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1827.

HARPUR

v.

LUFFKIN.

person liable for the acts, and bound to protect the interests of his wife. The result, besides, will be manifestly unjust; for as the defendant is clearly liable to the husband in an action for criminal conversation, the effect of holding this action maintainable, will be to impose upon a man two several fines, payable to two several parties, for one and the same offence. It is submitted, that to do this will be going further than the courts have ever yet gone, and that the point ought at least to undergo discussion, before so important a decision is arrived at.

Lord Tenterden, C. J.--I am of opinion that this action is maintainable. It is a very common circumstance in this country, for married women to earn a subsistence apart from their husbands, by hiring themselves as domestic servants in various capacities. I am not aware that their ability to do so has ever been questioned, and it might be productive of great inconvenience if it were; for in the humbler walks of life, it may often be necessary for the husband and wife to seek their maintenance in separate services. Where a married woman enters into a contract of hiring and service apart from her husband, she nevertheless continues subject to his control, and the contract may be defeasible by him, by his, at any moment, chusing to renew the exercise of his marital rights. That may be the case quoad the husband; but it by no means follows that the rule would extend to third persons, especially wrongdoers, and that they should be allowed to say that such a contract is void. Here the wife was performing the duties and filling the character of a domestic servant. It is said that she received no wages. In money certainly she did not; but wages do not necessarily consist in money payments : and as she and her children were maintained by her father, I think she did receive such a compensation for her services as may, under the circumstances of this case, be fairly considered as wages. I agree that the contract between the wife and her father, would not have been binding as against the husband, if he

1827.

HARPUR

v.

LUFFKIN.

had thought proper to repudiate it by resuming his marital
rights; but I think it was binding as against a stranger
and a wrongdoer, and that it does not lie in the mouth of
this defendant, who is a stranger and a wrongdoer, to set
up the invalidity of such a contract as a defence to an
action like the present. Upon this short ground, I am of
opinion that the verdict was right, and that we ought not
to grant the rule now prayed for.
The other Judges concurred.

Rule refused.

NOWELL V, ROAKE, and others. In trespass

TRESPASS. The declaration stated that defendants, on for entry; expulsion, and

the 11th July, 1811, with force and arms, broke and entered mesne profits; into one undivided moiety of two water corn-mills, &c., the defendant, situate, &c., in the parish of Godalming, in the county of A., plaintiff's Surrey, and then and there ejected, expelled, &c., the plaintiff (nominal) lessee, ima from his possession, use, occupation, and enjoyment therepleaded de

of, and kept and continued him so ejected, expelled, &c., fendant for the same tres- until and upon 29th September, 1826, and during all that passes in C.P. time there took, had, and received, to the use of them, and had judgment against the said defendants, all the issues and protits of the said him of nil ca undivided moiety of the said tenements, being of great Replication, yearly value, to wit, &c., whereby the plaintiff, during all that error was brought in K. the time aforesaid, not only lost and was deprived of the B., where it

issues and profits of the said undivided moiety, but was was awarded that judgment forced and obliged to lay out and expend, and did necesversed and that sarily lay out and expend, divers large sums of money, A. should re- amounting, &c., in and about the recovery of the said uncover his term divided moiety. Pleas ; first, not guilty ; secondly, not

. Rejoinder, guilty within six years; thirdly, actio non; because, they stating, as inducement, that the writ of error was returnable before judgment was given in C. P., absque hoc, that after the giving of the judgment, below, the record was brought into K. B. by virtue of writ of error. Held: that it was sufficient in support of the issue taken upon this traverse, to prove, by the return to the writ of error, that the transcript was brought into this Court after the taxation of costs in C. P.

In this action the plaintiff may recover the costs of the reversal of a judgment in ejectment for the defendant, as between attorney and client.

1827.

NOWELL

ROAKE.

.

say, that heretofore, to wit, in Trinity term, in the 57th year of the reign of his late majesty, king George the 3rd, in the court of his said late majesty, before the Right Honourable Sir Vicary Gibbs, Knight, and his companions, then his majesty's Justices of the Bench, at Westminster, in the county of Middlesex, the said plaintiff impleaded the said defendants and one Elizabeth Roake, since deceased, in a certain plea of trespass and ejectment of farm, upon certain supposed demises made by the said plaintiff and one William Atkinson to John Denn, for the recovery of certain supposed terms then to come, of and in the very same identical one undivided moiety, of and in the same identical two water corn mills, &c., in the declaration in this suit mentioned, and for the very same identical trespasses in the said declaration in this suit mentioned; and such proceedings were thereupon had in the said Court of our said lord the king of the Bench at Westminster, aforesaid, in that plea, that afterwards, to wit, in Trinity term, in the 6th year of the reign of our lord the now king, upon all and singular the premises being seen, and by the said justices there fully understood ; it appeared to the said justices there, that said defendants and said E. R., since deceased, were not, nor were any or either of them guilty of the trespasses and ejectment laid to their charge, or any part thereof in manner and form complained against them; and it was therefore considered in and by the said Court that the said John Denn should take nothing by his said writ, but be in mercy for his false complaint against the said defendants and the said E. R.; and that said defendants und said E. R. should go thereof without day. And it was further considered in and by the said Court, that they, the said defendants and the said E. R., should recover against the said John Denn 1761. 5s. for their costs and charges, by them laid out about their defence, in that behalf, by the said Court of our said lord the king of the Bench adjudged to them the said defendants and the said E. R., with their assent, according to the form of the statute in such case made and provided ; whereof the said John Denn was

