which is substituted for it by sect. 33, it is necessary to consider what the law and practice were upon this subject (d).

It was essentially necessary, in such an action, 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 if the husband had consented to, or provided means for, the adulterous intercourse of his wife with the defendant, the ground of the action was removed; for volenti non fit injuria (e). So if the husband, after marriage, transgressed those rules of conduct which decency requires and affection demands from him, and in an open, notorious and undisguised manner, carried on a criminal correspondence with other women, he could not maintain this action (f). So if a wife were suffered to live as a prostitute with the privity of the husband, and the defendant had thereby been drawn in to commit the act of which the husband complained, the action could

(d) By s. 33 it is enacted, that " husband may either in a petition for disany solution of marriage or for judicial separation, or, in a petition' limited to such object only, claim damages from any person on the ground of his having committed adultery with the wife of such petitioner, and such petition shall be served on the alleged adulterer and the wife, unless the court shall dispense with such service or direct some other service to be substituted; and the claim made by every such petition shall be heard and tried on the same principles, in the same manner, and subject to the same or like rules and regulations, as actions for criminal conversation are now tried and decided in courts of common law; and all the enactments herein contained with reference to the hearing and decision of petitions to the court shall, so far as may be necessary, be deemed applicable to the hearing and decision of petitions presented under this enactment; and the damages to be recovered on any such petition shall in all cases be ascertained by the verdict of a jury, although the respondents, or either of them, may not appear; and after the verdict has been given the court shall have the power to direct in what manner such damages shall be paid and applied, and to direct that the whole or any part thereof shall be settled for the benefit of the children (if any) of the marriage, or as a provision for the maintenance of the wife." By s. 30, "in case the court, on the evidence relating to any such petition, shall not be satisfied that the alleged adultery has been committed, or shall find that the petitioner has during the marriage been

accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery complained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then and in any of the said cases the court shall dismiss the said petition."

(e) Per De Grey, C. J., in Howard v. Burtonwood, C. B. Middx. Sitt. after Trin. T. 16 Geo. II. Agreed by the court in Duberley v. Gunning, 4 T. R. 651, and there said by Buller, J., to be settled law. See also 20 & 21 Vict c. 85, s. 30, supra, note (d).

(f) Wyndham v. Lord Wycombe, 4 Esp. N. P. C. 16; and Sturt v. Marquis of Blandford, there cited, both ruled by Kenyon, C. J. Lord Alvanley, C. J., differed in opinion with Lord Kenyon on this point: Lord 4. 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 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.

to;

not be maintained (f). But if the husband had been guilty of negligence merely, or inattention to the behaviour and conduct of his wife with the defendant, not amounting to a consent, such circumstances went in mitigation of damages only (g). In Winter v. Henn, 4 C. & P. 498, Alderson, J., in 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 his wife a general licence 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 (h).

In a case (i), 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 were of opinion that, taking the whole deed into consideration, it was evident that

(f) Per Lord Mansfield, C. J., in Smith v. Allison, Bull. N. P. 27; Hodges v. Windham, Peake, N. P. C. 39.

(g) Agreed by the court in Duberley v. Gunning, 4 T. R. 651. "If the wife is a prostitute, and the husband is not privy to it, it goes only in mitigation of damages; but if he is consenting to it, or otherwise connives at it, it takes away the ground of the action. If an illicit conversation be had, and he is not privy to it at the time, but knows of it afterwards and then receives her back, yet he may support an action, and the subsequent reconciliation goes only in mitigation of damages." Per De Grey, C. J., in Howard

v. Burtonwood. In Calcraft v. Earl of Harborough, the plaintiff obtained a verdict, damages 1007., 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, Tindal, C. J.

(h) Weedon v. Timbrell, 5 T. R. 357. (i) Chambers v. Caulfield, 6 East, 244. See also Wilton v. Webster, 7 C. & P. 198, Coleridge, J.

ADULTERY.

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; that 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 especially when they should be ill, so as to require the attention of a mother," the husband had not (as it was held 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; and 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 had carried on an adulterous intercourse with the plaintiff's wife, the plaintiff could maintain separate actions, although the cause of action had accrued during the same period.

It will have been seen, by reference to sect. 33 of the new act, that the wife is now made a party to the proceeding by petition. In the action of crim. con. she was altogether unrepresented: so much so that in a recent case, where a new trial of such an action was moved for on the ground of surprise, whilst the affidavit of the defendant was received by the court, that of the wife, stating that she was innocent of the alleged adultery, was rejected (k).

