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is a damage without an injury. If it be not with the husband's privity, it will not go to the action, let her be ever so profligate, but only to the damages. Pratt, C. J. of C. B. declared himself of the same opinion in a like case much about the same time. (Smith 6. Allison, Sittings at Westminster, B. R. cor. Lord Mansfield, after Tr. 5 Geo. 3.) However, in the case of Cibber v. Sloper, supra, (a) it was holden that the action lay, though the privity and consent of the husband to the defendant's connection with her were clearly proved. (b)

Note, In this action it is necessary for the plaintiff to prove a marriage in fact; which may be done either by a copy of the register, or by the testimony of one who was present at the ceremony. (c) But

It is not necessary to call one of the subscribing witnesses to the ries gister to prove the identity of the persons married, for a copy of the re

for the gist of it is not the assault, some evidence be given, that the but per quod consortium amisit. Vide daughter performed some acts of Cook v. Snyer, 2 Burr. 753. Mac. service for the father: as to which, fadzen v. Oliphant, 6 East, 388. vide ante, page 18, note (e); vide

(a) Vide Hoare v. Allen, 3 Esp. etiam Dean v. Peal, 5 T. Rep. 47. N. P. C. 276. Et vide Duberley v. Iu Chambers v. Caulfield, 6 East, Gunning, 4 T. R. 655.

244, the wise, without the consent So where an action was brought of trustees, lived apart from her for crim. con. evidence of the wile's husband, but that consent had been misconduct with others before the rendered necessary by a deed which act of adultery alledged, is admis- was made with reference to a pos. sible in mitigation of damages, but sible separation; and in an action not of subsequent acts. Ëlsam ý. by the husband for crim. con. while Fawcet, 2 Esp. N. P. C. 562.

she thus lived away from him, it (b) In Weedon v. Timbrell, 5 was held by Lord Ellenborough, C.. 'T. Rep. 360, an action was brought that such action was maintainable, for crin. con. with plaintiff's wife; allowing the doctrine of Timbrel it appeared that the plaintiff and his v. Weedon, sup. in its fullest extent. wife had agreed to live separately: Vide etiam Cook v. Sayer, 2 Burr. plaintiff proved various acts of adul. 753, cited in Macfadzen v. Oliphant, tery committed by defendant after 6 East, 388. Bartelot v. Hawker, separation; but there being no di. Peake N. P.7. rect proof of any before it, he was (c) In crim. con. the marriage, in nonsuited. On a motion for new fact, was proved as to the husband : trial, Kenyon, C. J. held, (the other as to the wife, the witness said, he judges concurring), that the gist of was at the marriage in Ireland, and the action was the loss of the com- saw the wife afterwards in Ireland fort and society of plaintiff's wife, and at her husband's house, but that he not the criminal conversation. This had not seen her for some time past, was a civil action brought to recover and did not know whether she was satisfaction for a civil injury done the person mentioned in the declarato the husband. But what injury tion. It was proved that defendant can have been done to plaintiff called her Mrs. Hemmings. The who had voluntarily relinquished court held this to be good prima his wife? His lordship also held, facie evidence of a marriage. Hemthat in an action by a father 'formings. v. Smith, M. 25 Geo. 3. B. R. the loss of service of his child, no MS. Ca. action can be maintained, unless.

gister

gister is sufficient evidence of the marriage in fact between persons of the description there mentioned: and any evidence which satisfies a jury as to the identity of * the plaintiff and his wife being the persons mar- [*28 1 ried is sufficient; as if the hand-writing of the husband and wife to the, register is proved; or bell-ringers came to the parties and said they rung for the wedding, and were paid by tbem, or people dined at the wedding dinner; or other circumstances to ascertain the persons.Birt y. Bar. loz, M. 1779. i Doug. 162. (171.)(a)

Where the plaintiff proved articles between himself and his wife, purporting to be made after the marriage, of the wife's estate, and which were executed by the plaintiff and his wife, with the privity of her res lations, and her uncle was the trustee in the settlement; that she always went by the name of his wife, and was so considered by the relations, on both sides ; and likewise proved cohabitation, this was holden not to be sufficient.-Morris v. Miller, K. B. E. 7 G, 3, 4 Burr. 2057. 1 Black. 632

