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until the account is determined. If the auditors find the parties remiss and negligent, they must certify to the court that they will not account. By stat. 4 Ann. c. 16. s. 27. the auditors are empowered to administer an oath, and examine the parties touching the matters in question, and for the trouble in auditing and taking such account, shall have such allowance as the court shall judge reasonable, to be paid by the party on whose side the balance of account shall be. Special bail is not to be found until after judgment to account* (10). If the defendanty, after the judgment to account, does not personally appear in court to give bail to account, there must issue a capias ad computandum for the purpose of bringing him into court. With respect to pleading before the auditors, the following rules are to be observed: 1. In order to avoid trouble and charge to the parties, what might have been pleaded in bar to the action shall not be allowed as a discharge before the auditors. 2. If the party is once chargeable and accountable, he cannot plead any matter in bar, except a release, or plene computavit; but must plead before the auditors. The exceptions proceed on this ground, that a release, and the having fully accounted, are total extinctions of the right of action, of which the court is to judge; and even in these cases they must be pleaded specially, and cannot be given in evidence on ne unques receivor. 3. Nothing can be pleaded before the auditors, contrary to what has been previously pleaded and found by verdict, because the consequences would be, either two contradictory verdicts, which would perplex the court, or two similar verdicts, which would be nugatory. 4. If the defendant plead, before the auditorsd, any matter in discharge, which is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the court, who thereupon, will award a venire facias to try it; and if on the trial the plaintiff make default, he shall be nonsuited; but, notwithstanding the nonsuit, he may bring a scire facias upon the first judgment.
2. The final judgment is, that the plaintiff do recover against the defendant so much as he, the defendant, is found x Reeves v. Gibson, 1 Lev. 300. b i Brownl. 24, 25. y Chester v Hunt, C. B M. 13 G. 2. z Taylor v. Page, Cro. Car. 116,3 Wils. d Bull. N. P. 128.
e Metcalf's Case, 11 Rep. 40 a. Wils. 113, 114.
c 3 Wils. 114.
113. S. P.
(10) It was said, by all the prothonotaries in the Court of Common Pleas, that the defendant upon the first writ should not be held to special bail, yet, in special cases, by the discretion of the court, he shall find bail. Noy, 28.
in arrear (11). A writ of error lies upon this last judgment only: but, although it be found erroneous, and reversed, the first judgment shall stand in force; for the two judgments are distinct and perfect (12).
Execution. It is not unworthy of remark, that this action is the first of a civil nature in which process of execution against the person was given. This process is given by stat. Westm. 3. 13 Edw. 1. c. 11.; but, under this act, the guardian in socage cannot be committed to prison, for he is in loco parentis, and the words of the statute are de servientibus balivis, &c.
(11) The form of this judgment for the plaintiff upon demurrer to plea before the auditors, in Godfrey v. Saunders, 3 Wils. 94. was as follows: “Therefore it is considered, that the plaintiff do recover against the defendant the aforesaid £12,000, (the sum laid in the declaration) for the value of the goods and merchandizes aforesaid, and also 2781. 7s. 9d. for his damages, as well by reason of the interpleading aforesaid, as for his costs and charges by the plaintiff in and about his suit in that behalf expended, to the said plaintiff by the court here adjudged with his assent; and that the said defendant be in mercy,” &c.
(12) The reader who is desirous of further information concerning the nature of this action, is referred to the record and proceedings in the case of Godfrey v. Saunders, 3 Wils. 73.
I. Of the Remedy for this Injury, and in what Cases an
Action may be maintained.
I. Of the Remedy for this Injury, and in what Cases an
Action may be maintained.
In ancient times adultery was inquirable in tourns and leetsa, and punishable by fine and imprisonment; but at the present day this offence belongs to the ecclesiastical courts, and the temporal courts do not take any cognizance of it as a public wrong. Several attempts, indeed, have been made by the legislature to bring this offence within the pale of criminal jurisdiction, but they have, for the most part, been wholly ineffectual (1). During the time of the commonwealth, in the year 1650, when the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and purity of morals”, adultery was made a capital
a 3 Inst, 206.
b 4 Bl. Com. p. 64.
(1) In the year 1604, (2 James I.) a bill was brought into parliament" for the better repressing the detestable crime of adultery.” This bill was committed, but when the report was made by the committee, the Earl of Hertford said, that they found the bill rather concerned some particular persons than the public good, whereupon the bill was dropped. See 5th vol. of Parl. Hist. p. 88. Another attempt was made in the year 1800, but failed; the bill passed the Lords, but was negatived in the Commons. Parl. Hist. vol. 35, p. 225 to 325.
crime (2). But at the restoration, when men, from an abhorrence of the hypocrisy of the late times, fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour; adultery, therefore, at the present day, as far as respects the temporal courts, is considered merely as a civil injury; and the only remedy, which the law affords, is an action, whereby the husband may recover, against the adulterer, a compensation in damages for the loss of the society, comfort, and assistance of his wife, in consequence of the adultery.
