
    BANKRUPTCY.
    [Cuyahoga (8th) Circuit Court,
    November 6, 1901.]
    Caldwell, Hale and Marvin, JJ.
    Joshua K. Exline et al. v. Jas. T. Sargent et al.
    1. Rule as no Purpose oe Bankruptcy Act.
    It is not the purpose of the bankruptcy act to release a bankrupt from debts which are the result of his own willful and malicious wrongdoing.
    2. Claim eok Alienating Wire’s Aeeections Not Released.
    A judgment for damages for the alienation of a wife’s affections is within Sec. 17 of the bankruptcy act of 1898, relating to “ willful and malicious injuries to the person or property of another ” and is not released by a discharge in bankruptcy.
    Heard on Error.
    W. C. Ong, for plaintiffs in error,
    cited:
    The discharge in bankruptcy shall release a bankrupt from all of Ms provable debts, except such as (1) * * * (2) Are judgments in actions for fraud, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another. Bankruptcy Act (1898), Sec. 17.
    In order that the judgment shall not be released, the injury to the person or property must have been wilful and malicious. Whether the act was wilful and malicious must be determined by the record of the court in which the judgment was recovered. Fo velan d Bankruptcy, p. 624; Flannigan v. Pearson, 42 Texas, p. 1.
    Whoever by fraud, persuasion or violence entices or takes a man’s wife away from him is liable to the husband for the injury thereby done him. 1 Amer. Ency. Faw (2 ed.), 163.
    The ground of such an action is the infliction upon the husband of some one or more of the following injuries :
    
    First — Dishonor of the marriage bed.
    Second — Foss of the wife’s affections.
    Third — Foss of the comfort of the wife’s society.
    Fourth — Value of her services, either total loss or as diminished.
    Fifth — Mortification and sense of shame occasioned by domestic wrongs. Cooley on Torts, p. 224.
    Next to the sanctity of the person comes that of the personal relations constituting the family. Depriving the husband of the society of his wife * * * is not less a personal injury, though a less tangible one, than beating or imprisonment. Webb’s Pollock on Torts, p. 269.
    In an action for the alienation of a wife’s affections, the husband is entitled to recover for the wrong and injury done to his feelings and character. Hartpence v. Rodgers, 45 S. W. Rep. 650 [143 Mo. 623].
    Before marriage the man and woman are endowed with the same personal right * * * in this state, neither the husband or wife unconditionally surrenders their personal rights by consummating the contract of marriage. On the contrary, each acquires a personal as well as legal right to the conjugal society of the other, for the loss of which either may sue separately. Westlake v. Westlake, 34 Ohio St. 621, 634 [32 Am. Rep. 397].
    Where it is claimed that such discharge does not bar the collection of a judgment on the ground that it is a debt created by fraud, within the meaning of the bankrupt act, the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment. Howland v, Carson, 28 Ohio St. 625,
    E. J. Blandin, and Ed. S. Meyer, for defendants in error.
   MARVIN, J.

This is a proceeding in error brought to reverse the judgment of the court of common pleas of this county in a case in which the plaintiffs in error were plaintiffs and the defendants in error were defendants.

The plaintiff Uxline recovered a judgment in’ the sum of six thousand dollars against the defendant Sargent in the court of common pleas on or about June 26, 1900, an undivided one-half of which judgment he assigned to the plaintiff Ong. Execution was issued upon such judgment, which was returned wholly unsatisfied; whereupon these plaintiffs brought their action against the defendant Sargent and numerous others, it being alleged in the petition that the other defendants had in their hands or under their control certain property of Sargent liable to be applied to the satisfaction of this judgment; the purpose of the proceed]'ng being to have such property subjected to the payment of the judgment.

To this petition the defendant Sargent answered and, among other defenses made in such answer, is the averment that by proceedings duly had in the United States district court for the northern district of Ohio, the defendant Sargent was discharged in bankruptcy on November 3, 1900. And then this allegation is made: “ That the claim of plaintiff in his petition filed in the cause in which said judgment was rendered and entered, was as follows : ‘ That while the said plaintiff and his wife were living happily together, all of which the defendant well knew, the defendant (James T. Sargent) wrongfully intended to injure plaintiff and deprive him of the society and services of his wife, and maliciously poisoned the mind of his said wife against this said plaintiff * * * defendant maliciously enticed her away from plaintiff and caused said wife to lose the affection and love which she once sustained to plaintiff. That he so alienated the affections of said wife for this plaintiff that this plaintiff's wife applied for legal separation and obtained it on October 10, 1898. * * * That by reason of the premises above set forth, he has been wrongfully deprived of the affections, society and services of his wife.’ ”

This allegation of the answer was not denied by the plaintiffs and upon motion by the defendants for judgment on the pleading, the court gave judgment in their favor.

On the part of the plaintiffs in error it is urged that the discharge in bankruptcy, pleaded, did not operate to relieve the bankrupt from liability upon the judgment upon which the claim in the present case is founded.

Section 17 of the bankruptcy act provides, so far as it applies to this case, that “ A discharge in bankruptcy shall release a bankrupt from all bis provable debts except such as * * * (2) Are judgments in actions * * * for wilful and malicious injuries to the person or property of another.”

