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 period1.

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 action m.

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.

The statute of limitations (7) may be pleaded in bar of this

1 Gregson v. M'Taggart, 1 Campb 415. m Guard v. Hodge, 10 East, 32.

(7) By stat. 21 Jac. 1. c. 16. s. 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 thereof P. 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 law, any contract made per verba de præsenti, 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 præsenti. 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, 1 Burr. S. C. 232. and some remarks on this point, 1 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. Šee 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. R. 632. S. C. and Bull. N. P. 27. and per Lord Mansfield, C. J. in Birt. v. Barlow, Doug. 174. S. P.

q See R. v. Inhabitants of Brampton, 10 East, 283.

r R. v. Fielding, 5 St. Tr. 644. Jesson v. Collins, Salk. 487. 6 Mod. 155.

provisions of that act, and finally it has been altogether repealed.

The first of these, viz. 3 Geo. 4. c. 75. (8) after repealing the 11th sect. of the 26th Geo. 2. c. 33. relating to marriages, by license, of minors, without consent of proper parties, by s. 2. enacts that marriages solemnized by license before the passing of this act, that is before 22 July, 1822, without the consent required by the 11th section of Lord Hardwicke's act, shall be good, (if not otherwise invalid,) where the parties shall have continued to live together as husband and wife, until the death of one of them, or until the passing of this act, or shall only have discontinued their cohabitation for the purpose or during the pending of any proceedings touching the validity of such marriage. [As to what shall not be a living together as husband and wife within this section, see Poole v. Poole, 2 Cr. & J. (Ex) 66 and 2 Tyrw. 76.] But this act, by s. 3. is not to render valid any marriage which has been declared invalid, by any court of competent jurisdiction, before the 22nd of July, 1822; nor any marriages, where either of the parties shall at any time afterwards have lawfully intermarried with any other person. This 3rd section (which is not repealed by 4 Geo. 4. c. 76. Rose v. Blakemore, Ryan and Moody, 382.) has a retrospective operation only; hence it has been holden, that a marriage which would have been void by the 11th section of Lord Hardwicke's act, and had once been rendered valid by the 2nd section of the 3 Geo. 4. c. 75. cannot subsequently be rendered invalid by the marriage of either of the parties during the life of the other with a third person. R. v. St. John Delpike, 2 B. & Ad. 226.] Nor, by s. 4. any marriage, the invalidity of which has been established before the 22nd of July, 1822, upon the trial of any issue touching its validity, or touching the legitimacy of person alleged to be the descendant of the parties to such marriage; nor, by s. 5. any marriage, of which the validity or legitimacy of descendants has been brought in question, in

any

(8) This act, which received the royal assent, July 22, 1822, was to take effect from the 1st September, 1822. During the interval between those periods, viz. between the 22nd July and 1st September, 1822, the 11th section of the 26 Geo. 2. c. 33. stood repealed, and the new provisions of this act, the 3 Geo. 4. c. 75. had not come into operation; the marriage, therefore, of an infant by license, without the consent of parent or guardian, solemnized on the 30th August, 1822, was holden to be valid. R. v. Maria Wantley, Moody's Crown Cases, 163. See post. s. 16. of 4 Geo. 4. c. 76. and R. v. Birmingham, 8 B. and C. 29. there cited.

law or equity, where judgments or decrees or orders have been made before the 22nd of July, 1822, in consequence of proof having been made of the invalidity of such marriage, or the illegitimacy of such descendants. The rights and interest in property and titles of honour, which have been enjoyed upon the ground of the invalidity of any marriage, by reason that it was solemnized without such consent, shall not be affected by this act, although no sentence or judgment has been pronounced in any court against the validity of such. This statute shall not affect any act done before the 22nd of July, 1822, under the authority of any court, or in the administration of any personal estate, or the execution of any will, or performance of any trust. The remaining sections of this statute, from the 8th to the 26th, were repealed by the 4th Geo. 4. c. 17. 26th March, 1823, which was also repealed by stat. 4 Geo. 4. c. 76. except as to any act done under its provisions, and also except as to its repealing the clauses contained under any former act. See Rose v. Blakemore, R. & M. 382.

This statute, viz. 4th Geo. 4. c. 76. which passed on the 13th of July, 1823, repealed so much of Lord Hardwicke's act as was then in force, from the 1st Nov. 1823. The principal provisions are as follow:-The 2nd section relates entirely to the mode in which banns shall be published. The 3rd section empowers bishops to authorize publication of banns in chapels.

By s. 7. no minister is obliged to publish banns, unless the persons to be married shall seven days before first publication deliver to such minister notice in writing, dated on day of delivery, of their true Christian names and surnames, and of the houses of their respective abodes within parish or chapelry, and of the time during which they have dwelt therein. (10).

(10) A person, whose baptismal and surname was Abraham Langley, was married by banns by the name of George Smith, having been known in the parish where he resided and was married, by that name only, from the time of his first coming into the parish till his marriage, which was about three years; it was holden, that the marriage was valid *. So where a person had gone by an assumed name for sixteen weeks, in order more effectually to conceal himself, having deserted from the army, and then was married by his assumed name by license; the marriage was holden good, no fraud being in* R. v. Billinghurst, 3 M. & S. 250.