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the immediately preceding sec. 733, namely, one laid by or on behalf of the party aggrieved in "any case of assault or battery." It is to be found in Part XV of The Code which deals only with summary convictions. Part XVI deals with the summary trial of indictable offences. Sec. 773 (c) contained in this part confers jurisdiction upon a magistrate (which term in this province includes any two Justices) to hear and deter-. mine subject to the subsequent provisions of Part XVI a charge of unlawful wounding or inflicting grievous bodily harm upon any other person either with or without a weapon or instrument. Sec. 792 which is also one of the sections of Part XVI provides that "every person who obtains a certificate of dismissal or is convicted under the provisions of this Part shall be released from all further or other criminal proceedings for the same cause."

I am of the opinion that sec. 734 only applies to summary convictions and, therefore, that it is only one who has been tried by a Justice upon a charge of common assault, which is the only kind of assault punishable on summary conviction, who can claim its protection from subsequent civil proceedings. If that is the case here the defendant is entitled to the benefit of this section. One who has been tried summarily for one of the indictable offences specified in sec. 773 (c) is entitled to immunity under sec. 792 "from all further or other criminal proceedings for the same cause," but that is all. If, therefore, the accused was charged and convicted under sec. 773 (c) his only release is from further criminal proceedings. This is apparently the view taken of it by the Divisional Court in Ontario in Neville v. Ballard, 28 O.R. 588, and it is, to my mind, the only view to which it is open.

I think, therefore, that this paragraph as it stands is not well pleaded because it does not show that the information was for an assault punishable on summary conviction and that the conviction was a summary one. I might perhaps be justified in assuming that this was not a summary conviction, for the maximum fine for a common assault on summary conviction is $20 and here according to this plea the defendant was fined $100 but I prefer not to do so.

Walsh, J.

1918

Green

V.

Henneghan

Walsh, J.

1918

Green

V.

Henneghan

The parties of course know what the facts are and can adjust this opinion to them. If the defendant can bring this conviction within sec. 734 as I construe it he should have the chance.

The order will be that par. 4 of the statement of defence be struck out unless within four days of the service of the same upon the defendant's solicitors he amends it so as to allege that he was charged by the plaintiff with and convicted of an assault punishable on summary conviction.

The costs of this application will be to the plaintiff in any event of the cause.

Order accordingly.

Watt and Watt, solicitors for plaintiff.
Corey, Locke & Thomas, solicitors for defendant.

1918

[APPELLATE DIVISION]

Oct. 8

VAN DORN (Plaintiff) Respondent

v. FELGER (Defendant) Appellant Husband and Wife-Wrongful Harbouring and Detaining of Wife-Right of Husband to Damages-Joint Contract of Hire-Husband Justified in Leaving Employment-Right to Ask Wife to Leave-Right to Demand That Employer Refrain From Improperly Influencing Wife to Remain.

Where a contract of hire is entered into with a husband and wife and the circumstances justify the husband in leaving the employment he is entitled to ask his wife to go with him, and, although it may be that her separate contractual capacity entitles her to remain in order to fulfil her part of the contract, the husband has nevertheless the right to demand that the employer refrain from exercising improper influences over the wife in order to induce her to remain. It is an underlying condition of such a contract that the relationship of husband and wife and the incidents of that relationship shall not be disturbed.

The law recognizes the right of a husband to damages against any person whose wrongful conduct, even though it be not of an immoral nature, deprives the husband of the society and services of his wife, even if there has been absence of all affection on the part of the wife for the husband (Bannister v. Thompson, 29 O.L.R. 562, and Marson v. Coulter, 3 Sask. L.R. 485, 16 W.L.R. 157, referred to).

An appeal by defendant from a judgment by Walsh, J. in an action to recover damages for wrongfully and against the will

of the plaintiff receiving, harbouring and detaining the plaintiff's wife. Appeal dismissed with costs.

The appeal was heard by HARVEY, C.J., SCOTT, STUART and BECK, JJ.

C. F. Harris, for defendant, appellant.
W. S. Gray, for plaintiff, respondent.

October 8, 1918.

The judgment of the Court was delivered by

Cur. adv. vult.

STUART, J.-The defendant, a farmer, hired the plaintiff and his wife to work for him, the former in the fields, the latter as housekeeper, for the period from April 1, 1917, to December 31, 1917. The husband and wife were to get the proceeds of the crop grown on 22 acres of land as remuneration. About July 15, the plaintiff left the employ of the defendant but his wife refused to go with him and stayed on as housekeeper. Towards the end of December the plaintiff sued the defendant for damages for "wrongfully and with knowledge of the premises and against the will of the plaintiff receiving and harbouring and detaining Ann Van Dorn the wife of the plaintiff whereby the plaintiff lost the society and services of his said wife."

