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admissible evidence to show that the husband and wife lived in a state of connubial affection previous to the adultery; but the time when the letters were written must be shown.(i) If to rebut the presumption that a wife left her husband's house from his cruel treatment of her, letters written by her to her husband in affectionate terms, are offered in evidence, it must be proved at what time they were written, or they are not admissible in evidence; and the dates of them are not sufficient proof of the times at which they were written.(k) Letters written by the wife to her husband are not receivable in evidence in an action for criminal conversation, if written at a time when at least an attempt at adultery had been made by the defendant; but a draft, in the defendant's handwriting, of a letter written by the wife, in answer to a letter to the wise, is receivable in evidence, as well as the letter to the wife.(1) In an action for criminal conversation, where the adultery was committed on board a ship during a voyage, a witness may be asked on the part of the plaintiff, whether the wife did not keep a journal, and whether she stated for what purpose she kept it.(m)

New Trial.]— It was formerly supposed ihai in this action a new trial would not be granted for excessive damages ;(n) but Lord Ellenborough, C. J., said, that " if it appeared to them froin the amount of the damages given, as compared with the facts of the case laid before the ( *393 ; jury, that the jury*must have acted under the influence either

of undue motives, or some gross error or misconception on the subject, the court would think it their duty to submit the question to the consideration of a second jury.”(0)

A jury having found a verdict for the defendant in an action for criminal conversation, the court granted a new trial on the ground that the verdict was much against the weight of evidence, notwithstanding there was some evidence for the defendant.(p) The court will not reduce the damages in an action for criminal conversation, unless a very strong case be made out.(9)

Costs.]-Although the damages recovered are under forty shillings, yet the plaintiff will be entitled to full costs,(r) this action not being within the statute 22 & 33 Car. 2, c. 9. The stat. 22 & 23 Car. 2, c. 9, is repealed so far as it relates to costs in personal actions, by 3 & 4 Vict. c. 24, s. 1. The second section of the latter act enacts, that costs shall not be recovered in any action of trespuss, or of trespass on the case, where the damages recovered are less than forty shillings, unless upon the judge's certificate. In actions for criminal conversation, the plaintiff

' may sue either in trespass for the direct injury, or in case for the consequential damage. (u)

Evidence of Marriage.]—In actions for criminal conversation, proof must be given of a marriage in fact; the presumption of a marriage arising from evidence of cohabitation, general reputation, and reception by their friends, is not alone sufficient. The plaintiff must prove

(i) Edwards v. Crock, 4 Esp. 39. Upon the new trial the plaintiff had a verdict

(k) Houliston v. Smith, 2 C. & P. 24; 3 with 10001. damages. Bing. 127; 10 Moore, 482.

(9) Wyatt v. Rochfort, 2 Jurist, 13. (1) Wilion v. Webster, 7 C. & P. 198. (r) Batchelor v. Bigg, 3 Wils. 319; 2 Bl. (m) Jones v. Thompson, 6 C. & P. 415. R. 364; see Coke v. Sayer, 2 Wils. 85. (r) Wilford v. Berkeley, 1 Burr. 609. (u) Chamberlain v. Hazelwood, 5 Mees. (o) Chambers v. Caulfield, 6 East, 256. & W. 515 ; 7 Dowl. P. C. 816. () Mellin v. Taylor, 3 Bing. N. S. 109.

the marriage ceremony to have been performed either by the testimony of some witness who was present at the marriage, or by the production of the register, or of ari examined copy thereof. But if the register be lost, and the parson and clerk are dead, it seems that the fact may be proved by other strong evidence, as that of a person present at the wedding dinner.(s) The identity of the parties frequently does not appear either to the minister who performed the ceremony, or to the attesting witnesses; therefore the identity, so as to connect the marriage in fact with the person in question in the action, may be proved by other persons or circumstances. (?). Where an actual marriage has been proved by a copy of the register, the minister, clerk, or subscribing witnesses, are not the only competent witnesses to prove the identity of the persons married.(u) Although the defendani's general admission of the marriage is insufficient,(x) *there seems to be no doubt but a distinct

[ *394 ] and solemo recognition of the inarriage made by the defendant is evidence as against him of that faci.(y)

Proof of the Fuct of Adultery.] – The evidence of this fact which is usually circumstantial, must be sufficient to satisfy the jury that the adulterous intercourse has actually taken place. The proofs usually adduced are the elopement of the parties; their passing as man and wife at the inn, of the season, frequency and privacy of their meetings, and of all other circumstances attending their intercourse, and indicating the nature of it.(z)

Prisoner in Custody for Dumages in Action of Crim. Con.)---By stat. 1 & 2 Vict. c. 110, s. 78, a prisoner, imprisoned for damages recovered in an action for criminal conversation, is liable to be detained for any period not exceeding two years. But a prisoner in execution for damages under 201. in such an action, is entitled to his discharge at the end of a twelvemonth, under 48 Geo. 3, c. 123.(a) The stai. 1 & 2 Vict. c. 110, s. 41, does not operate to prevent a prisoner from being discharged out of custody under 48 Geo. 3, c. 123, s. 1, but applies only to cases of supersedeas at common law.(b).