Unless the claim of the plaintiffs comes within the exception contained in the foregoing quotation from the statute, the discharge in bankruptcy operated to release Sargent from liability thereon.

Numerous authorities are cited in support of the proposition that a husband may have an action against him who seduces his wife from him, and it is urged that because of this, one is injured in his property when the wife is so enticed away.

It is not always true that one has property in that for injury to which an action may be maintained; that is to say, one may have aright of action for an infringement of his rights where no property is involved. If this were not true, the language of the bankrupt act itself, where it excepts from the debts of which the bankrupt is relieved by his discharge malicious injuries to the property and to the person of another, would be -tautological, because certainly one has a right of action against another for injuries to his person, and yet congress after using the word “ property ” adds the word “ person,” clearly showing that there might be injury to one’s person for which an action could be maintained which would not be an injury to his property.

On the other hand, it is urged, that property can never be separated from things; that strictly the word “ property ” means only the ownership in things and not the things themselves, but that, in its true sense, it includes no more than things; and it is, therefore, urged that there can be no property right invaded by the seduction of a wife.

An examination of the authorities, however, shows that many courts of last resort have held the word “ property ” to have a broader meaning.

In O’Hara v. Stack, 90 Pa. St. 477, it is held that the profession of a priest is property. This was in an action where a bishop of the Roman Catholic Church had, in violation of the laws of the church, prohibited a priest of the church from exercising his ministerial functions in the diocese.

In People v. Harry Cadman, 57 Cal. 562, it is held that the right to appeal to a higher court from the judgment of a lower court is property; and this was in a criminal action, in a case where Cadman was prosecuted, for having sent a letter to one Clune which contained a threat to expose him to disgrace if he did not withdraw an appeal which he had taken in a case which had been decided against him. The statute under which the prosecution was had, made it an offense to send a threatening letter “ with intent to extort any money or other property from another.” And the court held, as already said, that this offense was committed by the sending of such letter with intent to prevent the party from taking his appeal.

The language used in the opinion, at page 564, is :. “ Assuming, as we do, that the right to take and prosecute an appeal, is property within the meaning of the code, it follows that a threat made for the purpose of inducing an appellant to dismiss an appeal, is a threat made with intent to extort property from another.”

It is urged further on behalf of the defendant in error, that the judgment from the payment of which it is claimed that discharge in bankruptcy released Sargent, was not an injury to his person; and, strictly speaking, this is true; yet in Delamater v. Russell, 4 How. Pr. 284, it is held that an action for criminal conversation with the plaintiff’s wife was an injury to the person of the plaintiff. In the opinion, this language is used:

“ Section 179 authorizes the arrest of a defendant ‘ in an action for the recovery of damages, on a cause of action not arising out of contract, where the defendant is not a resident of this state, or is about to remove therefrom, or where the action is for an injury to person or character,’ * * * I think the act complained of was an injury to the person of the plaintiff. It was an invasion of his personal rights. The action was brought for depriving the plaintiff of the comfort, society, fellowship, aid and assistance ’ of the wife. ”

Again, this language is used: <c It is not supposed that it was the intention of the legislature to excuse from imprisonment, judgment debtors in actions for crim. con., seduction of a daughter, or beating of a servant; and subject defendants to imprisonment in all other action for wrong; nor does the statute, in my opinion, demand any such construction. On the contrary, I think the language employed is used in its established legal signification, and though it might have been more explicit, covers the class of actions in question.”

In Tute v. James, 46 Ver. 60, 63, this language is used: “ The person consists of both soul and body.” It certainly may be well urged that one’s mind is subjected to great anguish and thereby injured by the seduction of his wife, and, if that which causes mental suffering, is an injury to the person, then this judgment was clearly for an injury to the person of the plaintiff.

In re Freche, 109 Fed. Rep. 620, decided in the district court of the United States for the district .of New Jersey on June 3, 1901, it was held that:

“ A judgment recovered in a court of New Jersey for seduction of the plaintiff’s minor'daughter, which must be based on loss of services but also includes damages for personal injuries to tbe plaintiff through being subjected to mental anguish, disgrace, etc., is one for a ‘ wilful and malicious injury to the person or property of another,’ within the meaning of the seventeenth section of the bankrupt act.”

See also the case of 4 Cush. 408.

It may be that it is a somewhat strained construction of words, to say that the judgment sought to be enforced in this action, was for a malicious injury to either the person or the property of the plaintiff, and yet it can hardly be supposed that it was the intention of congress to except from the operation of the discharge in bankruptcy those judgments obtained for a malicious assault upon one’s person or a "malicious destruction of one’s chattels, and not except such an injury as that for which this judgment was obtained. Doubtless, the real purpose of the exception was not to relieve the bankrupt from those debts which were the result of his own malicious and wilful wrongdoing; and the language used must have been intended for that purpose, and intended to include all such debts. If the claim made by the defendant in error is sound, then the bankrupt would be relieved from any judgment obtained against him for the killing of the plaintiff’s wife, for it could be urged in that case with as much plausibility as in this, that no injury had been done either to the person or the property of the husband.

We conclude, therefore, that the judgment sought to be enforced in this action, comes within the exception expressed in the words “ wilful and malicious injury to the person or property of another,” within the meaning of the bankrupt act; and the judgment of the court of common pleas is reversed.  