thing can be pleaded before the auditors contrary to what has been previously pleaded and found by verdict, because the consequence 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 auditors, 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 in arrear (12). 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 (13).

IV. Execution.

Ir 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. 2. 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.

c 3 Wils. 114.

d Bull, N. P. 128.

e Metcalf's case, 11 Rep. 40. a.

(12) 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 merchandises aforesaid, and also 2791. 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."

(13) 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.

CHAP. II.

OF ADULTERY.

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

II. Of the Venue-Declaration-Plea.

III. Of the Evidence, and herein of the Marriage Act, 26 G. 2. c. 33.

IV. Of the Damages.

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 lects, and punished 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, as Blackstone justly remarks, the ruling powers found it for their interest to put on the semblance of a very extraordinary strictness and

(1) In the year 1604, (2 James I.) a bill was brought into parlia ment "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.

purity of morals, adultery was made a capital 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 (3) 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 theaction for adultery is, for some purposes at least, to be considered as an action on the case, yet, from a late decision in the Court of Common Pleas, it must now be considered as the subject of an action of trespass. The case alluded to is, that of Woodward v. Walton, C. B. Trin. 47 Geo. 3. 2 Bos. and Pul. N. R. 476. The court there held, 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, those words being generally applicable to actions of

c Cooke v. Sayer, 6 East, 388, 9. 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.

(2) The provisions of the statute made for this purpose were these" that if any married woman should be convicted of being carnally known by any man other than her husband, (except in case of ravishment,) such offence should be adjudged felony, and every person, as well the man as the woman, offending therein, should suffer death without benefit of clergy, provided that this should not extend, 1st, to any man, who did not know at the time of such offence committed, that the woman was then married; or, 2ndly, to any woman whose husband should be beyond the seas for three years, or reputed dead; or, 3dly, to any woman whose husband should absent himself for three years in any place, so as the wife should not know her husband to be living within that time." See Scobell's Acts, Part 2, p. 121. Fo. Ed.

(3) Strictly speaking an injury of this kind will not admit of any, much less a pecuniary compensation.

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 foundation of the action is the loss of service; yet this also has been considered as an action of trespass.""

Having endeavoured to explain the nature of the action, the next object of inquiry is, under what circumstances the law permits this action to be maintained; and first, it is essentially necessary, that the husband should present himself in court, with clean hands, as has been said, 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 (4). So if the husband, after marriage, transgresses those rules of

d See Ditcham v. Bond, B. R. E. 54
G. 3. 2 Maule and Selwyn, 436. S. P.
recognizing Woodward v. Walton.
e Per de Grey, C. J. in Howard v. Bur-
touwood, C. B. Middx. Sitt. after T.

T. 16 Geo. 2. Agreed by the court in Duberley v. Gunning, 4 T.R. 651. and there said by Buller J. to be settled law.

(4) 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 before Lee, C. J. at the Middlesex sittings after Michaelmas term, 1738: Strange, solicitor-general for the plaintiff; Mr. Murray (afterwards Lord Mansfield) and other counsel, for the defendant. The case is truly stated in Buller's N. P. p. 27, as

conduct which decency requires, 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 (6).

f Wyndham v. Lord Wycombe, 4 Esp.

Blandford, there cited, both ruled N. P. C. 16. and Sturt v. Marq. of by Kenyon, C. J. (5).

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. It is observable, that 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 this case correctly with the exception of the name of the Chief Justice. Lord Kenyon then said, "that Cibber v. Sloper was tried before Lord Mansfield, (Lee was Chief Justice) who 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."

(5) It is to be observed, that although the opinion of Lord Kenyon, C. J. as delivered in Sturt v. Marq. of Blandford, coincided with the position in the text, yet the jury in that case found a verdict for the plaintiff, with 1001. damages.

(6) 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 accessary 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.

2