In cases where an insolvent is opposed, on account of damages recovered by the plaintiff in an action for criminal conversation with the wife of the plaintiff, the opposition to the discharge of the insolvent is made by the production of the records, or of examined copies of the judgments, and in general the court will not allow the merits of the case to be gone into. The finding of the jury determines the character and extent of the injury, and the court, in forming its judg. ment on the length of time for which the insolvent shall continue in custody, at the suit of the complaining creditor, will be regulated by the amount of damages.

Where judgment, in an action for criminal conversation, *was allowed to go by default, and the damages

[ *395 ] assessed, upon a writ of inquiry, at 7001., and the insolvent taken in

(8) Morris v. Miller, 1 Bl. R. 632.

(z) See Stark. on Ev, 440. As to evidence (t) Hemmings v. Smith, 4 Doug. 33. of adultery, see post, p. 405-410. (u) Birt v. Barlow, 1 Dougl. 171.

(a) Goodfellow v. Robings, 3 Bing. N. S. (a) Morris v. Miller, 4 Burr, 2057. 1. See Winter v. Elliott, 1 Ad. & Ell. 24;

(y) See Rigg v. Curgenvern, 2 Wils. 399; 3 Nev. & M. 315. 2 Stark. Ev. 251 ; 2 Phill. Ev. 202.

(6) Chew v. Lye, 5 Mees. & Wels. 388.

her part.

execution, the court refused to hear evidence on the part of the insolvent, affecting the merits of the case, the finding of the jury being conclusive. But if the opposing creditor, in the examination of the insolvent, enter upon the merits of the case, the insolvent will be entiiled to state upon his part all circumstances of mitigation.(c)

Adultery of either Party equally an offence in Law.]—The offence of adultery, although distinguishable in its consequences with reference to society, depending upon the sex of the offender, and so practically considered to be by the laws of many countries, is, according to the canon law, which governs the ecclesiastical courts of England, equally an offence, whether committed by the husband or by the wife, either of whom has an equal right of proceeding for a remedy.

Montesquieu,(d) Pothier,(e) and Dr. Taylor, (f) all insist that the cases of husband and wife ought to be distinguished, and that the violation of the marriage vow on the part of the wife is the most mischievous, and the prosecution ought to be confined to the offence on

Lord Eldon said, "It was to be considered that adultery committed by a wife, and adultery committed by her husband, were widely different in their consequences. The adultery of the wife might impose a spurious issue upon the husband, which he might be called upon to dedicate a part of his fortune to educate and provide for; whereas no such injustice could result to his wife from the adultery of a married man; and in many cases, not only a reconciliation might be brought about, but it became the especial duty of a wife to forgive her husband's misconduct, from motives of tenderness and concern to the interests of his innocent children."(g)

What Persons may institute suits for Adultery.]-All persons, whether Christians or Jews, who stand in the relation of husband and wife, in any way that the law allows, as by a foreign marriage, or by a [ *396]

domestic marriage, not contrary to *law, have a claim to

relief on the violation of any matrimonial duty.(h) In a suit for divorce by reason of cruelty and adultery brought by the wife against the husband, where the wife's grandfather was appointed her guardian ad litem on her mother's renunciation, which was not shown to be by her husband's consent, and he prayed to be dismissed on the ground of the incompetency of the guardian to institute proceedings, Lord Stowell would not enter into the question, whether the husband could dispute the effect of the above appointment, since it was enough if a third person could not take advantage of such an objection; for, said his lordship, the court finds a guardian apparently appointed with sufficient regularity, and unless the appointment is shown by presumptive proof to have been invalid, the court will presume the person properly qualified to receive it.(i) His lordship had no doubt of the competency of the person instituting the suit.

(c) Cooke's Insolvent Debtors' Pr. 221223, 2d ed.

(d) L'Esprit des Loix.
(e) Traité du Contrat de Marriage, No.
6) Elements of Civil Law, 254.

(g) Parl. Hist. vol. XXXV. p. 1433. (h) D'Aguilar v. D'Aguilar, I Hagg. Eccl. R. 773, suppl.

(i) Barham v. Barham, 1 Hagg. Cons. R. 5, 6.

516.

