Hood v. State,

an unmarried woman is the crime of fornication in both, and adultery of the man within the meaning of the law respecting divorce; but not a felonious adultery in either, or the crime of adultery at common law or by statute." In his later editions the definition is given as follows: "Violation of the marriage bed; the unfaithfulness of any married person to the marriage bed; the voluntary sexual intercourse of a married person with one of the opposite sex. It may be committed between two married persons, or between two persons, only one of whom ismarried." Worcester's definition is as follows: "Criminal intercourse between a married person and one of the opposite sex, whether married or single." Johnson's definition is, "act of violating the bed of a married person." To the same effect as Webster's present definition are the definitions of the law dictionaries of Burrill, Bouvier, and Brown. In Wharton's Criminal Law (vol. 2, §§ 2643, 2651), it is said that "by the common law of Christendom adultery is sexual intercourse between man and woman, one of whom is lawfully married to a third person." This definition is supported by State v. Hinton, 6 Ala. (N. S.) 864, where it is also held that the indictment need not allege the marriage of either party, that fact being implied in the word "adultery." In Cook v. The State, 11 Ga. 54, it was held that intercourse of a married man with his unmarried daughter was incestuous adultery. In 'Montana v. Whitcomb, 1 Mont. 359; 25 Am. Rep. 740, it is held that on the trial of a person for fornication, it is essential to prove affirmatively that he was unmarried at the time of the alleged offense. The court say: "Unlawful sexual intercourse and open and unlawful living together of a married man and a married woman, or where either is married, and thus have intercourse or live together, is adultery; and the same state of facts existing between unmarried persons, man and woman, is fornication." In Respublica v. Roberts, 2 Dall. 124, it was held that sexual intercourse of an unmarried man with a married woman was fornication, and not adultery. In Commonwealth v. Lafferty, 6 Gratt, 672, it is held that illicit intercourse between an unmarried man and a married woman is fornication in the man.

Although State v. Pearce, 2 Blackf. 318, cited in the principal case, holds that criminal intercourse with a married woman is adultery and not fornication, yet it does not hold that criminal intercourse of a married man with a single woman would not also be adultery. Although The State v. Wallace, 9 N. H. 515, cited in the principal case, holds that intercourse by an unmarried man with a married woman is always held to be adultery, yet it also says: "Whether the intercourse of a married man with an unmarried female can be held to be adultery in either of the parties, within the statute for the punishment of adultery, does not seem to be settled in this State. On the part of the man it would be clearly within some of the definitions of that crime, and perhaps it has been generally so regarded; but upon this it is not necessary to express an opinion."

Agreeing with the principal case we find only State v. Weatherby, 43 Me. 261, where it is said that at common law, "adultery is the carnal connection of a man with another's wife; the man may be either married or single, but the woman must be married." But by statute in that State both are liable to punishment as adulterers if either be married, which is also the case in Massachusetts. Commonwealth v. Reardon, & Cush. 79. The matter is also regulated by statute in Pennsylvania. In New York, by statute divorces are granted for adultery of any husband or wife."

The conclusion is that the weight of authority and usage is decidedly against the prin cipal case on this point.

VOL. XXVI.— 5

Koerner v. Oberly.

KOERNER V. OBERLY.

(56 Ind. 284.)

Civil Damage Act. Damages for an act punishable criminally.

In an action by a wife against one who has sold intoxicating liquors to her husband, to recover damages for consequent injury to her means of support, her anxiety, mortification, sorrow, and loss of her husband's society, cannot form an item of damage.

In a civil action for damages for an act, also punishable as a criminal offense, held, that exemplary damages were not recoverable by reason of the constitutional provision that no person shall be put twice in jeopardy for the same offense, and that a statute authorizing such damages was void.

A

CTION for damages. The opinion states the facts.

J. N. Scott, for appellant.

A. G. Porter, W. P. Fishback and G. T. Porter, for appellee.

WORDEN, J. Jenny Oberly was the wife of Martin Oberly, and this action was brought by her against the appellant, to recover damages from the defendant for selling liquor to her husband, who, as was alleged, was in the habit of becoming intoxicated, thereby causing his intoxication, whereby the plaintiff was injured in her means of support. The action was brought against John Stumph, also, but he filed an answer which was held good on demurrer, and the plaintiff declining to reply, Stumph had final judgment on the demurrer. The cause proceeded against Koerner, who filed an answer of general denial; and the cause was tried by a jury, resulting in a verdict and judgment for the plaintiff for four hundred dollars. Motion for a new trial overruled, and exception. jority of the court below, at General Term, affirmed the judgment rendered at Special Term. The proper error is assigned here. The defendant, at the proper time, asked, and the court refused, a charge, otherwise correct so far as we can see, embodying the following proposition, viz.: "The plaintiff's anxiety of mind, her mortification and sorrow, and the loss of her husband's society, you have nothing to do with here, as they cannot enter into the measure of damages in this action."

A ma

Koerner v. Oberly.

