So if the wife be suffered to live as a prostitute with the privity of the husband, and the defendant has thereby been drawn in to commit the act of which the husband complains, the action cannot be maintained (7). But if the husband has been guilty of negligence merely, or inattention to the behaviour and conduct of his wife with the defendanth, not amounting to a consent, such circumstance will go in mitigation of damages only.

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.

In a recent case, 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 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,

g Per Lord Mansfield, C. J. in Smith i Weedon v. Timbrell, 5 T. R. 357. v. Allison, Bull. N. P. 27. Hodges k Chambers v. Caulfield, 6 East's Rep. v. Windham, Peake, N. P. C. 39.

h Agreed by the court in Duberley v.

Gunning, 4 T. R. 651.

244.

(7) "If the wife is a prostitute, and the husband is not privy to it, it goes only in mitigation of damages." Per de Grey, Ĉ. J. in Howard v. Burtonwood, and Buller's N. P. 27. S. P.

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'.

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."

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.

1 Gregson v. M'Taggart, 1 Camp. N. m Guard v. Hodge, 10 East, 32.

P. C. 415.

The general issue in this action is, not guilty.

The statute of limitations (8) may be pleaded in bar of this action; but the gist of the action being the injury sustained by the husband in consequence of the adultery, the proper plea under that statute is, not guilty within six years".

In a late case where the plaintiff complained "of a plea of trespass, that the defendant, with force and arms, assaulted and seduced the plaintiff's wife, per quod consortium amisit, &c. contra pacem, &c." and the defendant pleaded not guilty within six years; on gencral demurrer, a question arose, whether the action was trespass or case. Cooke v. Sayer was cited. Lord Ellenborough, C. J. said, it might be material to consider that point, if the question were, whether the limitation of six or four years only applied to this case: but the defendant having taken the longer period, and pleaded not guilty within six years, that of course must include not guilty within four years, and the plea not having been specially demurred to, was therefore good in either way of considering it; he added further, that he did not know what his opinion would have been if the point had then first arisen; but it having been considered in Cooke v. Sayer, as an action on the case, he should be inclined so to consider it. Lawrence, J. cited the case of Parker v. Ironfield, in which Buller, J. had considered an action of a similar nature for the seduction of a daughter, per quod servitium amisit, as an action on the case. Le Blanc, J. did not give any opinion as to this point; but observed, that the action before the court, be it either case or trespass, was within the statute of limitations; therefore, in either way of considering it, the plea was a good bar [not being specially demurred to.]

n Cooke v. Sayer, 6 East's Rep. 388. 2 Burr. 753. Bull. N. P. 28.

o Macfadzen v. Olivant, 6 East's Rep.

387. But seeWoodward v. Walton, ante, p. 9, and Ditcham v. Bond, 2 Maule and Selwyn, 436.

(8) By stat. 21 Jac. 1. c. 16. s. 3. all actions on the case (other than for slander) must be commenced and sued within six years next after the cause of such action; and actions of trespass, of assault, battery, wounding, and imprisonment, within four years. It appears, from the language of the court in Cooke v. Sayer, 6 East's R. 388. that they considered the action for adultery as falling within the former description of actions, and consequently that the limitation of time was six years. But see ante, p. 9.

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

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 this action, in order that it may not be converted to bad purposes, by persons giving the name and character of wife to women to whom they are not married, it has been holden to be indispensably necessary for the plaintiff to prove the marriage ceremony having been performed, either by the testimony of some person who was present at the marriage, or by the production of the register, or of an examined copy thereof.

Such strictness being required as to the proof of marriage in this action, it will be necessary 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, 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. In order to constitute a valid marriage, before the marriage act, it appears to have been wholly immaterial whether the ceremony was performed by a protestant or a Roman catholic priest, in a private lodging or a public chapel. In the case of the King v. Fielding, 5 St. Tr. 614. 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; in like manner as it was considered by Lord Holt in Jesson v. Collins, Salk. 487. and 6 Mod. 155.

p Morris v. Miller, 4 Burr. 2057. 1 Bl. R.632. S. C. and Bull, N. P. 27. and per Lord Mansfield, C. J. in Birt v. Barlow, Doug. 174. S. P.

q See R. v. Inhabitants of Brampton,

10 East, 288.

See further on this subject R. v. Brampton, post. n. (17). It appears doubtful, whether, at the common law, it was necessary that the ceremony should have been performed by a person in holy orders; (see the argument in R. v. Luffington, 1 Burr. S. C. 232. and some remarks on this point, I Bl. Com. 439.) certainly the ecclesiastical law required it, and if a husband demanded a right in the ecclesiastical court, which was only due to him by the ecclesiastical law, it was necessary for him to prove in that court, that he had been married by a person in holy orders. Haydon v. Gould, Salk. 119. Having endeavoured to explain the rules of law which prevailed, prior to the marriage act, it becomes necessary to set forth the provisions of that important statute, in order that the reader may obtain an accurate knowledge of the alterations, which have been made in the law on this subject.

From the preamble of this statute' (sometimes termed Lord Hardwicke's Act, but more frequently the marriage act) it appears to have been made for the purpose of preventing the mischiefs and inconveniences, which had arisen from clandestine marriages. The provisions are as follow:

First, all banns shall be published in the parish church', or in a public chapel in which banns have been usually published (9), belonging to the parish or chapelry wherein the

(9) Upon these words question arose, in the year 1781, whether this statute was to be construed to mean such chapels, wherein banns were usually published at the time when the marriage in question took place, or such chapels only as existed at the time of passing the act. The Court of King's Bench were of opinion, that the legislature clearly meant chapels existing at the time of the act; and, consequently, that a marriage, celebrated in a chapel erected since the statute 26 Geo. 2. c. 33. was void, although banns had been frequently published there, and marriages de facto celebrated there previously to the marriage in question. R. v. Inhabitants of Northfield, Doug. 658. As soon as the determination of the court in this case was known, Lord Beauchamp introduced a bill into parliament, which passed into a law, for making all marriages, which had been celebrated in any parish church, or public chapel, erected since stat. 26 Geo. 2. c. 33. and consecrated, valid in law, and to exempt the clergymen, who had celebrated such marriages, from the penalties of that statute. Vide 21 Geo. 3. c. 53. The opera tion of the stat. 21 Geo. 3. c. 53. not being prospective, a similar provision was made by stat. 44 Geo. 3. c. 77. in respect of marriages solemnized before the 25th of March, 1805, in any church, or pub