of Canterbury, proper officers, and surrogates are left untouched (z). 4thly, Time.-Twenty-one days (a) must elapse after day of entry of notice, if no license; if license, seven days (a) before marriage can be solemnized. If three months (b) 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. 5thly, The marriage must be solemnized as the act directs (c); 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 void (d); but if they are strictly attended to, the marriage is as good (e) 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 (f) similar to that contained in the 4 Geo. IV. c. 76, s. 23. But the new law extends only to England (g); and does not extend to the marriage of any of the royal family. Quakers and Jews (h) 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 Geo. III. c. 146, and 4 Geo. IV. c. 76, as relates to the registration of marriages, has been repealed by stat. 6 & 7 Will. IV. c. 86 (i), which took effect on the same day as the preceding marriage act, (6 & 7 Will. IV. c. 85,) and which is to be taken as part of it, as fully as if incorporated with it (k).

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 (1). The confession of the wife is not evidence against the defendant; but conversations between her and the defendant may be given in evidence (m). 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 (n), 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 show that at this time there was not any suspicion of misconduct in the wife; and in Willis v. Bernard, 8 Bing. 376, the letter of the wife to a third person was admitted, to show the state of the wife's feelings at the time it was written, 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 M. & 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. Allen (o), 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. Costs.

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 (p), 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., 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

(0) Hoare v. Allen, 3 Esp. N. P. C. 276.

(p) Bull. N. P. 27.

ill usage or unkind treatment of his wife; evidence of his intolerable ill temper, of his having turned his wife out of his house (q), and refused to maintain her, &c. previously to the adulterous intercourse; gross negligence or inattention of the plaintiff to his wife's conduct, with respect to the defendant (r); the wanton manners of the wife, or first advances made by her to the defendant (s); a prior elopement of the wife and adulterous intercourse with another person, or having had a bastard before marriage (t); 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 (u), &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 (x).

In a case (y) (said to have been unprecedented) where the wife was dead before the trial of the action, Coleridge, J., told the jury that they must award damages for the loss of the society of the wife, &c. down to the time of the death only.

It has been supposed that in this action a new trial cannot be granted for excessive damages (2); 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 jury (a). So if the verdict be very much against the weight of evidence, the court will grant a new trial on payment of costs (b). With respect to damages, however, the court never interferes (c), unless they are very excessive, or a strong case is made out to show that the jury have taken a perverted view of the matter.

Costs. If the damages are less than forty shillings, the plaintiff is not entitled to recover costs, unless the judge, immediately after trial, certify that the trespass or grievance was wilful and malicious. See stat. 3 & 4 Vic. c. 24, s. 2, post, p. 37.

(g) Bull. N. P. 27.

(r) Per Buller, J., in Duberley v. Gunning, 4 T. R. 657.

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

(t) Roberts v. Malston, Hereford, 1745, per Willes, C. J., Gilb. Evid. 113, ed. 1761; Bull. N. P. 296, S. C.

(u) Per Lord Kenyon, C. J., Elsam v. Fawcett, 2 Esp. N. P. C. 562.

(x) Per Lord Kenyon, C. J., S. C. (y) Wilton v. Webster, M. D. 7 C. & P. 198.

(z) See Wilford v. Berkeley, 1 Burr. 609; Duberley v. Gunning, 4 T. R. 651. (a) Chambers v. Caulfield, 6 East, 256. (b) Mellin v. Taylor, 3 Bingh. N. C. 109; 3 Sc. 513.

(c) Per Tindal, C.J., Edgell v. Francis, 1 Man. & Gr. 225. N. The action was for false imprisonment.

CHAPTER III.

OF ASSAULT AND BATTERY.

I. Of the Nature of an Assault and Battery, and in what Cases an Action for Assault and Battery mag be maintained. p. 25.

II. Declaration. p. 27.

III. Pleadings. p. 29.

IV. Verdict and Judgment. p. 36.

V. Costs. p. 37.

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 (a); 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 (b); or by any other similar act, accompanied with such circumstances as denote at the time an intention (1) (coupled with a present ability) (c) of using

(a) Finch's Law, B. 3, c. 9; 1 Hawk. P. C. c. 62, s. 1.

(b) Genner v. Sparks, 6 Mod. 173, 4 ;

and Salk. 79.

(c) See Stephens v. Myers, 4 C. & P. 349. Tindal, C. J.

(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 propria. 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 side, that the plaintiff ought to have replied this matter specially; but Legge, Baron, overruled the objection, observing that the evidence was not offered by way of justification, but for the purpose of showing that there was not any assault, for it was the quo animo which constituted an assault, which was matter to be

actual violence, against the person of another. For an assault, which is considered as an inchoate violence, the law has provided a remedy by an action of trespass vi et armis, at the suit of the injured party, for the recovery of damages commensurate to the injury sustained (2).

A battery, which always includes an assault (d), is an injury inflicted on a person by beating, either with the hand or an instrument; or by throwing water (e) on a person. The form of action prescribed by law, in the case of battery, is the same as that in assault, viz. an action of trespass vi et armis. In order to maintain this action, it is immaterial whether the act of the defendant be wilful or not (3). Hence this action lies against a soldier who hurts his comrade while they are exercising, unless the defendant can show such circumstances as will make it appear to the court that the injury done to the plaintiff was inevitable (ƒ), and that the defendant was not chargeable with any negligence: the merely pleading that the defendant committed the injury casualiter et per infortunium et contra voluntatem suam is not sufficient, for no man shall be excused of a trespass, unless it may be judged utterly without his fault. The defendant was uncocking a gun (9), and the plaintiff standing to see it, it went off, and wounded him: it was holden, that the plaintiff might maintain trespass.

This action lies not only against him who commits the injury, but against him also at whose command it is done (h): hence if A. command B. to beat another person, and B. does it accordingly,

(d) Termes de la ley, Battery, Com. Dig. Battery.

(e) Pursell v. Horne, 3 Nev. & P. 564; 8 A. & E. 602.

Weaver v. Ward, Hob. 134. (g) Underwood v. Hewson, Str. 596. (h) 1 Roll. Abrid. 555 (V.), pl. 2.

left to a jury. Griffin v. Parsons, Gloucester Lent Assizes, 1754. MSS. "No words can amount to an assault, though, perhaps, they may in some cases serve to explain a doubtful action; as if a man were to lay his hand upon his sword, and say, 'If it were not assize time, he would not take such language.' These words would prevent the action from being construed an assault, because they show he had no intent to do him any corporal hurt at that time." Bull. N. P. 15.

(2) For the law relating to indictments for assault and battery, see 1st Hawk. P. C. ch. 62, s. 1, 2; 1st East's P. C. ch. 8, s. 1. The party injured may proceed by action and indictment for the same assault, and the court, in which the action is brought, will not compel the plaintiff to make his election, to pursue either one or the other; for the fine to the king, upon the criminal prosecution, and the damages to the party, in the civil action, are perfectly distinct in their natures.-Jones v. Clay, 1 Bos. & Pul. 191. But see stat. 9 Geo. IV. c. 31, post, p. 27.

(3) Neither does the degree of violence with which the act is done make any difference. Per Le Blanc, J., 3 East, 602.