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officers, and surrogates are left untouchedm. 4thly, Time. Twenty-one days" must elapse after day of entry of notice, if no license; if license, seven days" before marriage can be solemnized. If three months are suffered to elapse after notice, without marriage, a new notice must be given. The old hours are to be observed, during which the marriage can be solemnized, viz. between eight and twelve in the forenoon. Fifthly, The marriage must be solemnized as the act directs; 1. with open doors; 2. between the stated hours; 3. in presence of registrar and witnesses; if at office, presence of S. R. also is required; 4. in some part of the ceremony the declaration before the witnesses in the form prescribed; lastly, there must be no lawful impediment. If these particulars be not duly observed, the marriage is made voidP; but if they are strictly attended to, the marriage is as good and cognizable in like manner as a marriage before this act, according to the rites of the church of England. In the case of a fraudulent marriage, the guilty party forfeits all property accruing from the marriage under a provision similar to that contained in the 4 Geo. 4. c. 76. s. 23. But the new law extends only to Englands, and does not extend to the marriage of any of the royal family. Quakers and Jewst may contract and solemnize marriages according to usage as before, provided both parties are Quakers or Jews, and the notice to registrar has been given and his certificate issued. As to the registers of marriages the reader should be apprized that so much of the stat. 52 G. 3. c. 146. and 4 G. 4. c. 76. as relates to the registration of marriages, has been repealed by stat. 6 & 7 W. 4. c. 86, which is to take effect on the same day as the preceding marriage act, and which is to be taken as part of it, as fully as if incorporated with it".

In cases where the marriage is to be proved by the production of the register, or an examined copy, proof must also be adduced, if required, of the identity of the parties. But the minister and subscribing witnesses are not the only competent witnesses to prove the identity. In Birt v. Barlow, Doug. 170, Buller, J. observed, that it was not necessary to produce the original register, and that it was only where that was required, that subscribing witnesses must be called; that in this case the wife's maiden name was Harriet Champneys;

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and supposing a maid servant had proved, that she always went by that name till the day of the marriage, that she went out that day, and on her return and ever since had been called Mrs. Birt, that would have been evidence of the identity. An omission in the marriage register of the signatures of the minister, parties, and witnesses, has been holden* not to affect the validity of a marriage, quoad a parish settlement, where it was clearly proved, aliunde, that a marriage had actually taken place.

The books of the Fleet are not evidence of a marriage. Per Kenyon, C. J. in Reed v. Passer, Peake's N. P. C. 231. 1 Esp. N. P. C. 213. S. C. S. P. per de Grey, C. J. in Howard v. Burtonwood, Middlesex Sittings after Trin. Term, 16 G. 3.; and previously by Lord Hardwicke, and since by Le Blanc, J., in Cooke v. Lloyd, Salop Summer Assizes, 1803, Peake's Evidence, Append. xxxvi. But in Doe dem. Passingham v. Lloyd, Salop Summer Assizes, 1794, Heath, J. admitted these books in evidence. See Lloyd v. Passingham, 16 Vesey, 59.

Proofs of adultery must in many cases be in some degree presumptive; real and direct proof of the fact is not always to be expected; therefore the question in these cases will be, whether there is evidence of such near, such approximate acts, that there must be a legal presumption of the adultery. The confession of the wife is not evidence against the defendant; but conversations between her and the defendant may be given in evidence. So letters written to her by the defendant are evidence against him; but the wife's letters to the defendant are not evidence for him. In a case, where the plaintiff and his wife were servants, and necessarily living apart in different families, Lord Kenyon, C. J. was of opinion, that letters written by the wife to her husband, before any suspicion of the adultery, might be read as evidence of the connubial affection which subsisted between the plaintiff and his wife, observing, at the same time, that, before he admitted the letters to be read, he should require strict proof when, and under what circumstances they were written, in order to shew that at this time there was not any suspicion of misconduct in the wife; and in Willis v. Bernard, 8 Bingh. 376. the letter of the wife to a third person was admitted to shew the state of the wife's feelings at the time it was written,

x R. v. St. Devereux, Burr. S. C. 506.

1 Bl. R. 367. S. C. y Biker v. Morley, M. D. London Sittings, 30 June, 1741, Lee. Ch. J. special jury. Verdict for defendant. Bull. N. P. 28. S. C.

z Edwards v. Crock, 4 Esp. N. P. C. 39. Kenyon, C. J. Trelawney v. Coleman, 1 B. and A. 90. S. P.; and 2 Stark. 191. But in this case the husband and wife were not servants.

although it contained a statement of facts, which could not with propriety be submitted as evidence to a jury; on which, however, the judge cautioned the jury, telling them, that the letter was not evidence of those facts. In Winter v. Wroot, 1 Moody & Rob. 404, Lyndhurst, C. B. permitted a witness to be asked generally, whether the wife made complaints of the manner in which her husband treated her.