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convicted (a), as by the record and proceedings thereof still remaining in the said Court of our said lord the now king of the Bench, at Westminster, will more fully and at large appear, which said judgment still remains in full force and effect, not reversed, satisfied, or made void. And this, &c., verification by the record and prayer of judgment. The fourth plea differed from the third, in omitting the words in italics (6). Replication, joining issue on the first, and taking issue on the second ; and as to the third plea precludi non—because, protesting that the said last-mentioned plea and the matters therein contained are wholly insufficient in law; protesting also, that the said plaintiff did not implead the said defendants and the said E. R. in the said plea of trespass and ejectment of farm, in the said third plea mentioned, for the very same identical trespass and ejectment, as in the declaration in this suit mentioned, in manner and form as the said defendants have above in their said third plea in that behalf alleged: for replication in this behalf the said plaintiff saith, that after the giving of the said judgment in the said third plea mentioned, and before the exhibiting of the bill aforesaid, to wit, on the 13th day of June, in Trinity term, in the sixth year of (a) This appears

1827.

NOWELL

V. ROAKE.

to be an extra- negative A.'s right; supposing the ordinary plea. It assumes that A., judgment, whether for or against a plaintiff in trespass quare clau- B., were not wholly immaterial or sum fregit, may be barred by a irrelevant, as being res inter alios judgment against B., a party claiming to be entitled to recover da- (b) The fourth plea, by omitting mages in respect of the same tres- to aver the identity of the trespass, as lessee of A; whereas, if passes, seems to be still less releA. is entitled to recover in respect vant than the third plea. of an injury done to his possession The omission of the eat inde sine of his own moiety, it is evident, die, appears to be immaterial. that no other person could have As to the omission of the averbeen entitled to sue in respect of ment, “ that the judgment remains possession of that moiety during in force," see Bell v. Bolton, 1 the same period. Besides which, Lutw. 450; 1 Wms. Saund. 330. the possession of A. is admitted by 0.(5); Com. Dig. Pleader, 2 W the plea. The judgment against 12, where Lutw. 600 (Denton v. B., therefore, is perfectly consistent Evans), is cited, in the report of with A.'s right of action ; whereas which case, however, nothing apa judgment in favour of B. would pears upon this point.

acta.

1827.

NOWELL

ROAKE.

the reign of our said lord the now king, the record and
proceedings in the said third plea mentioned, were brought
into the Court of our lord the now king, before the king
himself at Westminster aforesaid, by virtue of a certain
writ of our said lord the king, for correcting errors therein.
And such proceedings were thereupon had in the said
Court of our said lord the king, before the king himself
at Westminster aforesaid, that afterwards and before the
exhibiting of the bill aforesaid, to wit, in Trinity term,
in the seventh year of the reign of our said lord the king,
the said John Denn having assigned errors in the record
and proceedings aforesaid, and the said defendants having
appeared and joined in error thereupon, it was then and
there considered, amongst other things, in and by the said
Court of our said lord the king, before the king himself
at Westminster aforesaid, that the judgment aforesaid, for
the errors aforesaid, and other errors in the record and
proceedings aforesaid, should be reversed, annulled, and
altogether held for nothing, and that the said John
Denn should recover against said defendants his term then
to come, of and in the said undivided moiety of the said
tenements and premises, with the appurtenances in said
declaration in this suit mentioned (a). As by the record and
proceedings thereof still remaining in the said Court of
our said Lord the king, before the king himself at West-
minster aforesaid, more fully appears; which last-men-
tioned judgment of reversal still remains in full force and
effect, not in any wise reversed or made void. And this,
&c., (verification by the record and prayer of judgment
and damages. Similar replication to fourth plea. Rejoinder
to replication to third plea, actio non, because they say
that the said supposed writ of error, in the said third re-
plication mentioned, was issued and returnable in the

(a) As the replication to the third rather tend to shew a subsisting
plea admits the identity of the tres- judgment for the same cause of ac-
passes, if there were any privity tion, and might, perhaps, be con-
between the plaintiff in this action sidered as giving the defendants
and John Denn, the judgment of re- a somewhat better case than they
versal and recovery in K, B. would had made out for themselves.

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