Bush v. Seaton, 4 Ind. 522; Kimball v. Whitney, 15 Ind. 280; Stewart v. Davis, 18 Ind. 74; Paulman v. Claycomb, 75 Ind. 64.

The demurrer to the complaint was properly overruled. We have carefully examined the evidence, and do not think the trial court erred in overruling the motion of the appellant for a new trial. The signature of the decedent to 96 the note sued on was proven, and the finding of the court was, in all respects, sustained by the evidence.

The judgment is affirmed, with costs.

NEGOTIABLE INSTRUMENTS.-A promissory note, although by its terms payable after the death of the maker, is a valid instrument, where it contains a promise to pay a sum certain at a specified time after his death: Carnwright v. Gray, 127 N. Y. 92; 24 Am. St. Rep. 424. In determining whether an instrument, posthumous in its operation, is a will or not, the intention of the maker, to be gathered from the language and the attendant circumstances, should control: Hazleton v. Reed, 46 Kan. 73; 26 Am. St. Rep. 86, and note, showing when an instrument is a will or a deed. An instrument in the form of a note, but payable "after my decease, on demand," is a note: Note to Carlton v. Cameron, 38 Am. Rep. 622. The possession of a note is prima facie evidence of its ownership and right to sue: Bigelow v. Burnham, 90 Iowa, 300; 48 Am. St. Rep. 442; notes to Market etc. Nat. Bank v. Sargent, 85 Me. 349; 35 Am. St. Rep. 376; Carnwright v. Gray, 24 Am. St. Rep. 428.

EXECUTORS AND ADMINISTRATORS.-THE PRESENTATION OF A CLAIM against a decedent's estate need not be in any particular form, but only so as to give notice of its character and amount, and enable the executor to provide for its payment: Henderson v. Ilsley, 11 Smedes & M. 9; 49 Am. Dec. 41.

ADAMS V. MAIN.

[3 INDIANA APPEALS, 232.]

HUSBAND AND WIFE.-AN ACTION FOR THE ALIENATION OF A WIFE'S AFFECTIONS may be maintained without proof of adultery. Such an action, whether adultery is charged or not, is an action for seduction, and the wife is, under the statute, incompetent as a witness in such cases.

AN ACTION FOR THE ALIENATION OF A WIFE'S AF. FECTIONS is based on the loss of the consortium, and proof of actual pecuniary loss is not essential to recovery.

WITNESSES.-IN AN ACTION FOR THE ALIENATION OF A WIFE'S AFFECTIONS, it is improper to ask the husband, on his cross-examination as a witness, after he has testified in chief that he witnessed certain acts and conduct between his wife and the defendant, whether he inferred adultery from such acts and conduct, as this calls for the statement of a conclusion, and not a fact.

EVIDENCE.-IN AN ACTION FOR THE ALIENATION OF A WIFE'S AFFECTIONS, it is harmless error, if any, to permit the husband, who is plaintiff, to ask a witness if she had ever heard the

neighbors talk about his wife and the defendant going to a show, if a negative reply is given.

EVIDENCE.-IN AN ACTION FOR THE ALIENATION OFA WIFE'S AFFECTIONS, after the husband, who is plaintiff, has shown that, while the children were sick, their mother left them, and accompanied the defendant to places of amusement, it is proper to exclude testimony of a general character as to how the plaintiff's wife treated her children.

INSTRUCTIONS.-IN AN ACTION FOR THE ALIENATION OF A WIFE'S AFFECTIONS, it is not error to charge the jury that no inference is to be drawn for or against either party from the fact that the wife has not testified. She is, under the statute, incompetent as a witness in such an action.

INSTRUCTIONS.-IN AN ACTION FOR THE ALIENATION OF A WIFE'S AFFECTIONS, where the husband is plaintiff, it is not error to charge the jury that he cannot recover if the defendant made presents to her, and gave her other attentions, with the consent of the husband, the defendant having no evil intent, and not having had carnal knowledge of her, although she conceived a fondness for him, as a consequence of such acts.

