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transgresses those rules of conduct which decency requires f and affection demands from him, and in an open, notorious, and undisguised manner, carries on a criminal correspondence with other women, he cannot maintain this action (5). So if a wife be suffered to live as a prostitutes with the privity of the husband, and the defendant has thereby been drawn in to commit the act of which the husband complains, the action cannot be maintained (6). But if the husband has been guilty of negligence merely, or inattention to the behaviour and conduct of his wife with the defendanth, not amounting to a consent, such circumstance will go in mitigation of damages only. In Winter v. Henn, 4 C. & P. (N. P.) 498, Alderson, J. in
f Wyndham v.Lord Wycombe, 4 Esp. Allison, Bull. N. P. 27. Hodges v.
N. P. C. 16 and Sturt v. Marq. of Windham, Peake, N. P. C. 39. Blandford, there cited, both ruled by h Agreed by the court in Duberley v. Kenyon, C. J.(4).
Gunning, 4 T. R. 651. g Per Lord Mansfield, C. J. in Smith v.
which was tried on the 4th of December, 1739, and a verdict fo for the plaintiff, damages 5001. Mrs. Cibber having been prevented by the detention from performing on the stage, where she used to receive a large salary.
(4) Although the opinion of Lord Kenyon, C. J. as delivered in Sturt v. Marquis of Blandford, coincided with the position in the text, yet the jury in that case found a verdict for the plaintiff, with £100 damages.
(5) Lord Alvanley, C. J. differed in opinion with Lord Kenyon on this point : Lord A. thought that the infidelity or misconduct of the husband could not be set up as a legal defence to the adultery of the wife; that circumstance alone which struck him as furnishing any defence was, where the husband was accessory to his own dishonour ; in that case he could not complain of an injury which he had brought on himself, and had consented to; but that the wife had been injured by the husband's misconduct, could not warrant her in injuring him in that way, which was the keenest of all injuries. In a case of this kind, therefore, (Bromley v. Wallace, 4 Esp. N. P. C. 237,) Lord Alvanley directed the jury to consider evidence of infidelity in the husband, as going in mitigation of damages only, and not as furnishing an answer to the action, or as entitling the defendant to a verdict.
(6) “If the wife is a prostitute, and the husband is not privy to it, it goes only in mitigation of damages.” Per de Grey, C. J. in Howard v. Burtonwood, and Buller's N. P. 27. S. P. In Calcraft v. Earl of Harborough, the plaintiff obtained a verdict, damages £100; although it was proved that the marriage had been concealed from the mother of the wife, and the husband very seldom saw his wife, and suffered her to remain with her mother, as if she were single, and to continue to perform at the theatre in her maiden name. 4 C. & P. 499. N. P. Tindal, C. J.
summing up said, “I apprehend the law to be, that the plaintiff will be entitled to recover, unless he has, in some degree, been a party to his own dishonour, either by giving a general licence to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery with this defendant, or by having totally and permanently given up all the advantage to be derived from her society. If you should be of opinion that the plaintiff has done any of these three things, then the defendant will be entitled to your verdict.”
In an action for adultery with the plaintiff's wife, it appeared that the plaintiff and his wife had agreed to live separately: the plaintiff proved several acts of adultery committed by the defendant after the separation of the plaintiff and his wife, but there was not any direct proof of adultery before the separation. Lord Kenyon, C. J. being of opinion that the gist of the action was the loss of the comfort and society of the wife, which was alleged in the declaration in the usual manner, but was not supported by the evidence, nonsuited the plaintiff. On a motion for a new trial, the court concurred in opinion with the chief justice.
In a casek, where the husband and wife had entered into a deed of separation with trustees, and the wife was living separate from the husband, though not in pursuance of the terms of the deed, at the time of the adulterous intercourse, Lord Ellenborough, C. J. said that he did not consider the question, “whether the mere fact of separation between husband and wife by deed, was such an absolute renunciation of his marital rights, as prevented the husband from maintaining an action for the seduction of his wife,” as concluded by the preceding decision in Weedon v. Timbrell. But in the case then before the court, the court being of opinion that, taking the whole deed into consideration, it was evident that the only separation in the contemplation of the parties, was a separation with the approbation of the trustees; and that, as the wife had left the husband without such approbation, she was not at the time of the adulterous intercourse living separate from the husband by his consent, and consequently the event and situation provided for in the deed had not happened; and in that view of the case, there could not be any question, but that the plaintiff's right to recover was not affected by the deed; and further, if the wife had left the husband with the approbation of the trustees, yet as the deed had provided that the wife might have the care of the younger children of the marriage, and visit the others, more
i Weedon v. Timbrell, T. R. 357.
k Clambcrs v. Caulfield, 6 East, 244.
especially when they should be ill, so as to require the attention of a mother,” the husband had not in this case, (as it was holden that he had done in the case of Weedon v. Timbrell,) given up all claim to the benefit to be derived from the society and assistance of his wife; consequently, that the case of Weedon v. Timbrell, allowing it the fullest effect according to the terms of it, could not be considered as an authority against the plaintiff in this action. Where several defendants have carried on an adulterous intercourse with the plaintiff's wife, the plaintiff may maintain separate actions, although the cause of action has accrued during the same period.
II. Of the Venue Declaration—Plea.
This is transitory action : and, consequently, the venue may be laid in any county, subject, however, to being changed, upon the usual affidavit, that the whole cause of action arose in another county, and not elsewhere out of such other county. Although the marriage be a material inducement to the right of the plaintiff, to maintain the action in respect to the trespass on the wife, yet it forms no part of the cause of action : the trespass committed on the wife constitutes the whole cause of actionm.
