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, à compensation (3) in damages for the loss of the society, comfort, and assistance of his wife, in consequence of the adultery.

With respect to the nature of this action, an opinion was hazarded in a former edition of this work, that this action was to be classed among actions on the case; and it was conceived, that this opinion was warranted by the following authorities: First, because it had been adjudged, that the plea of the statute of limitations to this action is, not guilty within six years; and this appears to have been so decided on the express ground, that this was an action on the case; the court observing, that if it were trespass and assault, the wife must have been joined. Cooke v. Sayer, B. R. M. 32 G. 2. cited by Wood in Macfadzen v. Olivant, 6 East, 388, 389. Secondly, because it had been solemnly determined, that although the damages recovered in this action may be under 40s. yet the plaintiff will be entitled to full costs. Batchelor v. Bigg, 3 Wils. 319. 2 Bl. R. 854. S. C. Thirdly, because Mr. J. Grose in Weedon v. Timbrell, 5 T. R. 361. had expressed a clear opinion, that this action was considered as an action on the case, and not of trespass, and supported that opinion by an allusion to the preceding decision

(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.

of Batchelor v. Bigg. Fourthly, because in an action for debauching the plaintiff's daughter, the form of which bears a strict resemblance to the action for adultery, it had been holden, that the plaintiff might state that the defendant made an assault on his daughter" on divers days and times," &c. whereas in trespass and assault such an allegation would be bad (6 East, 395); and Mr. J. Buller appears to have formed his opinion, that the plaintiff might so declare, on the ground, that this was an action on the case and not trespass. Parker v. Ironfield, B. R. Hil. 19 Geo. 3. cited by Lawrence J. 6 East, 391.

The preceding authorities seemed to warrant the position, that the action for adultery was to be considered as an action on the case; but a late decision in the Court of Common Pleas has considerably shaken, if not wholly overturned, a part at least of the argument on which the position in question was built. 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 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, or rather to state, the doubts which exist as to the nature of the action, the next object of inquiry is, under what circumstances the law per mits 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

c Per de Grey, C. J. in Howard v. Burtonwood, C. B. Middx. Sitt. after T. T. 16 Geo. 2. Agreed by the court

in Duberley v. Gunning, 4T. 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 101. damages. The cause was tried before Lee C. J. at the Middlesex sittings after Michaelinas 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 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. irs. 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 " 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."

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).

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 busband has been guilty of negligence merely, or inattention to the behaviour and conduct of his wife with the defendantf, 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 plaintifi and his wife had agreed to live se parately 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

d Wyndham v. Lord Wycombe, 4 Esp.

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

e Per Lord Mansfield, C. J. in Smith

v. Allison, Bull. N. P. 27. Hodges v. Windham, Peake, N P. C. 39. f Agreed by the court in Duberley v. Gunuing, 4 T. R 651.

g Weedon v. Timbrell, 5 T. R. 357.

(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.

(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, C. J. in Howard v. Burtonwood, and Buller's N. P. 27. S. P.

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, 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.

main

Where several defendants have carried on an adulterous intercourse with the plaintiff's wife, the plaintiff may 1 tain separate actions, although the cause of action has accrued during the same period'.

v. Caulfield, 6 East's Rep. i Gregson v. M'Taggart, 1 Camp. N.

P. C. 415.