At the opening of the trial plaintiff's counsel moved for leave to amend the claim by adding this count: "In the alternative the plaintiff says that the defendant has alienated from him the said plaintiff the affections of the plaintiff's wife in consequence of which the plaintiff has lost the society and services of his wife and has thereby suffered damage."

This amendment though objected to was allowed and the trial proceeded. At the close of the case the trial Judge dismissed the claim added by amendment and reserved judgment on the original count. Subsequently he gave judgment for the plaintiff for $750 damages and costs and the defendant now appeals. [A summary of the evidence followed].

The trial Judge in his reasons for judgment used the following language:

"The impression made upon my mind during the trial by the evidence has been strengthened by my subsequent considera

App. Div. 1918

Van Dorn

V.

Felger

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tion of it. I think that the defendant was directly responsible
for the act of the plaintiff in quitting his employment when he
did, and that the refusal of his wife to go with him then, or
upon any of the subsequent occasions upon which he tried to
induce her to do so was largely due to the active encourage-
ment which the defendant gave her to stay where she was. I
do not credit at all the statement that her determination to stay
there was due in part to her anxiety to perform her contract
with the defendant and thus earn her share of the proceeds
of the crop that was to have been the plaintiff's reward for his
and her work. I think that the contract was with the plain-
tiff alone though his wife was to do her part in its performance,
and that it was an entire contract which was completely put
an end to when the defendant rendered, as he did, the plain-
tiff's performance of it impossible. I do not pay any atten-
tion to the subsequent settlement between the plaintiff's wife
and the defendant for her services under the contract for it
bears the ear-marks of having been brought about under the
exigencies of the occasion and with an eye to this litigation
which had then been commenced. Neither do I think that she
has proved her claim of abusive treatment on the plaintiff's
part. There had at an earlier stage in their married life been
friction between them, but my opinion is that when they moved
to the defendant's place they were living in comparative har-
mony. I can find nothing in the evidence to justify me in find-
ing that his treatment of her during their residence at the de-
fendant's place was in any sense cruel. Although upon the
evidence before me I have acquitted the defendant of any im-
propriety in his relations with this woman, I think that he
might have done more than he did to allay the suspicions which
the plaintiff had of him, instead of deliberately feeding the
flames of his jealousy as I am rather disposed to think that he
did. I think that but for him the plaintiff would have stayed
on and finished his contract. I think that but for him the
plaintiff's wife would have gone with him when he left. I
think that but for him she would have yielded to one of the
many attempts which he made to get her to leave the defend-
ant's home and come to his. I think that through him he has
been deprived of the comfort of his wife's society and of her
care in the management of his house and family."

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At first blush it would appear as if, in this case, the matter of legal liability for harbouring was very much complicated by contractual rights and obligations which are generally absent in cases of this nature. No doubt there was a contract between the husband and wife on one hand and the defendant on the other. For myself I should prefer to call it a joint contract rather than an "entire" one because I doubt if the husband had power without the wife's assent to bind her to keep house for a third party. By statute she had contractual capacity herself and was entitled personally to her wages.

But be all this as it may, it seems to me that, owing to what occurred, the matter of contractual rights is not so very important after all. The trial Judge does not specifically find that the plaintiff was wrongfully dismissed and it is to be observed that the plaintiff made no claim for damages for wrongful dismissal. If he had considered that the defendant had really dismissed him it is altogether likely that we should have had a claim for damages upon that ground especially when an action was begun on another ground. The meaning I attach to the trial Judge's finding that the defendant had rendered the plaintiff's performance of his contract impossible is that he made the conditions such that it was impossible for the plaintiff to stay—that is, not physically impossible, but morally impossible and with due self-respect, and that the plaintiff was justified in leaving.

Then also I think any legal obligation on the part of the wife to stay (which I am strongly inclined to think did not exist for the reason that once the husband was justified in leaving she also was so justified owing to the joint or entire contract) is really unimportant because the defendant insisted in his evidence that he had frequently told her that she was at liberty to go if she wanted to do so. The effect of this is, I think, that the defendant cannot shelter himself behind any legal obligation on the part of the wife to stay on as his housekeeper.

As between the husband and the wife I think that at least when once the husband became justified in leaving, he was entitled to ask his wife to come with him. It may be that owing to her present separate contractual capacity she might in this

8-A.L.R.

App. Div. 1918

Van Dorn

V.

Felger

Stuart, J.

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