INSTRUCTIONS-APPEAL.-No ground is presented for review on appeal, because of the refusal to give instructions requested, If it appears that they were not asked until after the commencement of the argument.

APPEAL.-IT WILL BE PRESUMED, on appeal, that a ruling of the trial court sustaining an objection to a question asked a witness was correct, in the absence of any showing to the contrary.

PLEADINGS-AMENDMENTS AND ADDITIONS TO.-It is very largely within the discretion of the trial court to permit the filing of additional paragraphs of pleadings and amendments after the issues are closed; and a ruling allowing this to be done is not ground for a reversal of judgment, unless the appellant shows affirmatively that he was prejudiced by it.

TRIAL VENIRE DE NOVO.-The failure of the jury to find upon all the issues is not a defect appearing upon the face of the verdict for which a venire de novo will be awarded.

RES JUDICATA.-THE FINDING OF THE JURY UPON ONE PARAGRAPH ONLY of the complaint, where there is evidence tending to support another paragraph, precludes an action on the cause averred in the paragraph as to which no finding was made.

M. P. Turner and M. E. Forkner, for the appellant.

J. M. Morris and C. S. Hernly, for the appellee.

233 REINHARD, J. The appellee sued the appellant for debauching his wife. Originally, the complaint was in one paragraph, and in it there was a charge of adultery.

After the issues had been closed and the trial entered upon, the appellee, by leave of court, filed a second paragraph of complaint, from which the charge of carnal knowledge was omitted, and which declared simply upon an alienation, by the appellant, of the affections of the appellee's wife. No demurrer was filed to either paragraph.

234 Issues were joined, the cause was tried by a jury, and there was a verdict in favor of the appellee on the second, or additional, paragraph of the complaint, there being no express finding on the first.

The appellant made unsuccessful motions for a venire de novo and for a new trial, and the ruling of the court upon these motions is reserved by proper exceptions, as also by the assignment of errors.

The appellant requested the court to instruct the jury that the action could not be maintained without proof of adultery. The instruction was refused. The record shows, and the appellant concedes, that the request was not made until after the commencement of the argument, and the question of whether or not there was error in refusing to give the instruction is, therefore, not properly presented. The point is made, however, upon the sufficiency of the evidence to sustain the verdict, and, in the discussion of this question, the appellant's counsel urge upon us with much earnestness the consideration that sexual connection must be established before there could be any recovery.

As the finding was expressly upon the second paragraph of the complaint, in which the charge is confined to that of alienating the affections of the wife from her husband, and as there was neither demurrer nor motion in arrest of judgment, and there is no assignment of error that the complaint fails to state facts sufficient to constitute a cause of action, we do not see how the appellant is in any position to present the question he asks us to decide. The point has been decided, however, against the appelkant in Higham v. Vanosdol, 101 Ind. 160.

The appellant next insists that the gist of the second paragraph of the complaint is for the loss of services, and, as there was no proof of any actual pecuniary loss, the evidence did not sustain the averments in this paragraph. In this view we cannot concur. It is, perhaps, true that the theory of such an action was originally the loss of services, for it 285 was presumed that by the seduction or alienation the wife's services were rendered less valuable. But, whatever may have been the principle, originally, upon which this class of actions was maintainable, it is certain that the weight of modern authority bases the action on the loss of the consortium-that is, the society, companionship, conjugal affections, fellowship, and assistance. The suit is not regarded in the nature of an action by a master for the loss of the services of his servant, and it is not necessary that there should be any pecuniary loss whatever: Rinehart v. Bills,

82 Mo. 534; 52 Am. Rep. 385; Bigaouette v. Paulet, 134 Mass. 123; 45 Am. Rep. 307; Sikes v. Tippins, 85 Ga. 231; Heermance v. James, 47 Barb. 120; Jones v. Utica etc. R. R. Co., 40 Hun, 349; Cooley on Torts, 2d ed., 261; Bigelow on Torts, 328, 333-340.

