Rep. 437. Scrimshire v. Scrimshire, id. 395. Lacon v. Higgins, 3 Stark. 183."

Proof of the adultery.] "It is not necessary to prove the direct fact of adultery. In every case almost the fact is inferred from circumstances that lead to it by fair inference as a necessary conclusion. What are the circumstances that lead to such a conclusion cannot be laid down universally, because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances apparently slight and delicate in themselves, but which may have most important bearings in the particular case.-The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion." Per Sir W. Scott, Loveden v. Loveden, 2 Hagg. Consist. Rep. 2. Where the plaintiff's wife and the defendant travelled together, and the former took a house in Wales, where the defendant used to pass the day and take his meals, but slept at an inn, the Ecclesiastical Court held this cohabitation sufficient evidence of adultery, though there was no proof of other familiarities. Cadogan v. Cadogan, 2 Hagg. 4 (n); and see Chambers v. Chambers, 1 Hagg. Consist. Rep. 444. Williams v. Williams, Id. 299. Elwes v. Elwes, Id. 277. Where the statute of limitations is pleaded, the plaintiff may give evidence of acts of adultery which have taken place more than six years since, with a view to show the nature of the connexion subsisting between the parties within the six years. Duke of Norfolk's case, 12 How. St. Tr. 927. The confession of the wife is not evidence for her husband, but conversations between her and the defendant are evidence against the latter. B. N. P. 28, ante, p.

91.

Evidence in aggravation.] Conversations between the husband and wife are evidence to show their demeanour and conduct. Trelawney v. Colman, 1 B. and A. 91. So letters from the wife to the husband written before suspicion of criminal intercourse. Ante, p. 91. The judgment formed by a witness from the anxiety which the wife had expressed concerning her husband, and from her mode of speaking of him during his absence, is admissible evidence. Trelawney v. Coleman, 2 Stark. 192. The wife's declarations as to her intentions in leaving her husband may be given in evidence, as part of the res gesta, to remove a suspicion of connivance on his part. Hoare v. Allen, 3 Esp. 276, ante, p. 31. Proof of a settle

ment and provision for children is admissible as evidence in aggravation. B. N. P. 27. As to evidence of the wife's character, see ante, p. 37.

Defence.

Evidence to disprove the marriage.] If the marriage of the plaintiff be irregular and void, the defendant may give evidence to prove that fact. Thus he may show that there was no due publication of banns; for by 4 Geo. IV. c. 76, s. 22, if any persons shall knowingly and wilfully intermarry without due publication of banns, or license, such marriage shall be null and void. Under this clause it seems to be sufficient that the banns are published in the known and acknowledged, though not the real names of the parties. Thus where a man whose name was A. L. had resided for three years in the parish in which he was married, under the name of G. S., and was married by banns by such name, the marriage was held valid. R. v. Billinghurst, 3 M. and S. 250. So where the name had been assumed for sixteen weeks, on account of the party having deserted from the army. R. v. Burton-upon-Trent, Id. 537. So where a married woman upon the death of her husband assumed her maiden name, and after the lapse of several years was married by banns to a second husband in that name, with the description of widow, it was held, in the absence of fraud, that such marriage was legal. R. v. St. Faith's, Newton, 3 D. and R. 348. But where the banns have been published in the wrong names of the parties, and there is no evidence to show that they have ever been known by such names, the marriage is void. Mather v. Ney in the Consistory Court, 3 M. and S. 265; see also Stanhope v. Baldwin, 1 Addams, 93, Green v. Dalton, Id. 289. So where a wrong name is fraudulently assumed for the purposes of the marriage. Frankland v. Nicholson, in the Consistory Court, 3 M. and S. 259; see also Fellowes v. Stewart, 2 Phillim. 257," Meddowcroft v. Gregory, Id. 365, Bayard v. Morphew, Id. 321, Pougett v. Tomkyns, 3 M and S. 264.

W

By 4 Geo. IV. c. 76, s. 26, it shall not be necessary, in support of a marriage, to give any evidence of the residence of the parties, as directed in that act, nor shall any evidence be received to prove the contrary.