The declaration in this action is very concise; in substance it is as follows: viz. that the defendant, with force and arms, made an assault on the wife of the plaintiff, and debauched and carnally knew her, whereby the plaintiff wholly lost and was deprived of the comfort, society, and fellowship of his wife, and of her aid and assistance in his domestic affairs, and other lawful business.
The general issue in this action is, not guilty.
I Gregson v. M‘Taggart, 1 Campb. 415.
m Guard v. Hodge, 10 East, 32.
(7) By stat. 21 Jac. 1. c. 16. 8. 3. all actions on the case, (other than for slander,) must be commenced and sued within six years next after the cause of such action; and actions of trespass, of assault, battery, wounding, and imprisonment, within four years. It appears, from the language of the court, in Cooke v. Sayer, 6 East, 388, that they considered the action for adultery as falling within he former description of actions, and consequently that the limitaion of time was six years. But see ante, p. 9.
action; but the gist of the action being the injury sustained by the husband in consequence of the adultery, the proper plea under that statute is, not guilty within six years". In a case where the plaintiff complained “of a plea of trespass, that the defendant, with force and arms, assaulted and seduced the plaintiff's wife, per quod consortium amisit, &c. contra pacem, &c." and the defendant pleaded, not guilty within six years; on general demurrer, a question arose, whether the action was trespass or case.
Cooke v. Sayer was cited. Lord Ellenborough, C. J. said, it might be material to consider that point, if the question were, whether the limitation of six or four years only applied to this case; but the defendant having taken the longer period, and pleaded not guilty within six years, that of course must include not guilty within four years, and the plea not having been specially demurred to, was therefore good in either way of considering it; he added further, that he did not know what his opinion would have been if the point had then first arisen ; but it having been considered in Cooke v. Sayer as an action on the case, he should be inclined so to consider it. Lawrence, J. cited the case of Parker v. Ironfield, in which Buller, J. had considered an action of a similar nature for the seduction of a daughter, per quod servitium amisit as an action on the case. Le Blanc, J. did not give any opinion as to this point; but observed, that the action before the court, be it either case or trespass, was within the statute of limitations; therefore, in either way of considering it, the plea was a good bar (not being specially demurred to.)
Money cannot be paid into court in this action. Stat. 3 &4 W. 4. c. 42. s. 21.
III. Of the Evidence, and herein of the Statutes relating to
Marriage. In other actions, evidence of cohabitation, general reputation, acknowledgment of the parties and reception by their friends, is sufficient to establish the relation of husband and wife. But in this action, in order that it may not be converted to bad purposes, by persons giving the name and character of wife to women to whom they are not married, it has
n Cooke v. Sayer, 2 Kenyon, 371. 6
East's Rep. 388. 2 Burr. 753. Bull.
N. P. 28. o Macfadzen v. Olivant, 6 East, 387.
But see Woodward v. Walton, ante, p. 9, and Ditcham v. Bond, 2 M. & S. 436.
been holden to be indispensably necessary for the plaintiff to prove the marriage ceremony having been performed, either by the testimony of some person who was present at the marriage, or by the production of the register, or of an examined copy thereofP. Such strictness being required as to the proof of marriage in this action, it will be necessary to make some remarks touching marriage in general, in order that the reader may be apprised of the solemnities which the law deems essential to constitute a valid marriage.
At the common lawy, any contract made per verba de senti, or in words of the present, or in case of cohabitation, per verba de futuro also, between persons able to contract, was deemed a valid marriage to many purposes, and the parties might have been compelled in the spiritual courts to celebrate it in facie ecclesiæ. In order to constitute a valid marriage, at common law, it appears to have been wholly immaterial whether the ceremony was performed by a Protestant or Roman Catholic priest, in a private lodging or a public chapel. Hence, where the marriage ceremony was performed in a private lodging by a Roman Catholic priest, in the year 1705; and upon evidence that the prisoner, in answer to the question whether he would have the woman for his wedded wife, said that he would; and that the woman answered affirmatively to the question put to her, whether she would have Mr. Fielding for her husband"; Mr. Justice Powel, upon a question of felony, considered it as a marriage contracted per verba de presenti. It appears doubtful, whether, at the common law, it was necessary that the ceremony should have been performed by a person in holy orders (see the argument in R. v. Luffington, i Burr. S.C. 232. and some remarks on this point, i Bl. Com. 439. See also the preamble to stat. 57 Geo. 3. c. 51.) certainly the ecclesiastical law required it, and if a husband demanded a right in the ecclesiastical court, which was only due to him by the ecclesiastical law, it was necessary for him to prove in that court, that he had been married by a person in holy orders. Haydon v. Gould, Salk. 119. See Jacob's note to Roper's Law of Property arising from the relation between husband and wife, Vol. 2. Addenda No. I. p. 445, cited in a note to R. v. Bathwick, 2 B. & Ad. 641.
During a long period, Lord Hardwicke's act, 26 Geo. 2. c. 33. was the only statute relating to marriage, but, lately, several statutes have been made with a view to amend the
p Morris v. Miller, 4 Burr. 2057. 1 Bl. q See R. v. Inhabitants of Brampton,
R. 632. S. C. and Bull. N. P. 27. 10 East, 283. and per Lord Mansfield, C. J. in r R. v. Fielding, 5 St. Tr. 644. Jesson Birt. v. Barlow, Doug. 174. S. P. v. Collins, Salk. 487. 6 Mod. 155.