The court ordered the father to appear as curator ad litem of his son, a minor, who was cited to answer to his wife in a suit of divorce, by reason of cruelty and adultery.(k) The father having refused the office, was appointed against his will, and sentence of excommunication was passed against him on motion to absolve it ; Lord Eldon

could not see the principle upon which, with regard to a son foris familiated, the father could be compelled to be guardian ad litem ; and an action was afterwards brought for unlawfully excommunicating the father.(1)

The committee of a lunatic may institute proceedings in the ecclesiastical court, without obtaining the sanction of the lord chancellor, against the wife of the lunatic for adultery. In a further proceeding in the case last cited, Lord Stowell said, “ that he was not aware of any case which had occurred precisely similar; it must therefore be decided, not on express authority, but on principle, or rules of analogy drawn from other authorities, which are clear and undisputed. The question *resolves itself into two points; first, whether a

[ *397 ] lunatic is put out of the protection of the law; and, secondly, if he is not, whether there is any other mode in which redress can be obtained. On the first, there can be no doubt : and it never can be asserted that the wives of lunatics should be universally released from the duties of their marriage vow. It would be an imputation on the law of this country to suppose that it had not provided some remedy against such a mischief. Then in what way is this protection to be afforded ? It must be in the same way as in other cases, by the committee. The lunatic cannot personally institute the suit, and therefore he must by his ordinary guardian. It is true, as has been observed, that in complicated matters, the committee ordinarily applies to the lord chancellor for authority to sue, but the learned judge did not know that it would be advisable to promote a suit before ihe lord chancellor, preparatory to proceedings of this nature. The ecclesiastical court has no authority over the committee, to require that he should make an application to it. It is bound to receive his plea when brought as matter of right. On these grounds, and upon principle, the powers of the committee must be upheld, to protect the lunatic from the greatest of all possible injuries.(m)

The right to sue for a divorce, on the ground of adultery, is matter purely of private right to the parties, the exercise of which is not enjoined, but merely permitted.(n) In a cause of divorce where the alleged marriage is deemed to be valid, it seems probable that the court may permit third parties, who have estates expectant inter alia upon the issue of such marriage being illegitimate, and who consequently are interested in the question of its validity, to be cited, “ to see proceedings” in the cause, so far as relates to the marriage.(o)

Absence of Consummation.]—The absence of consummation of the marriage is not a bar to a divorce where it appeared that the woman

(k) Beauraine v. Beauraine, 1 Hagg. 170, 171. Cons. R. 493. See Oughton, tit. 20.

(n) Ferg. R. 96, 97; L'Esprit des Loix, (1) Boraine's case, 16 Ves. 346; Boraine lib. 26, ch. 3. 5. Sir W. Scoth, 3 Campb. 388.

(0) Montague v. Montague, 2 Addams's (m) Parnell v. Pernell, 2 Hagg. Cons. R. R. 372.

would not allow consummation, and immediately eloped with the adulterer.(p) [ *398 ]

It is no bar or objection to a suit that the adultery

was *commitied not in this country but in a foreign country, the law either in England or in Scotland makes no distinction in respect of the place of the commission of the offence.(9)

Mode of Proceeding. 1-A citation or decree issues at the suit of the party complaining, calling upon the defendant to appear and show cause why the plaintiff should not be divorced from bed, board and mutual cohabitation, by reason of cruelty or adultery, as the case may be. The service of the process being effected, and an appearance being given, a libel is brought in, and on its admission by the judge, and the averments being denied by the defendant, witnesses are examined and publication of their evidence, and if there be no allegation excepting to them or any of their testimony, the judge proceeds to hear the cause and give sentence. During the proceedings, the defendant can give in a responsive allegation recriminatory, and presuming both parties be proved to have been guilty of adultery, the judge will dismiss the suit.

The libel in this case, pleads the courtship and marriage of the parties, their cohabiting and passing as man and wife, the birth of children, (if any.) the various acts of adultery, when, where, and with whom committed, or if cruelty, specifying the same, and when and where; and also shows the jurisdiction of the court, and concludes by praying the judge to pronounce the party to be divorced from bed, board, and mutual cohabitation.

In cases where proceedings have been previously had at common law, and a judgment obtained against an adulterer, that fact is pleaded, and a certified copy of the judgment is annexed.(r)

Adultery must be alleged in Libel.]— The libel must plead the con. clusion of adultery, because unless it is pleaded, non constat that it may not be an action for mere solicitation of chastity. But if the party does aver it, and he proves only proximate acts, he proves unquestionably the whole of his averment in the libel. It is the duty of ihe court to draw such inference as the proximate acts proved by witnesses unavoidably lead to.(s) The libel charging adultery ought

to set forth some *certain and definite time, viz. the year [ *399 ]

and month wherein the crime of adultery was said to be committed, for without such specification of time the libel is not valid in law, and the court will not proceed in the cause even though the party accused should not oppose the proceeding (1) Where the par. ties are living separate the commencement of the acquaintance with the alleged paramour, and of the suspicions of the persons under whose care the wife was, should be set forth circumstantially. Where the wife, engaged in an improper connection with the paramour, was obliged to retire, the whole transaction may be pleaded. Where a letter is pleaded to be in the possession of the adverse party, the contents may be set forth at length, leaving the other party if she pleases

(p) Patrick v. Patrick, 3 Phill. R. 496.

(9) Warrender v. Warrender, 2 Clark. & Finn. 562

(r) 2 Chitty, Pr. L. 489, 490.
(8) 1 Hagg. Cons. R. 278.
(1) Aylitte Parer. 50.

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