ther's, were admissible. Whether any of this testimony related to defendant's acts or conduct does not very clearly appear, but the court said that most of this evidence was explanatory of the wife's residence with her parents, and was the only means, except examining her as a witness, to comprehend it, and that it was daily conduct, explained by concurrent declarations.

In a wife's action against her husband's mother for alienation of his affections, the husband's declarations that defendant had asked him to put plaintiff in a sanitarium, and had employed a doctor for that purpose, and his declaration, in explanation of his attempt to send her to a sanitarium, that it was his mother's wish, were no parts of the res gestæ, but were hearsay and incompetent. Magers v. Magers (1909) 143 Iowa, 750, 123 N. W. 330.

Derham V. Derham (1900) 125 Mich. 109, 83 N. W. 1005, was an action by the wife against her husband's father; she testified that her husband left her, and subsequently wrote asking forgiveness, and said that he would not have gone if it had not been for his father, and that his father was mad because he took a horse on one occasion, to go after plaintiff's mother; another witness testified that the husband told him his folks did not like plaintiff; that he had a chance to marry others, and wished he had; plaintiff's father testified that the husband came to his house early one morning, and, as a reason for coming so early, said he could not get a horse any time except before his father was up, and plaintiff's mother testified that he said his father did not want him to have the horse. It was held that the testimony of the father and mother was hearsay and inadmissible; that the other verbal statement testified to might have been admissible to show the husband's feelings toward plaintiff, but that, as substantive proof of defendant's relations to the parties, it was hearsay, and the jury should have been instructed to discriminate between its value to show the husband's feelings, and its use as proof of

defendant's relations to the parties; and that the testimony relating to the letter was also hearsay, as well as inadmissible because the wife was not competent to testify against the husband.

In Preston v. Bowers (1861) 13 Ohio St. 1, 82 Am. Dec. 430, defendant, who seems to have been a mere friend of the wife, had a number of interviews with her both before and after her marriage to plaintiff, and, in some of them, told her that her friends were dissatisfied with her going West, and apparently attempted to persuade her to return to Ohio, where such friends lived during plaintiff's absence from home she left for Ohio, following an interview with defendant who induced her to consent, and who wrote a letter to her husband which she copied; the wife, after each of these interviews with defendant, repeated what defendant said to plaintiff, and expressed her affection for plaintiff. The court held that her declarations showing the state of her feelings toward plaintiff were admissible, but that the words and acts of defendant reported by her to plaintiff were nothing but hearsay and inadmissible; also, that there would have been no practical difficulty in separating them from her declarations respecting her affections, and hence that their admission could not be justified on the ground that they were so blended with the declarations regarding her affections as to be inseparable.

But in a wife's action for alienation of her husband's affections, she was permitted to testify that she met her husband after the separation, and asked him what the matter was, and that he said his father had persuaded him to go home; that she asked him what he was going to do with her, and that he said he was going to leave her, and had promised his father he would leave her. On motion for a new trial the court held this admissible, saying that the effect of the ruling was, at most, to permit plaintiff to testify to the fact of separation, and the reason assigned as a part of such act; and that proof of the act of the husband in separating from and abandoning his wife was admissible, and, proof of the act being admissible, his declarations at the time, explanatory of the act, were also admissible as a part of the res gestæ. Baker v. Baker (1885) 16 Abb. N. C. (N. Y.) 293.

And a statement by the wife to her husband, when she was removing her personal property from her husband's house with the assistance of her brother, that her brother would not let her remain with plaintiff, was admissible in an action against the brother, if made in the brother's presence and not repudiated by him; as his failure to repudiate it would constitute an admission. Bathke v. Krassin (1901) 82 Minn. 226, 84 N. W. 796.