It is true that the loss of services may still constitute one of the elements of damages in the case, for the alienation of the wife's affections may involve the loss of such services, but not necessarily so. Mr. Bishop states the law upon this subject as follows: "One who, by improper means, alienates a wife's affections from her husband, though she neither leaves him nor yields her person to the seducer [the italics are ours], injures the husband in that to which he is entitled, brings unhappiness to the domestic hearth, renders her mere services less efficient and valuable, and inflicts on him a damage in the nature of slander; so that for the redress of his wrong an action is maintainable": 1 Bishop on Marriage and Divorce, new ed., sec. 1361.

As an evidence that, whatever may have been the rule formerly, the trend of authority now is to treat the consortium as the basis of the action, it may be said that in many jurisdictions of this country, including our own, it is now held that the wife may maintain an action for the alienation of the affections of her husband, and that this may be done even in some jurisdictions where the common law still prevails: 1 Bishop on Marriage and Divorce, new ed., sec. 1357 et seq; Haynes 236 v. Nowlin, 129 Ind. 581; 28 Am. St. Rep. 213; Postlewaite v. Postlewaite, 1 Ind. App. 473.

The reasoning in these cases is, that inasmuch as the husband has the right to sue for the loss of the consortium of the wife, there can be no intelligent reason why she should not possess the right to sue for the loss of the society, companionship, affection, and protection of the husband, which the law has vouchsafed to her. Surely, the analogy would not hold good if the right of action of the husband for the alienation of the affections of his wife were based solely upon the loss of her services, for, under the common law, the wife, who was considered the inferior being, had no property rights in the services of the husband: 3 Blackstone's Commentaries, 143.

But, even if we were to concede that the husband's right to maintain this action is based upon the loss of services of the wife, as the appellant contends, it does not necessarily follow, by any means, that there must have been actual separation of the parties, for, as we have seen from the quotation from Bishop,

one of the very consequences of the loss of the affections is, that it lessens the value and efficiency of her services, even if she continues to perform them. It seems plain, therefore, that, if it can be shown that the defendant did that which impaired the value of such services, he would still be liable, even though he did not deprive the husband of them entirely. The position of the appellant on this point is, therefore, not maintainable, even from his own premises. The facts proved amply sustain the averments of this paragraph. Error is claimed, also, in the giving of two instructions. The first of these is as follows: "5. This being an action by a husband for the seduction of his wife, the wife is excluded from testifying, and is not a competent witness, and no inference is to be drawn for or against either party to this suit from the fact that the plaintiff's wife has not testified."

237 Section 501 of the statutes provides that the husband shall be a competent witness in a suit for the seduction of his wife, but she shall not be competent.

The contention of counsel for appellant that the second paragraph of the complaint, upon which the verdict was predicated, does not make a case of seduction cannot prevail. The term "seduction" does not necessarily imply carnal knowledge, although it is generally used in that connection. It was doubtless the intention of the framers of this section to apply that term to all cases of this class, whether there is a charge of adultery or not, and to render the wife incompetent as a witness in such cases. That these cases all fall under the head of seduction is very clearly stated in the following quotation from Bishop: "The husband being entitled to the society and services of the wife, it follows, from the doctrine of seduction,

that he may recover his damages against anyone who unlawfully entices her away, though nothing transpires or is meant in the nature of criminal conversation” (the italics are our own): 1 Bishop on Marriage and Divorce, new ed., sec. 1360. See Higham v. Vanosdol, 101 Ind. 160. We think the instruction was proper.

The other instruction complained of is this: "8. If the defendant made presents to plaintiff's wife, and gave her other attentions, by and with the consent of the plaintiff, with no evil intent, and not intending to alienate her or her affections from him, and never had carnal knowledge of her, the plaintiff cannot recover, even though, as a consequence of such acts, she conceived a fondness and affection for the defendant.”