II. Of the Evidence, and herein of the Statutes relating to Marriage
Marriages Abroad
Proof of Adultery

20

22

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 the action of crim. con., in order that it might not be converted to bad purposes, by persons giving the name and character of wife to women to whom they were not married, it was held necessary, where the fact of marriage between the parties was put in issue by the pleadings (1), for the plaintiff strictly to prove it, and proof of cohabitation and reputation was insufficient (m); but "if it were proved that the defendant had seriously or solemnly recognized that he knew that the woman he had laid with was (k) Hawker v. Seale, 17 C. B. 595. (1) Kenrick v. Homer, 26 L. J., Q. B.

214.
(m) Morris v. Miller, 4 Burr. 2057; 1

Bl. R. 632, S. C.; Birt v. Barlow, Doug.
174; Catherwood v. Caslon, 13 M. & W.

261.

the plaintiff's wife, it would be evidence proper to be left to a jury without proving the marriage" (n). In cases where the marriage was to be proved by the production of the register or copy, proof must also have been adduced of the identity of the parties. 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; 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. In Sayer v. Glossop, 2 Exch. R. 409, which was an action on a bill of exchange with a plea of coverture, the marriage was proved by an examined copy of the register and by a witness who, having seen the original, swore to the handwriting of the alleged husband. This was held to be sufficient, and Parke, B., said, "I have tried perhaps more cases of bigamy than any other judge, and I do not recollect one in which the original register was produced at the trial." An omission in the parish register of the signatures of the minister, parties and witnesses has been held 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 (o).

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, Middx. Sittings after Trin. Term, 16 Geo. III.; and previously by Lord Hardwicke, and since by Le Blanc, J., in Cooke v. Lloyd, Peake's Evidence, App. xxxvi. But in Doe d. Passingham v. Lloyd, Salop Sum. Ass. 1794, Heath, J., admitted these books in evidence. See, however, Lloyd v. Passingham, 16 Ves. 59.

By a stat. 3 & 4 Vict. c. 69, intituled "An Act for enabling Courts of Justice to admit Non-parochial Registers as Evidence of Births or Baptisms, Deaths or Burials, and Marriages," certain registers are to be deposited (p) in the custody of the registrargeneral, after being certified (q) and identified (r) by the commissioners therein mentioned, and are then to be deemed to be in legal custody (s), and to be receivable in evidence in all courts of justice, subject to the provisions contained in the act (t); and by sect. 20, the registers of the Fleet and King's Bench prisons,

(n) Per Cur. Rigg v. Curgenven, 2 Wils. 399.

(0) R. v. St. Devereux, Burr. S. C. 506; 1 Bl. R. 367, S. C.

(p) Sect. 1.

(q) Sect. 2. (r) Sect. 4.

(s) Sect. 6.

(t) These provisions of 3 & 4 Vict. c. 92, are now extended by 21 Vict. c. 25, to certain other non-parochial registers certified as correct by commissioners appointed by the crown and deposited with the registrar-general.

ADULTERY.

Mayfair and Mint, are to be transferred to the custody of the registrar-general; but none of the provisions respecting the registers made receivable in evidence by virtue of this act are to extend to the registers so transferred.

It is proposed now 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 (u), 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. 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 (x). But it has recently been settled by the judgment of the House of Lords, in the The Queen v. Millis, 10 C. & F. 534, that by the common law of England a marriage between British subjects, although celebrated according to the rites of the English Church, is void unless solemnized in the presence of a minister of that Church; and in accordance with that decision it has been held, that where A. and B., both being members of the Church of England, were married at the consulate office at Beyrout, in Syria, by an American missionary, according to the rites of the Church of England, such marriage was invalid (y). On the 27th November, 1831, Mr. Beamish, a clergyman of the united Church of England and Ireland, being in holy orders, performed a ceremony of marriage between himself and a lady, a Protestant, by reading in a room in a private house the form of solemnization of matrimony as set forth in the book of common prayer. person was present at the performance of the ceremony, but it was No witness or any other observed, although not heard, by a third party from an adjoining yard, without, however, the knowledge of the parties themselves. The ceremony was followed by consummation, and there having been issue, the question was raised whether, according to the law of Ireland, which at that time was the same as that of England was before the passing of the 26 Geo. II. c. 33, the marriage was valid and the issue legitimate. The Court of Exchequer Chamber in Ireland, by a majority of six judges to four, decided in the

(u) See R. v. Inhabitants of Brampton, 10 East, 283.

(x) R. v. Fielding, 5 St. Tr. 614; Jesson