So, in Smith v. Smith (1919) S. D., 173 N. W. 843, in overruling an objection to the testimony of the plaintiff that her husband, in reply to her question whether he cared for her any more, said that if what his brother, one of the defendants, said was true, he did not, otherwise he did, the court said that the matter did have a bearing on the state of mind of the husband, and, in any event, was not in the remotest degree prejudicial. And where defendant cross-examined plaintiff as to statements made by her husband, her testimony, on redirect examination, that her husband told her that on one occasion after they had separated his father and mother forbade him to leave the house to meet plaintiff, the father saying that he could not go unless he went over his dead body, could not be complained of by defendant. This testimony was, however, admitted without objection, and apparently the only complaint made on appeal was that plaintiff was incompetent to testify thereto. Nichols v. Nichols (1898) 147 Mo. 387, 48 S. W. 947.

d. Miscellaneous declarations.

In Dodge v. Rush (1906) 28 App. D. C. 149, 8 Ann. Cas. 671, where the court excluded plaintiff's testimony as to her husband's declarations, but the nature of the declarations did not appear, the court said that the testimony was properly excluded, if it had relation to defendant or her conduct.

And where, in the husband's action

for alienation of his wife's affection and crim. con. it appeared that the wife, prior to the marriage, was living at defendant's house, and that she stayed there for two months after the marriage, it was held error to permit the husband to testify that she told him that she would not marry him unless he would consent that she could remain at defendant's house for some time. Carter v. Hill (1890) 81 Mich. 275, 45 N. W. 988. The court said that his testimony was open to the criticism that it was hearsay, but it would seem that the principal ground of its decision was that the husband was incompetent to testify.

And a wife's statements to a man who had seen her in a compromising situation that she could not afford to break with defendant because a certain woman was trying to get her out of the church choir, and that defendant had influence enough to keep her in, were improperly admitted in an action by the husband for seduction, over the objection that they were hearsay and not a part of the res gestæ. Dance v. McBride (1876) 43 Iowa, 624.

The declaration of the erring spouse as to act and conduct of defendant, and which is not a declaration tending to show mental condition or the state of the affections of such spouse, is inadmissible. Fuller v. Robinson (1910) 230 Mo. 22, 130 S. W. 343, Ann. Cas. 1912A, 938. This was, however, said incidentally in this case, in discussing authorities cited on the question of the admissibility of the wife's declarations, which, the court says, contained no reference to any word, act, or conduct of defendant.

But in a husband's action for alienation of affections and crim. con., a letter from plaintiff's wife to defendant, written while she was absent from home on a visit, and inviting defendant to call, was admissible, where it explained and accounted for a visit defendant made her, though it was written after the time of the alleged adultery. Puth v. Zimbleman (1896) 99 Iowa, 641, 68 N. W. 895.

But in an action by the wife against another woman, a letter from the husband to plaintiff, in which he inti

mated that he loved defendant, and not plaintiff, was inadmissible. Whitman v. Egbert (1898) 27 App. Div. 374, 50 N. Y. Supp. 3. The court said that it was not like a spontaneous, oral declaration accompanying an act, and therefore part of it, but was a deliberate ex parte narrative of facts and opinions; and that an inference that defendant was responsible for the husband's infatuation must be based on evidence tending to show such fact, other than the husband's acts or declarations. But, as to the admissibility of declarations of affection for defendant, for a limited purpose, see Rose v. Mitchell (1899) 21 R. I. 270, 43 Atl. 67, and Warren v. Graham (1916) 174 Iowa, 162, 156 N. W. 323, cited infra.

In Stanley v. Stanley (1902) 27 Wash. 570, 68 Pac. 187, it was held, in a wife's action against her husband's parents, that evidence that long after the separation of the husband and wife, and several months after the action was commenced, the husband asked the wife to live with him, but did not want his parents to know about it, was incompetent. While the court intimates that the purpose of introducing such evidence was to raise an inference that the parents caused the separation, the declaration does not seem to have referred to any act of defendants, and the ground of the court's holding is that acts and declarations might be shown up to the time of the separation, for the purpose of showing affection, but that declarations made so long after the separation as not to be a part of it are not competent against defendant.

