Main v. Main

Mr. Justice Wall.

The only question arises upon the action of the court in holding the special pleas a valid defense. At the common law neither the husband nor wife could maintain an action for damages against the other for an assault or battery, no matter how aggravated, though the offending party was liable, eriminaliter. Nor would an action lie for an injury to the reputation. Reeve’s Domestic Relations, 65; Cooley on Torts, 223, 227. The fact that the conjugal relation has been dissolved by divorce will not support an action for a tort committed ¿luring the marriage. Ib. 228. Abbott v. Abbott, 67 Maine 30i, was, like this, a case where, after divorce, the woman sued her former husband for an alleged assault, etc., during coverture, by forcibly carrying her to an insane asylum and causing’ her to be incarcerated therein. The court in an O elaborate opinion held the action Avould not lie. Theoretically husband and Avife are one person. Actions at law between them Avere unknown at the common law. Our statute has, it is true, introduced some radical changes so far as property rights and the poAver of making contracts are concerned. In order to carry ont the rights and powers thus conferred upon the wife she may bring suit in her own name, even against the husband, and it has been held that by reason of the changes thus made in the property rights of the wife the husband is relieved from his common-law liabilities in respect to her torts and ante-nuptial contracts. Emerson v. Clayton, 32 Ill. 493; Howard v. Warmser, 55 Ill. 48; Martin v. Robson, 65 Ill. 129. But as was said in Chestnut v. Chestnut, 77 Ill. 346, “We have no warrant under any statute, or otherwise, for holding a married woman has any right to any action at law against her husband except in cases where it may be deemed indispensable to enable her to recover or enjoy her separate property, secured to her by the statute.” In the Abbott case, Supra, the court said that though the husband may have no right to inflict violence upon the wife, yet it is not desirable that an action should lie in such cases.

She is not without protection. She may proceed criminally; She may have a writ of habeas corpus if unlawfully restrained. She may sue for divorce and in adjusting alimony the court will regard any cruelties she may have suffered and award such compensation as the nature of the case shall require. When she has resorted to this final remedy and has obtained judgment it must be regarded as a settlement of all causes of complaint.

This question arose lately in England in the case of Philips v. Barnet, 1 Q. R. D. 436. Such, J., said: “How I can not for a moment think that a divorce makes a marriage void ah iniUo; it merely terminates the relation of husband and wife from the time of divorce, and their future rights of property are adjusted according to the decision of the court in each case.”

If such a tort is actionable, so it would be in respect to slander and libel. If the action would lie in favor of the wife against the husband it would also in favor of the husband against the wife. Instead of settling, a divorce would unsettle all such matters. A new line of litigation would at once arise and the harvest would grow in proportion to the number of divorces. Sound considerations of public policy would forbid a change of the common law, and unless the statutory provisions referred to have by direct terms or by necessary inference abrogated the rule, we must hold it still in force. It is clear this has not been done, expressly, and we find no sufficient warrant for saying it has been done by implication. We- are therefore of opinion the Circuit Court properly overruled the demurrer to the pleas, and that the judgment should be affirmed.

Judgment affirmed.