Although there are not wanting authorities to shew that the action for adultery is, for some purposes at least, to be considered as an action on the case, yet it must now be considered as the subject of an action of trespass. In Woodward v. Walton, 2 B. and P. N. R. 476, where it was holden, that an action for debauching the plaintiff's daughter per quod servitium amisit is an action of trespass, and that consequently a count for that purpose might be joined with a count for breaking and entering the plaintiff's house, Sir J. Mansfield, delivering the opinion of the court, introduced the following remarks: “ A little confusion has arisen in some of the cases from the insertion of the words vi et armis in declarations in actions on the case, these words being generally applicable to actions of trespass only; and I certainly do not recollect to have seen them used in actions upon the case. In'actions like the present, as far as my recollection goes, the form of the declaration has always been in trespass vi et armis et contra pacem. I cannot distinguish between this action and an action for criminal conversation. If that be the subject of trespass, this must be so too. In the action for criminal conversation, the violence is not the ground of the action; both in that case and in this, if the injury were committed with violence, it would amount to a rape. I do not see, therefore, any good reason why either of them should be the subject of an action of trespass. But it seems, from the cases which we have looked into, that the action for criminal conversation has been considered for years as the subject of an action of trespass. In actions by a master for an assault upon his servant, per quod servitium amisit, there is no trespass against the plaintiff; the sole
Cooke v. Sayer, 2 Kenyon, 371. 6
J. in Weedon v. Timbrell, 5 T. R. 361. and 6 East, 391.
(2) The provisions of this act will be found in Scobell's Acts, part 2, p. 121. Fo. ed.
foundation of the action is the loss of service; yet this also has been considered as an action of trespass d.”
To maintain this action, it is essentially necessary, that the husband should present himself in court, as has been said, with clean hands, that is, without any imputation of having courted his own dishonour, or having been instrumental to his own disgrace; for it is now settled, that if the husband has consented to, or provided means for the adulterous intercourse of his wife with the defendant, the ground of the action is removed, and the defendant will be entitled to a verdict; for volenti non fit injuria (3). So if the husband, after marriage,
d See Ditcham v. Bond, 2 M. & S.
436, S. P, recognizing Woodward v.
Walton. e Per de Grey, C. J. in Howard v.
Burtonwood, C. B. Middx. Sitt. after
T. T. 16 Geo. 2. Agreed by the court in Duberley v. Gunning, 4 T. K. 651. and there said by Buller, J. to be settled law.
(3) From Lord Kenyon's account of Cibber v. Sloper, in 4 T. R. 655, it would appear as if the verdict in that case had been given in conformity with this position. But, in fact, the jury in Cibber v. Sloper found a verdict for the plaintiff with £10 damages. The cause was tried beford Lee, C. J. at the Middlesex sittings after Michaelmas term, 5th of December 1738. The case is truly stated in Buller's N. P. p. 27, as follows: “In Cibber v. Sloper, it was holden, that the action lay, though the privity and consent of the husband to the defendant's connexion with the wife were clearly proved.” The clear proof here alluded to was this—that the plaintiff and defendant lived in the same house; that their bed-chambers were adjoining to each other; and that there was a communication between them by a door. Mrs. Cibber used to undress herself in her husband's room, and leave her clothes there, and putting on a bed-gown, retired to Mr. Sloper's room with one of the pillows taken from her husband's bed, Mr. Cibber shutting the door after her, and wishing her good night. It was proved also, that Mr. Cibber sometimes called Mr. Sloper and Mrs. Cibber up to breakfast. Lord Kenyon, at a time subsequent to that above-mentioned, viz, on the first trial of Hoare v. Allen, Middlesex sittings after M. T. 41 G. 3. MSS. stated "that in Cibber v. Sloper, the chief justice thought the conduct of the husband so gross, that it was a case for small damages, but that it did not go to the ground of the action; since that time, however, it had been thought, that where the husband furnished means for the criminal in. tercourse, the action would not lie." It has been repeatedly determined, that if the act complained of be with the husband's privity, the action will not lie. This doctrine was recognised by Lord Mansfield, C. J. in the case of Worsley v. Bissett, Middlesex sittings after Hilary, 1782, and in Foley v. Ld. Peterborough, B. R. E. 25 G. 3." said arg. in Bennett v. Allcott, 2 T. R. 166. Another action was brought by Cibber against Sloper, for detaining the plaintiff's wife,