In Hoare v. Allena, a witness was called by the husband to prove the representation made by the wife to him of the place to which she was going previously to her elopement, in order to remove all suspicion of connivance on the part of the husband. The Court of King's Bench were of opinion, that this evidence, being part of the res gesta, was therefore admissible.

IV. Of the Damages.

THE damages given by the jury in this action are, in general, proportioned to the degree of the injury. Circumstances of aggravation of the injury, and which may therefore operate as an inducement with the jury to give large damages, are, the plaintiff's having lived happily with his wife before her connection with the defendant, the unblemished character and antecedent virtuous behaviour of the wife, a provision having been made for the children of the marriage by settlement or otherwise, and other similar topics which the extraordinary circumstances of the individual case may furnish. Proof is frequently adduced of the defendant being a man of fortune, by calling his banker, or producing a settlement, under which he may be entitled to any estate, real or personal. But in James v. Biddington, 6 C. & P. 589, Alderson, J. is reported to have rejected evidence of this description, observing that the amount of the defendant's property was not a question in the cause.

Circumstances of extenuation, on the part of the defendant, and which may tend to the mitigation of the damages are, the plaintiff's ill usage, or unkind treatment of his wife; evidence of his intolerable ill temper, of his having turned his wife out of his house, and refused to maintain her, &c. previously to the adulterous intercourse; gross negligence or inattention of the plaintiff o his wife's conduct, with respect to the de

a Hoare v. Allen, 3 Esp. N. P. C. 276.
b Bull. N. P. 27.

e Ib.

fendant; the wanton manners of the wife, or first advances made by her to the defendant; a prior elopement of the wife and adulterous intercourse with another person, or having had a bastard before marriagef; because by bringing the action the husband puts the general behaviour of the wife in issue. So letters written by the wife to the defendant before his connection with her, soliciting a criminal intercourse, &c. may be given in evidence. But the defendant will not be permitted to prove acts of misconduct of the wife subsequent to the commission of the act complained of in the action h.

Although the damages recovered are under forty shillings, yet the plaintiff shall be entitled to full costs; this action not being within the statute 22 and 23 Car. 2. c. 9. (11).

It has been supposed, that in this action a new trial cannot be granted for excessive damagesk; but if it appear to the Court, from the amount of the damages given, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence, either of undue motives, or some gross error or misconception on the subject, the court will think it their duty to submit the question to the consideration of a second jurym.

d Per Bull. J. in Duberley v. Gunning,

4 T. R. 657.

e Per Lord Ellenborough, C. J. in Gardiner v. Jadis, March 2, 1805, London Sittings.

f Roberts v. Malston, Hereford, 1745, per Willes, C. J. Gilb. Evid. 113. Ed. 1761. Bull. N. P. 296. S. C.

g Per Lord Kenyon, C. J. Elsam v.
Fawcett, 2 Esp. N. P. C. 562.

h Per Lord Kenyon, C. J. S. C.
i Batchelor v. Bigg, 3 Wils. 319. 2
Bl. R. 364. S. C.

k See Wilford v. Berkeley, 1 Burr.
609. Duberley v. Gunning, 4 T. R.
651.

m Chambers v. Caulfield, 6 East, 256.

(11) See this statute, in the following chapter.

CHAP. III.

OF ASSAULT AND BATTERY.

I. Of the Nature of an Assault and Battery, and in what Cases an Action for Assault and Battery may be maintained.

II. Declaration.

IV. Verdict and Judgment.

III. Pleadings.

V. Costs.

I. Of the Nature of an Assault and Battery, and in what Cases an Action for an Assault and Battery may be maintained.

AN assault is an attempt, with force or violence, to do a corporal injury to another, as by holding up a fist in a menacing manner; striking at another with a cane or stick, though the party striking misses his aim; drawing a sword or bayonet; throwing a bottle or glass with intent to wound or strike; presenting a gun at a person who is within the distance to which the gun will carry; pointing a pitchfork at a person who is within reach; or by any other similar act, accompanied with such circumstances as denote at the time an intention (1), (coupled with a present ability) of using

a Finch's Law, B. 3. c. 9. 1 Hawk. P. b Genner v. Sparks, 6 Mod. 173, 4. C. c. 62. s. 1. and Salk. 79.

(1) Whether the act shall amount to an assault, must in every case be collected from the intention. Trespass for assault: Plea, son assault demesne. Replication, de injuria sud proprid. The defendant and another person were fighting, and the plaintiff came and took hold of the defendant by the collar, in order to separate the combatants, whereupon the defendant beat the plaintiff. The plaintiff's counsel offering to enter into this evidence, it was objected on the other

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