Evidence that the parties lived separate.] Whether proof that at the time of the adultery the husband and wife were living separate by consent furnishes a defence in this action, does not appear to be clearly settled. In Weedon v. Timbrell, 1 Esp. 16, 5 T. R. 357, S. C., where it appeared that the husband, having some suspicion of his wife's misconduct, had taken a lodging for her, for which and for her board he paid, and that at the same time when the adultery was committed, they were living in a state of separation, Lord Kenyon ruled that the action could not be maintained, and the court refused to set aside the nonsuit. So in Bartelot v.

16 Eng. Com. Law Reps. 171.

2 Eng. Eccles. Reps. 42. 2 Id. 121. " 1 Id. 250. v 1 Id. 279. w 1 Id. 273.

Hawker, Peake, 7, where the husband and wife had been separated by articles, Lord Kenyon said, that if the parties were separated by mutual consent at the time, he was of opinion that the husband could not maintain this action, for it was impossible to receive any injury by losing the society of a wife whom he had already abandoned; but on proof of an act of adultery before the separation, the jury found a verdict for the plaintiff. But in a subsequent case, where the defence was that the parties were living under articles of separation at the time, Lord Kenyon said that it was a question that he had entertained considerable doubts upon, but that he was inclined to suffer the cause to proceed, and take a note of the objection, that it might be brought before the court. Hodges v. Windham, Peake, 39. And in a still more recent case, where the husband and wife had separated under articles, and the wife was living apart from her husband, though not in pursuance of the terms of the articles, Lord Ellenborough observed 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 decision in Wheedon v. Timbrell, Chambers v. Caulfield, 6 East, 248. In the latter case it was held, that as the wife was not living apart from her husband with the consent of the trustees in the deed, she was not living apart from him with his consent, and that therefore the plaintiff's right to recover was not affected by the deed. Where the separation is not with a view of renouncing the marital character, as where the husband and wife are living as servants in different families, the action may be maintained. Edwards v. Crock, 4 Esp.

39.

Evidence of the plaintiff's misconduct in bar.] If a woman be suffered to live as a prostitute with the privity of her husband, and a man is thereby drawn into adultery with her, Lord Mansfield laid it down as clear law, that the action will not lie. Smith v. Allison, B. N. P. 27. Hodges v. Windham, Peake, 39. But unless with the husband's privity it will not go to the action, let her be ever so profligate, but only to the damages. B. N. P. 27. If the plaintiff was consenting to the adultery of his wife, he cannot recover. Howard v. Burtonwood, 1 Selw. N. P. 10. Duberley v. Gunning, 4 T. R. 656. Hoare v. Allen, Selw. N. P. 11 (n), 3 Esp. 276. Where, after marriage, the husband has openly violated those rules of conduct which decency requires and affection exacts from him; if he has openly practised his gallantries without regard to his wife, and violated the marriage bed, so as to create disgust or unhappiness in his wife, he cannot maintain this action. Per Lord Kenyon, Sturt v. Marquis of Blandford, cited 4 Esp. 17.

Ld. Alvanley said, that though he was aware that Ld. Kenyon had laid down a different doctrine, he was of opinion that the infidelity or misconduct of the husband could never be set up as a legal defence to the adultery of the wife, but that it went in mitigation of damages only. Bromley v. Wallace, 4 Esp. 237.

Evidence in mitigation of damages.] Proof of the husband's bad conduct, as that he lived in a criminal connexion with other women, is properly evidence in mitigation of damages. B. N. P. 27, Bromley v. Wallace, 4 Esp. 237. So that he had turned his wife out of the house, and refused to maintain her. B. N. P. 27. So for the same purpose the defendant may give evidence of the wanton manners of the wife, and that the first advances were made by her to him. Gardener v. Jadis, 1 Selw. N. P. 25. So that the wife has committed adultery with others, or had a bastard before marriage. Roberts v. Malston, B. N. P. 296. Though evidence of loose conduct or criminality with others, before the commission of the fact complained of, is admissible in mitigation of damages, yet acts of subsequent misconduct are not. Per Lord Kenyon, Elsam v. Faucett, 2 Esp. 562. Although in general the letters of the wife to the defendant are not evidence for him, Baker v. Morley, B. N. P. 28, yet where they had been written before the time, when the criminal facts were proved to have been committed, Lord Kenyon admitted them, the object being to show that the defendant had been solicited by the wife. Elsam v. Faucett, 2 Esp. 562.