So where the defendant was surprised at a lodging with the plaintiff's wife, and on being asked where Major Morris's wife was, he answered “ in the next rooni;” this was holden not to be sufficient, for it is only a confession of the reputation, and that she went by the name of the defendant's wife, and not a confession of the fact of the marriage. S.C. (6)

IC

re) In this case Lord Dlansfield said, that an action for crim. con. has something of penal prosecution in it; for which reason, and because it might be turned to bad purposes by persons giving the name and character of wife to women to whom they are not married ; a marriage, in fact, must be proved. Marriages are noi always registered. There are marriages a mong particular sorts of dissenters, where the proof by a register would be impossible: and Dennison, J. in a case of that kind, admitted other proof of an actual marriage. As to the proof of identity: whatever is sufficient to satisfy e jury is good evidence. If neither the minister, nor the clerk, nor any of the subscribing witnesses, were acquainted with the married couple, none of them might be able to prove the identity; but it may be proved in a thousand other ways: suppose the bell-ringers were called, and

proved that they rang the bells, and
came immediately after the mar-
riage, and were paid by the parties :
suppose the hand-writing of the
parties was proved, or that persons
were called who were at the wedding
dinner; or suppose a maid-servant
proves that her mistress went by the
name of 1. till the day of marriage,
and that she went out on that day:
and on her return, and ever since,
went by the name of Mrs. B.; surely
that would be evidence of the iden-
tity. Per Buller, J. in S. C.

(b) It appeared however by the
evidence in this case, that the mar-
riage was, in fact, had al Day Fair
chapel, the register of which could
not be received in evidence, under
the stat. of 26 Geo. 2. c. 3. 8. 14.;
and as the minister was transported,
and the clerk dead, plaintiff failed
in his proof, and was nonsuited.

The Fleet books also were produced in evidence of a marriage,

but

It has been doubted whether the ceremony must not be performed according to the rites of the church; but as this is an action against a wrong-doer, and not a claim of right, it seems sufficient to prove the marriage according to any form of religion, as in the case of Anabaptists, Quakers, or Jews.--Woolston v. Scott, per Dennison, J. at Thetford, 1753, where plaintiff was an Anabaptist, and recovered £500.

The confession of the wife will be no evidence against the defendant; but a discourse between her and the defendant may be proved. So letters written to her by the defendant may be read as evidence against bim, but her letters to him will be no evidence for him.- Baker v. Morley, Guildhall, 1739.

As the gist of the action is the criminal conversation, and not the assault, the proper plea' under the statute of limitation is not guilty within six years.—Cook v. Sayer, M. 32 G. 2. K. B. Burr. 753.

but rejected by De Grey, C. J. in Howard v. Burtonwood, Esp. N. P. 343 ; by Lord Kenyon, in Reed v. Passer, Peake N. P. 213; and by Le Blanc, J. in Cook y. Lloyd, Peake Ev. 89. But by Heath, J. in Passingham v. Lloyd, Peake Ev. 89, they were admitted in evidence.

Where plaintiff' and defendant were servants, and lived in separate families, Lord Kenyon admitted these letters, written before the fact of adultery, as evidence of their connubial affcction; but he required very strict proof that these could be no cause of suspicion. Edwards v. Crock, 4. Esp. N. P. C. 39.

So where the husband called a witness to prove that his wife told him where she was going to previous to her elopement, the court received this evidence as part of the res gesta, to remove all suspicion of the husband's connivance. Hoare v. Allen, 3 Esp. N. P. C. 276.

So, though A. had commenced an action, and recovered damages against B. for crim. con. with bis wife, he is not thereby precluded from suing C. who had also carried on an illicit intercourse with her during the same period. Gregson v.MʻTaggart, i Camp. 415.

BOOK

BOOK II.

FOR WHAT INJURIES AFFECTING A MAN'S PERSONAL PROPERTY,

AN ACTION MAY BE BROUGHT.

INTRODUCTION. HAVING in the last book taken notice of the several injuries affecting a man's person for which an action may be brought, I shall now consider in what case an action will lie for injuries affecting his property; and they divide themselves into two sorts :

1. Such as affect his personal property.

2. Such as affect his real property.
The actions that may be brought for injuries affecting his personal
property, are,

1. Deceit.
2. Trover.
3. Detinue.
4. Replevin.
5. Rescous.
6. Trespass.
7. Case for Misbehaviour in an Office, Trust or Duty.
8. Case for consequential Damages.

