
    Andrew Park v. Ferdinand Hopkins, at ux.
    
    A husband may maintain an action on the case, against the parent of his wife for inducing'her to live separate from him ; and in such action it is not necessary to prove malice.
    In an action against husband and wife for inducing plaintiff’s wife to live apart from him, declarations made by defendant’s wife in presence of the wife of plaintiff, which were calculated to influence the latter to remain apart from her husband, are admissible in evidence as part of the res gistai, or as constituting the injury complained of.
    In a similar action the declarations of plaintiff’s wife, that she remained apart from her husband on account of his own improper conduct, and not through the persuasion or influence of the defendants, are inadmissible.
    The declarations of the wife are not evidence against the husband, unless they constitute the injury complained of, or form part of the res gestas.
    
    The Court will not interfere with the verdict on a question of damages, where they depended upon facts and circumstances, of which the jury were the.proper judges, although the Court may not approve of the verdict.
    Tried before Mr. Justice Earle, at Chester, Spring Term, 1831.
    This was an action on the case for inducing and enticing plaintiff’s wife to live apart from him. Dr. Park, the plaintiff, married in February, 1825, and remained with his wife in the house of her parents, the present defendants, until July, 1826, when he removed, and took lodgings at the house of one Roden. Ten days after he wrote to Mrs. Park inviting her to join him, which she declined doing on the ground, that she had insuperable objections to residing in the family of the Rodens. Sometime after, having built a house, he again urged his wife to take up her residence with him; but she persisted in remaining with her parents. And he brought this action.
    The plaintiff gave in evidence declarations made by Mrs. Hopkins, the defendant, in presence of her daughter the plaintiff’s wife, which were calculated to induce her to remain apart from her husband. The substance of these declarations are specified in the opinion delivered by the Court of Appeals: and it is therefore unnecessary to detail them here. Their admissibility was objected to by defendants; but the objection was overruled.
    
      The defendants introduced the plaintiff’s letters, and other evidence, to show that Mrs. Park was influenced in living separately from her husband solely by his own improper conduct, and not by the persuasions of her mother. Her declarations to the same effect were offered in evidence, but, being objected to, were excluded by the Court.
    The presiding Judge charged the jury, that if the defendant’s wife had any agency in bringing about the separation of plaintiff and his wife, the plaintiff was intitled to a verdict; that there was no sensible distinction, so far as regarded the mere legal right of action, between the case of a parent and a stranger ; nor was it necessary to prove that the parent was actuated by malicious motives, in order to intitle the plaintiff to recover.
    The jury found for the plaintiff, fifty dollars damages; and the defendants moved to set aside their verdict, and for a nonsuit, or new trial, on the following grounds.
    1. That his Honor erred in admitting evidence of the declarations of the defendant Mrs. Hopkins ; and there being no other evidence to charge the defendants, they were intitled to a non-suit.
    2. That the evidence offered of the declarations of plaintiff’s wife ought to have been admitted.
    3. That the verdict was against law and the evidence.
    Williams, and Clarice, for the motion,
    cited Hill v. Hill, 2 Str. 1094. Denn. v. White, 7 T. R. 108. Alban v. Pritchett, 6 T. R. 680. Aveson v. Lord Kinnaird, 6 East. 188. Hawkins v. Hatton, 2 N. & M. 374.
    A. W. Thomson, and Gregg, contra.
    
   O’Neall, J:

delivered the opinion of the Court.

In this case we concur with the presiding Judge, that the language and conversations of Mrs. Hopkins, the defendant, were competent evidence to show her agency in the separation, which took place between the plaintiff and his wife.

In Hawkins v. Hatton and wife, 2 N. & M. 374, it was held, that the declarations, or rather admissions of the wife, could not be given in evidence, to show that she had committed a trespass, and thereby to charge the husband in damages. Of the correctness of the rule, as laid down in that case, I am fully satisfied. The injury complained of in it, consisted in an act done, which was susceptible of other proof. Her admissions of it, were no more, than her own evidence would have been, if she had been sworn as a witness. She could not be sworn as a witness against the husband, except in cases of personal abuse of herself by him. This rule of exclusion is founded on a wise policy, and ought to be as little trenched upon as possible; yet to apply it as contended for in this case, would be to exclude all the proof of the injury itself, of which the plaintiff could avail himself.

The rule in the case of Hawkins v. Hatton and wife, is however subject to qualifications. If the declarations of the wife are part of the res gestee, or constitute in themselves the injury complained of, then they are competent evidence. In the case before us, they are a part of the separation of the wife from the husband: they indicate why and how it took place, and therefore are evidence both as part of the res gesta, and also as constituting the injury complained of. They are themselves the act done, whereby the plaintiff* has sustained injury. For the two conversations detailed in evidence, and which are the subject of complaint, were had, when the plaintiff’s wife was present, and when she could, and probably did hear the observations of her mother. The assertion of the mother, that Dr. Park, the plaintiff, had promised before marriage, not to deprive her of the society of her daughter, and that he might go where and when he pleased, but that she was determined her daughter should not leave her, was well calculated to influence the conduct of a young and only daughter.

On the other parts of the case we also concur with the presiding Judge. His instructions to the jury were proper, and although we think the plaintiff’s case, was one not at all deserving even the small verdict which has been rendered, yet as the facts and damages were matters exclusively for the jury, we cannot now undertake to say that their decision is wrong.

The motion for a nonsuit or new trial is therefore refused.  