Hillers v. Taylor (1918) 108 Md. 148, 69 Atl. 715, was an action by the wife against the woman with whom her husband boarded, for alienation of affections and crim. con.; the wife had visited him there, and on asking why there could not be two beds in one room, so that she and her husband could occupy the same room, was told by the husband that defendant objected to having two beds in the room; on another occasion, when she objected to their separation and offered to go with him to defendant's house to live, he said that defendant did not want

her there. The court held that, if these statements of the husband were expressions of the husband's opinion as to the wishes or preferences of defendant, they violated the rule excluding the opinions of witnesses other than those of experts, especially when unaccompanied by a statement of facts affording a reasonable foundation for them; and that, if regarded as repetitions of declarations made to him by defendant, they were inadmissible as hearsay; and that they were not admissible as tending to show the effect on the husband's mind of defendant's act. The holding on this last question will be further discussed in a subsequent part of the note. On a second appeal in this case (1911) (116 Md. 165, 81 Atl. 286), it was held that a motion by defendant to strike from the record all of plaintiff's testimony with reference to conversations with her husband, on the ground that they had not been shown to have been caused or induced by the acts of defendant, was properly overruled. The court, however, refers with apparent approval to its holding on the first appeal that evidence of statements made to plaintiff by her husband, relating to the wishes of defendant, was inadmissible; and, while the opinion is not very clear, it would seem probable that the evidence admitted on the second trial, and which defendant moved to strike out, did not include the declarations of the husband regarding defendant's wishes and declarations.

See also the following cases, in which it is not clear whether the declarations involved referred to defendant's acts or conduct:

-Willey v. Howell (1914) 159 Ky. 805, 169 S. W. 519, which was an action by the husband against his father-in-law, and in which it was held that conversations between plaintiff and his wife, illustrating the state of feeling between them, and pertinent to show whether she left him voluntarily or was persuaded to leave by defendant, were competent evidence;

-McKenzie v. Lautenschlager (1897) 113 Mich. 171, 71 N. W. 489, an action by the husband against his wife's parents, in which it was held that statements by the wife, not in the presence of defendant, and letters written by her, were admissible in plaintiff's favor, for the purpose of showing the state of mind of the wife towards the husband; the third element. That is, when defendant's misconduct has been shown, and it has also been shown that the husband and wife have separated or that plaintiff has lost the affections of the other spouse, such declarations are held admissible to show that the separation, or the loss of affection, was the effect of such misconduct, and not the effect of some other cause. Williams v. Williams (1894) 20 Colo. 51, 37 Pac. 614; Gilbreath v. Gilbreath (1908) 42 Colo. 5, 94 Pac. 23; Hardwick v. Hardwick (1906) 130 Iowa, 230, 106 N. W. 639; Miller v. Miller (1912) 154 Iowa, 344, 134 N. W. 1058; Warren v. Graham (1916) 174 Iowa, 162, 156 N. W. 323; Nevins v. Nevins (1904) 68 Kan. 410, 75 Pac. 492; MELCHER V. MELCHER (reported herewith) ante, 492; Schneider v. Tapfer (1919) - Or. -, 180 Pac. 107; Jones v. Jones (1917) 96 Wash. 172, 164 Pac. 757; White v. White (1909) 140 Wis. 538, 133 Am. St. Rep. 1100, 122 N. W. 1051.

-Manwarren v. Mason (1894) 79 Hun, 592, 29 N. Y. Supp. 915, in which declarations of the husband were held inadmissible in an action by the wife;

-Winsmore v. Greenbank (1745) Willes, 577, 125 Eng. Reprint, 1330, in which it was held that, in an action for enticing away and detaining plaintiff's wife, the declarations of the wife were properly excluded.

III. Other objections.

In a wife's action against her husband's parents, her testimony as to a conversation with her husband after the trouble began, but before the separation, concerning defendants and their treatment of plaintiff, in which the husband said that it was not right for defendants to do as they did, was held inadmissible, as it took place at a time to create a suspicion of collusion. Townshend V. Townshend (1911) 84 Vt. 315, 79 Atl. 388.

In a wife's action against another woman for alienation of her husband's affections, her testimony that her husband told her he had been visiting defendant for four years, for immoral purposes, and that if she would forgive him and comply with his wishes respecting certain property he would never go there again for any purpose, was incompetent, though not offered as tending to show the state of mind of the husband towards the defendant. Sanders v. Burnham (1917) 91 Vt. 480, 100 Atl. 905. The court said that it was a declaration in the nature of a confession to the effect that defendant was guilty of the act charged in the suit, and had no tendency to prove the husband's state of mind towards defendant, and that, moreover, the declaration disclosed that it was made after trouble arose between plaintiff and her husband, whereas such declarations were only admissible if made at a time when there existed no ground to suspect collusion.

