CHAPTER II.

OF ADULTERY.

I. Of the Remedy for this Injury, and in what Cases an Action may be maintained. p. 7.

II.

III.

Of the Venue-Declaration-Plea. p. 11.

Of the Evidence, and herein of the Statutes relating to Marriage. p. 12. Proof of Adultery. p. 22.

IV. Of the Damages. p. 23.

Costs. p. 24.

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 leets (a), 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 (b), adultery was made a capital crime (2). But at the restoration, when men, from an abhorrence

(a) 3 Inst. 206.

(b) 4 Bl. Com. p. 64.

(1) In the year 1604, (2 Ja. 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.

(2) The provisions of this act will be found in Scobell's Acts, part 2, p. 121, fo. ed.

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 (c) to show that the action for adultery is, for some purposes at least, to be considered as an action on the case, yet it may also be considered as the subject of an action of trespass (d). In a modern case (e), where, in the analogous action for the seduction of the plaintiff's sister and servant, the action was brought in case, and the defendant demurred generally, on the ground that the action was misconceived, and should have been trespass, and not case, the court overruled the demurrer ; Lord Abinger, C. B., observing, that the question is not, whether trespass will lie, but whether case will not lie also; in actions of crim. con., it has always been the practice to bring trespass or case indiscriminately.

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 (f), 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

(c) Cooke v. Sayer, 2 Kenyon, 371; 6 East, 388, 389; Batchelor v. Bigg, 3 Wils. 319; 2 Bl. R. 854; per Grose, J., in Weedon v. Timbrell, 5 T. R. 361; and 6 East, 391.

(d) Woodward v. Walton, 2 N. R. 476; Ditcham v. Bond, 2 M. & S. 436, S. P. recognizing Woodward v. Walton.

(e) Chamberlain v. Hazlewood, 5 M. & W. 517.

(f) 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.

(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 107. damages. The cause was tried before 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 thisthat the plaintiff and defendant lived in the same house; that their bed

the husband, after marriage, transgresses those rules of conduct which decency requires (g) and affection demands from him, and in an open, notorious, and undisguised manner, carries on a criminal correspondence with other women, he cannot maintain this action (5). So if a wife be suffered to live as a prostitute (h) with the privity of the husband, and the defendant has thereby been drawn in to

(g) Wyndham v. Lord Wycombe, 4 Esp. N. P. C. 16; and Sturt v. Marquis of Blandford, there cited, both ruled by Kenyon, C. J. (4).

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

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 bedgown, 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 Mich. Term, 41 Geo. III. 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 intercourse, 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 recognized by Lord Mansfield, C. J., in the case of Worsley v. Bissett, Middlesex sittings after Hil. 1782, and in Foley v. Lord Peterborough, B. R. E. 25 Geo. III., said arg. in Bennett v. Allcott, 2 T. R. 166. Another action was brought by Cibber against Sloper, for detaining the plaintiff's wife, which was tried on the 4th of December, 1739, and a verdict found for the plaintiff, damages 5007., Mrs. Cibber having been prevented by the detention from performing on the stage, where she used to receive a large salary.

(4) Although the opinion of Lord Kenyon, C. J., as delivered in Sturt v. Marquis of Blandford, coincided with the position in the text, yet the jury in that case found a verdict for the plaintiff, with 1007. damages.

(5) Lord Alvanley, C. J., differed in opinion with Lord Kenyon on this point: Lord A. 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 to; 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.

commit the act of which the husband complains, the action cannot be maintained (6). But if the husband has been guilty of negligence merely, or inattention to the behaviour and conduct of his wife with the defendant (i), not amounting to a consent, such circumstance will go in mitigation of damages only. 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 a general license to his wife 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 (k), 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.

In a case (1), 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 con

(i) Agreed by the court in Duberley v. Gunning, 4 T. R. 651.

(k) Weedon v. Timbrell, 5 T. R. 357.

(1) Chambers v. Caulfield, 6 East, 244. See also Wilton v. Webster, 7 C. & P. 198, Coleridge, J.

(6) "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 1001.; 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.

cluded by the preceding decision in Weedon v. Timbrell. But in the case then before the court, the court being of opinion that, taking the whole deed into consideration, it was evident that 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; and 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 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 period (m).

II. Of the Venue-Declaration-Plea.

THIS is a 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 (n).

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.

(m) Gregson v. M Taggart, 1 Campb. 415. (n) Guard v. Hodge, 10 East, 32.