CHAPTER I.

[ 30 ]

OF DECEIT.

DeceIT properly lies where one man does any thing in the name of another, by which the other is damaged and deceived; as if one without my knowledge purchase a quare impedit in my name, returnable in Banco, and after cause it to be abated, or me to be nonsuited. So if one forge a statute merchant in my name, and thereupon a capias is sued out, upon which I am taken, I may have a writ of deceit against him that forged it, and him that sued the capias. (2 Dano. Ab. 543, 2, 3). (a) But this

writ

(a) So where the civil magistrate is deceived, and such deceit is injurious to an individual, such in

dividual may sue out a writ of do
ceit. The writis"

falsò et in
deceptionem ejusdem curia." Vide

Rastall's

writ lies chiefly upon recoveries obtained by covin and deceit: and in such cases where the recovery is of land, it is brought to restore the party to the lands and profits : and in other cases, such as debt, &c. to give him damages : but what I intend to take notice of in the present chapter, are actions upon the case in the nature of a writ of deceit, which lie wherever a person has, by a false affirmation, or otherwise, imposed upon another to his damage, who has placed a reasonable confidence in him ; (a) as if a man in possession of a horse, (Sprigwell v. Allen, M. 24 Car. 1. Al. 91.) or a lottery ticket (Medina v. Stoughton, Salk. 210. i Raym. 593. S. C.) sell it to another for his own; for possession of a personal chattel is a colour of title ; and therefore it was bút a reasonable confidence, which the buyer placed in him, when he affirmed it to be his own. (b) But it is incumbent on the plaintiff in

such

Rastall's Ent. 221. It requires the sec Sprigwell v. Allen, sup. where party to answer the king as well as plaintiff failing to prove that dethe plaintiff de falsitate et deceptione fendant knew a horse (not legally prædictis. The judgment is, quod tolled in Smithfield) did belong to B. querens, ad omnia, quæ per falsitatem, was nonsuited. Vide etiam Doud. &c. amisit restituatur, et quòd de ing v. Mortimer, 2 East, 450. (n.) fendens, pro falsitute et decepttone S. P. And there is this distinction prædictis, cupiatur.

between an action on the case for (a) And indeed it is on a breach breach of an express promise, and of the warranty of one party to a one in nature of deceit on an implied contract either implied or express that warranty, that in the latter the des this action is grounded. As where ceit is the gravamen and the scienter a merchant sells cloth to another, the gist of the action, and in the knowing it to be badly fulled, this former the breach of the warranty is action lies, for there is a warranty in the gravámen, therefore where plainlaw, but there is no authority to tiff declares in tort for such breach, shew that the same rule holds if the

it is not necessary to alledge the commodity have a latent defect un- scienter, nor if alledged to prove it. known to the seller. Per Lawrence, J. Vide Selw. N. P. 16. 582. (n.) rein Parsons v, Lee, 2 East, 323. Et ferring to Williamson V. Allison, ? Vide i Rol. Ab. (Deceit) P. 90,

East, 446. And the scienter is the gist of this (6) For as to an express warranty action. Where there is no war- it is a rule, that if a person by a ranty therefore, it must be averred in false assertion has induced another the declaration that the defendant to place a confidence in him, and had sold plaintiff goods as his own, has thereby deceived and injured him, sciens they were the goods of a this action lies. Vide Crosse v. Gardstranger. Dale's Case, Cro. Eliz. 44.

ner, Carth. 90. (c.) Furnis v. Leices. See further as to the scienter in Fur- ter, Cro. Jac. 474. S. P. But where nis v. Leicester, Cro. Jac. 474. See the affirmation is merely a nude as. also Chandelor v. Lopus, post, p. 31. sertion or matter of opinion, leav

The scienter must be also proved, ing the party open to exercise his though in v. Purchase, cited

own judgment, or make his own ene 2 East, 448,"Lord Raymond thcught quiries, it is his fault if he be des it unnecessary, where there was a ceived. Selw. N. P. 46. 583. As warranty, to maintain the action, but where A. being in possession of a

term,

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