bed, in the invasion of his exclusive right to marital intercourse with his wife, and to beget his own children. This presumes the loss of the consortium with his wife, of comfort in her society in that respect in which his right is peculiar and exclusive."
On the question of validity, the law regards marriage as a civil contract requiring no ecclesiastical sanction. Londonderry v. Chester, 2 N.H. 268, 278; Brac., b. 1, c. 5; Plow. 445; Mir. Jus. 104; 1 Blk. Com. 433. But it is something more than an ordinary contract. Smith (N.H.) 527; Adams v. Palmer, 51 Me. 481, 483; Maguire v. Maguire, 7 Dana 181, 183; Ditson v. Ditson, 4 R. I. 87, 101; Wade v. Kalbfleisch, 58 N.Y. 282, 284. It is an institution of society having its foundation in civil contract (1 Bish. M. D., ss. 2, 3), and having certain duties and obligations devolved upon the parties, derived from the law. Other contracts may be modified or released upon consent of parties. Marriage is a social relation, like that of parent and child. It cannot be dissolved by the parties when entered into. "The union is or should be for life. It is equally so in reason, in the common sentiments of mankind, and in the teachings of religion." 1 Bish. M. D., s. 21. "It has its foundation in nature, and is the only lawful relation by which Providence has permitted the continuance of the race." 2 Kent Com. 75. The public is deeply interested in preserving the institution in its purity. Hence it is "regulated and controlled by public authority, upon principles of public policy, and for the benefit of the community." Wade v. Kalbfleisch, supra.
The marriage contract or marriage duties are violated by adultery of one of the parties, and the other party in the adultery is such a party in the violation of the contract or duty that he should be liable in damages. It is not to be presumed that the legislature intended to abolish the right or remedy on that subject, in regulating the property rights of the wife, especially in the absence of any language expressing such interest, or from which it can fairly be inferred. By placing married women in regard to their property and earnings upon an equality with unmarried women, the law has modified the rights and liabilities of husbands in some material respects. Harris v. Webster, 58 N. 481, 484. But the incidental changes of conjugal rights and duties are such only as are reasonably and necessarily implied. The adultery of the wife alike alienates her affections from her husband, exposes him to shame and ridicule and the hazard of maintaining spurious issue, whether she is invested by law with the exclusive control and use of her own property and earnings, or whether she is under the common-law disabilities, as to property, of married women. Nor is the degradation of the wife from her adultery any the less sure, or the mental suffering of her husband any the less keen, in the one case than in the other.
3. The other question raised by the instructions given and by those refused is, whether the ill treatment by the plaintiff of his wife can be set up as an answer to the action; or whether it goes in mitigation of damages only. Upon this question the authorities are not unanimous, but the great weight of authority is that such evidence goes in mitigation of damages. Weedon v. Timbrell, 5 T. R 357 is an authority the other way, but the soundness of that case was questioned in Chambers v. Caulfield, 6 East 244. And see Hill. Torts (1st ed.) 594. Wyndham v. Wycombe, 4 Esp. 16, and Sturt v. Marquis of Blandford, cited in the same case, deny the right of the husband who is guilty of adultery to maintain the action. There may be other English cases to which our attention has not been called. Patterson v. McGregor, 28 U. C. Q. B. 280, is the only American case, so far as we have discovered, that follows Weedon v. Timbrell.
The husband cannot recover if he has been a party to his own dishonor, or has permanently and totally given up all advantage to be gained from the society of his wife, or has condoned the adultery. Moak's Underhill, Torts, 328, and cases cited. But otherwise, the rule as established by the authorities generally seems to be, that the misconduct, neglect, or infidelity of the husband cannot be set up as a defence for the infidelity of the wife in an action for criminal conversation. Sanborn v. Neilson, 4 N.H. 501; Bromley v. Wallace, 4 Esp. 237; Winter v. Henn, 4 C. P. 494; Calcraft v. Earl of Harborough, 4 C. P. 499; Bro. Leg. Max. 268, 260, and cases cited; Abb. Tri. Ev. 686, and cases cited; Bigaouette v. Paulet, 134 Mass. 123; Palmer v. Crook, 7 Gray 418; 2 Hill. Torts 594; 15 Am. Law Reg. (N.S.) 458; Lowe v. Massey, 62 Ill. 47; Smith v. Masten, 15 Wend. 270, Harter v. Crill, 33 Barb. 283; Coleman v. White. 43 Ind. 429; Hutchins v. Kimmell, 31 Mich. 126; Dance v. McBride, 43 Iowa 624; Bunnell v. Greathead, 49 Barb. 106; Shattuck v. Hammond, 46 Vt. 466; Rea v. Tucker, 51 Ill. 110; 2 Add. Torts 1084-1086; Big. Lead Cas. Torts 828. The reason of the rule is, that "Any unhappy relations existing between the plaintiff and 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 defendant's conduct. They are not allowed to affect the damages because the acts of the defendant are less reprehensible, but because the condition of the husband is such that the injury which such acts occasion is less than otherwise it might have been." Hadley v. Heywood, 121 Mass. 236, 239.
If the husband, by his conduct, compels the separation from him of his wife, he may, as to her, have lost his legal right to the solace and comfort of her society, but not as to all the world. His consent is not thereby extended to other men for sexual commerce with her. Although separated from her husband, and by his fault, she remains his wife until divorced, and for her support he is liable. Her enforced separation does not release him from his marital duties. There is always the hope of reconciliation. The proper nurture, training, and instruction of children require the united labor and affection of both parents. Their mutual comfort and support, and the good of society, require that they should live together in one family. The policy of the law encourages them, if living apart, to come together again. Reconciliation would or should be followed by purity in their marriage relation, and happiness in their home. If, while separated, she is debauched, the hope of reconciliation is thereby greatly diminished, and may be wholly extinguished.
4. The letter to Knapp was written for a proper or improper purpose. It was for the jury to say, upon all the evidence upon that point, whether the purpose was, or was not, innocent. The letter tended to show that the defendant resorted to indirect means to procure the attendance of Mrs. Cross, at Lancaster, and, unexplained, that his purpose was an improper one.
5. It does not appear what the contents of the letters to Mrs. Paul were, and, if material, their relevancy may have been so remote that we cannot say, as matter of law, that the court was not justified in finding, as a matter of fact, that the evidence should be excluded. Watson v. Twombly, 60 N.H. 491, 493
6, 7, 8. These exceptions relate to the conduct of counsel for the plaintiff, in his closing argument to the jury. It is unnecessary to repeat what was said upon this subject in Tucker v. Henniker 41 N.H. 317, and in Hilliard v. Beattie, 59 N.H. 462. The remarks made in those cases apply with full force in this case. Each party had a moral and legal right to a fair trial upon legal evidence. The court had no authority to permit that right to be violated by the unsworn and incompetent statements of counsel. The wrong done the defendant is not rectified by a presumption that it was done in the excitement of the trial, without deliberation, and without a wrongful purpose. An intent to abstain from an infringement of his right of a fair trial does not alter the fact that the trial was unfair. The instruction given the jury to disregard all statements of counsel that were not supported by evidence, falls far short of what the law requires for correcting the error, and it is not found as a fact that the error was harmless.
9. Other exceptions taken at the trial relate principally to the admission or exclusion of evidence. The principles involved are so well settled that no special mention of them is required.
All the exceptions are overruled, except those numbered 6, 7, and 8, which, for reasons given, are sustained.
New trial granted.
CARPENTER, J., did not sit: the others concurred.