TRESPASS FOR SEDUCTION.

In an action for seduction, the plaintiff must prove, 1. That the party seduced was, in contemplation of law, his servant; and, 2, the seduction.

Evidence of the service.] Although this action cannot be maintained without some proof of the daughter's service, or liability to service; and it is not sufficient merely to show that the plaintiff has incurred an expense in consequence of her confinement, Satterthwaite v. Duerst, 5 East, 47 (n), 4 Dougl. S. C., Postlethwaite v. Parkes, 3 Burr. 1878, Bennett v. Alcott, 2 T. R. 168, see 4 B. and C. 662; yet it is not necessary to prove an actual contract of service, or that wages have been paid, but the slightest evidence of service, such as milking cows, has been held sufficient Bennet v. Alcott, 2 T. R. 168. Even making tea has been said to be an act of service. Per Abbott, C. J., Carr v. Clarke, 2 Chitty, 261, see also Manvell v. Thompson, 2 C. and P. 303, Mann v. Barrett, 6 Esp. 32. Though, to a degree, the relation of master and servant

10 Eng. Com. Law Reps. 438. ▼ 13 Id. 328. 12 Id. 136.

must subsist, yet a very slight relation is sufficient, as it has been determined, that when the daughters of the highest and most opulent families have been seduced, the parent may maintain an action on the supposed relation of master and servant, though every one must know that such a child cannot be treated as a menial servant. Per Lord Kenyon, Fores v. Wilson, Peake, 55. So it has been ruled by Littledale, J., that the proof of any acts of service is unnecessary, and that it is sufficient that she is living with her father, forming part of his family, and liable to his control and command. Maunder v. Vann, 1 M. and M. 324, see R. v. Chillesford, 4 B. and C. 102. The action is maintainable, though the daughter was of age. Booth v. Charlton, cited 5 East, 45, Satterthwaite v. Duerst, Ibid. (n), Tullidge v. Wade, 3 Wils. 18. And where the daughter was a married woman separated from her husband, and living as a servant with her father, it was held that the latter might maintain this action. Harper v. Luffkin, 7 B. and C. 387.

It must appear that the daughter was residing with her father at the time of the seduction. Thus where she was residing in another person's family in the capacity of housekeeper, though not under any contract for wages, and though she might have left when she pleased, it was held that the father could not maintain the action, for the daughter had no animus revertendi. Dean v. Peel, 5 East, 45, Car v. Clarke, 2 Chitty, 260. But if she was merely absent on a visit at the time when she was seduced, the action lies. Johnson v. MAdam, cited 5 East, 47. Where the defendant procured the daughter and servant of the plaintiff to leave her father, under the false pretence of hiring her as his servant, and seduced her, Abbott, C. J. held the action maintainable. Speight v. Oliveira, 2 Stark. 493.

Where the action was brought by the aunt of the party seduced, with whom the latter resided, Perryn, B. held that she stood in loco parentis, and was entitled to recover, though the mother was living. Edmonson v. Machill, 2 T. R. 4, 11 East, 24. So where the plaintiff, an officer in the army, had adopted the daughter of a deceased soldier, he was held entitled to maintain this action. Irwin v. Dearman, 11 East, 23. So a master, who is not related to the party seduced, may recover damages against the defendant for debauching her. Fores v. Wilson, Peake, 55. See Hall v. Hollander, 4 B. and C. 663.

Evidence in aggravation.] In aggravation of damages the plaintiff may give evidence of the general good conduct of his family, what other children he has, &c. Bedford v. M'Koul, 3 Esp. 119. So the plaintiff may prove that the defendant was addressing his daughter as an honourable suitor; Dodd v. Norris, 3 Campb. 519, Elliott v. Nicklin, 5 Price, 641; but neither in chief nor on cross-examina

10 Eng. Com. Law Reps. 279. 14 Id. 58. 18 Id. 328. 3 Id. 445.