The action was based upon the 12th section of the act of February 27, 1873, on the subject of intoxicating liquors. Acts 1873, p. 151. That section gives a wife, who "shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person," a right of action against the person furnishing the liquor, which, in whole, or in part, caused the intoxication. The action will not lie under the statute, unless the plaintiff was injured in person or property, or means of support, because the statute does not give the right of action for any other injury. The only injury complained of in this case related to the plaintiff's means of support. There was no allegation of any injury to her person or property. Under the allegations of the complaint, it is clear that the plaintiff could not recover damages for "anxiety of mind," "mortification and sorrow," or "loss of her husband's society," because those things were entirely foreign to the case made by the complaint. We need not determine, therefore, whether the matters. mentioned in the charge asked could have been considered in estimating the damages, if there had been proper allegations of injury to the plaintiff's person. We are of opinion that the charge asked should have been given.

The defendant also asked, and the court refused, the following charge: "Compensatory damages are given by way of compensation for the injury actually sustained. Exemplary damages are such as are added thereto by way of punishment to defendant, and warning to others. In this action, if the jury believe from the evidence that the plaintiff is entitled to compensation, for the injury complained of, and also that the plaintiff's husband was, at the times the sales were made, in the habit of getting intoxicated, or that the sales were made after nine o'clock on any evening, or on any Sunday, they cannot go farther than to compensate her for the injury actually sustained; and are not authorized to assess against defendant exemplary damages-his punishment in that case being left to the criminal court.' The charge asked was applicable to the case made by the evidence as well as that stated in the complaint, for it was alleged in both paragraphs of the complaint that the plaintiff's husband was in the habit of getting intoxicated. It was a penal offense, under the law, to sell intoxicating liquor to a person who was in the habit of getting intoxicated, or to sell it after nine o'clock at night, or on Sunday. Sections 6 and 10 of the

Koerner v. Oberly.

act above cited. Hence the question is fairly presented, whether in a civil action under the statute, to recover damages resulting from the sale of intoxicating liquors, the sale being made under such circumstances as make it a penal offense, exemplary damages can be allowed. If they can, a man may be punished twice for the same offense : Once under the proper form of a criminal prosecution, and again under the form of a civil action; and in the latter action the pecuniary punishment meted out may be much greater than the penalty prescribed for the offense. The 12th section of the statute above cited authorizes "exemplary damages." In the case of Taber v. Hutson, 5 Ind. 322-325, it was said by this court, "But there is a class of offenses, the commission of which, in addition to the civil remedy allowed the injured party, subjects the offender to a State prosecution. To this class the case under consideration belongs; and if the principle of the instruction be correct, Taber may be twice punished for the same assault and battery. This would not accord with the spirit of our institutions. The Constitution declares, that no person shall be twice put in jeopardy for the same offense'; and though that provision may not relate to the remedies secured by civil proceedings, still it serves to illustrate a fundamental principle inculcated by every well-regulated system of government, viz., that each violation of the law should be certainly followed by one appropriate punishment and no more.” See, also, Johnson v. Vuthrick, 7 Ind. 137; Struble v. Nodwift, 11 id. 64; Butler v. Mercer, 14 id. 479; Nossaman v. Rickert, 18 id. 350; Humphries v. Johnson, 20 id. 190; Meyer v. Bohlfing, 44 id. 238.

We are of opinion that the provision of the statute allowing exemplary damages, as applied to cases like the present, violates the fundamental principle embodied in the Bill of Rights, that no person shall be put in jeopardy twice for the same offense; and that, as applied to such cases, it is inoperative and void. The charge asked, in our opinion, ought to have been given. The jury must have allowed large exemplary damages, for it seems to us that fifty or seventy-five dollars would have covered all the real damages sustained by the plaintiff.

The judgment below, at General Term, is reversed, with costs, and the cause remanded with instructions to the court, at General Term, to reverse the judgment rendered at Special Term, and for further proceedings. Judgment reversed.

A purchaser at a sheriff's sale buys at his own risk; there is no warranty, express or implied, in any such sale. So where the real estate of one is by mistake mortgaged by another, and is sold by the sheriff under a decree of foreclosure, an innocent purchaser cannot, in an action against the sheriff and the judgment creditor, set aside the sale and recover the purchasemoney paid by him. (See note, p. 38.)

A

CTION to set aside a sheriff's sale and recover purchase-money paid. The complaint alleged that the defendants other than Gillaspy recovered judgment in foreclosure a against Martin Snepp, upon which execution issued to Gillaspy, as sheriff, who advertised a certain lot thereunder; that the plaintiff attended the sale, and was informed by the sheriff that the property was a house and lot belonging to Suepp, worth at least $1,000, and relying on this, the plaintiff bid it in at $200, and paid the same; that the property never belonged to Snepp, but by mistake of all parties a wrong description had been given in the foreclosure proceedings; and prayed to have the sale set aside, and the purchase-money repaid. The defendants demurred, and had judgment, and the plaintiff appealed.

T. W. Woollen, for appellant.

N.B. Berryman, for appellees.

HAWK, J. [After stating the facts.] In this court, the only alleged error, assigned by the appellant, is, that the court below erred in sustaining the appellees' demurrers to his complaint. The appellant says, that "he labored under a mistake" in his purchase of the lot, described in his complaint, at sheriff's sale; and he claims that he ought to be relieved from his mistake, and have his purchase-money returned to him.

The purchaser at a sheriff's sale buys at his own risk; there is no warranty, express or implied, in any such sale.

In the case of Brunner v. Brennan, 49 Ind. 98, WORDEN, J.,