429, 112 N. W. 1079, an action for alienation of affections and crim. con., a copy of a letter claimed to have been written by plaintiff's wife to defendant, and tending strongly to show improper relations between them, was held properly excluded, apparently on the sole ground that a foundation for secondary evidence had not been laid.

IV. Admission for limited purpose. A cause of action for alienation of affections would seem to consist of three elements: The wrongful conduct of defendant, plaintiff's loss of the affection, or consortium, of the other spouse, and a causal connection between such conduct and such loss.

Probably all courts would agree that the declarations of the alienated spouse concerning the acts and conduct of defendant are not admissible to prove the first of these elements, that is, defendant's guilt. The courts which hold such declarations admissible for any purpose usually lay stress on the fact that they are not admissible for the purpose of showing such guilt.

Colorado. - Williams v. Williams (1894) 20 Colo. 51, 37 Pac. 614; Gilbreath v. Gilbreath (1908) 42 Colo. 5, 94 Pac. 23.

Some courts, however, seem to go beyond this, and hold that the declarations are admissible for the purpose of showing the "state of affection between husband and wife;" "the state of the wife's feelings towards her husband;" "the condition of his mind in consequence of any influence exerted thereon;" "the husband's feelings towards plaintiff;" or "the mental state of the alienated spouse." Hardwick v. Hardwick (1906) 130 Iowa, 230, 106 N. W. 639; Welty v. Sparks (1917) 179 Iowa, 1390, 162 N. W. 614; Moir v. Moir (1917) 181 Iowa, 1005, 165 N. W. 221; Derham v. Derham (1900) 125 Mich. 109, 83 N. W. 1005; MELCHER V. MELCHER (reported herewith) ante, 492; Remsen v. Hay (1882) 14 N. Y. Week. Dig. 443; Pollock v. Pollock (1894) 9 Misc. 82, 29 N. Y. Supp. 37; Schneider v. Tapfer (1919) Or. -, 180 Pac. 107. The expressions quoted would seem to mean that the declarations are admissible to prove the loss of the affections of the other spouse as well as the cause of such loss; or, perhaps, to show the existence of affection prior to the alleged alienation. Of course, it is only in connection with declarations concerning defendant's acts and conduct that any doubt

on this point arises. Some other declarations of the alienated spouse, not relating to defendant's acts and conduct, are undoubtedly admissible to prove these matters.

In Williams v. Williams (1894) 20 Colo. 51, 37 Pac. 614, a wife's action against her husband's mother, the husband's declarations to plaintiff that his mother wanted him to leave her, and was coming to the city where they were living to take him away, and that his mother had all his money, and would not give it to him until he separated from plaintiff, were held admissible, in connection with other evidence showing the disposition and effort on defendant's part to cause a separation, to show what influenced the husband's conduct in separating from his wife; but not admissible to show what the mother's conduct was. The court said: "In this case, while the husband of plaintiff was not a party to the suit, yet the action directly involved not only his mother's conduct, but his own conduct in respect to his wife. The precise issue was whether defendant had wrongfully and maliciously induced her son to separate himself from and abandon plaintiff as his wife, thus depriving her of the society, comfort, and support of her husband. From the character of the issue, therefore, it was not only proper to show the declarations and acts of defendant in respect to her son's marriage, including her efforts to secure a separation of the young married couple, but it was also necessary to show the effect of the mother's conduct upon the son. It was, in our opinion, proper to admit in evidence declarations of Edward, for the purpose of showing what influenced his conduct in separating from his wife. It is true his mere declarations were not admissible to show what his mother's conduct was, nor was it, of itself alone, material how bad his mother's conduct was towards plaintiff; for, no matter how bad her conduct was, she could not properly be held liable in this action, unless the effect of her conduct was such as to cause Edward to become estranged from and desert his wife."