I Selw. Abr. 7. Brownl. Rep. 24. A "release," and "fully accounted," are usual pleas in bar And if the party is once chargeable and accountable, Willoughby v. Small, he cannot plead in bar, except in the case of a "release,” or "fully accounted;" because a release, and having fully accounted, are total extinctions of the right of action, which the court is to judge of; and, even in these two cases, they must be pleaded specially, and cannot be given in evidence on the general issue. Sce Stor. Plead. 72. So also may surviving partner plead in bar, that he was not bailiff, but that his partner was sole bailiff. So also may defendant plead to part of the time, "that Ibid. in notis. cit. he was bailiff," and to the residue "that he was not," or that, for the residue, he fully accounted. 3 Wils. 105. 2 Harr. 302. Southcot v. Rider, Sir T. Raym. 57. z Roll. Abr. 683 (F) pl. 1. I Selw. 4. 1 Selw. 5. cit. Harrington v. Deane, When the plaintiff charges the defendant as receiver from such a time to such a time, the defendant must answer the whole time precisely. If the defendant plead that he was never receiver, he cannot give in evidence a bailment to deliver to another person, and that he has delivered accordingly; for though this special matter prove, that he is not accountable, yet as, upon the delivery, he was accountable conditionally, (viz. if he did not deliver over,) the evidence does not support the plea. In account against the defendant, as receiver by the hands of A, it is sufficient for the plaintiff to prove, that A directed the defendant to borrow of another to pay the plaintiff; that the defendant borrowed accordingly; and that A gave bond to the lender. The statute of limitations is a good plea in bar to this Mass. Stat. Feb. 13, action. It is enacted, that all actions of account, other than 1787, sect. 1, Taylor v. Page, 1 Selw. Abr. 7. such accounts as concern the trade of merchandize between merchant and merchant, their factors or servants, shall be commenced and sued within six years next after the cause of such actions or suits, and not after. It is a rule of pleading in account, that a matter, which may and ought to be pleaded in bar, cannot afterwards be pleaded before the auditors; the reason is, to avoid trouble and charge to the parties; nor can any thing be pleaded before them, contrary to that which has been pleaded be fore in bar, and which has been found by the verdict of a jury. I Selw. Abr. 7. cit. 3 Bull. N. P. 128. If defendant plead before the auditors any matter in discharge, which is denied by the plaintiff, so that the parties are at issue, the auditors must certify the record to the 1 Selw. 7. court, who thereupon will award a venire facias to try it ; and if, on the trial, the plaintiff make default, he shall be nonsuited; but notwithstanding the nonsuit, he may bring a scire facias upon the first judgment. III. Of the judgment. In this action, if the plaintiff succeeds, there are two judgments; the first is, "that defendant do account before auditors appointed by the court ;" and when such account is finished, then the second judgment is, "that he do pay the plaintiff so much as he is found in arrear." 3 Bl. Com. 163. Cas. Temp. Hardw. I Selw. 5. It is essential, that the first judgment should be entered; for where the defendant pleaded, that he had fully account- Hughes v. Burgess, ed, and issue being joined thereon, the jury found for the 377. plaintiff, and assessed damages and costs, and judgment was entered accordingly, and execution taken out; the court, on motion, set aside the judgment, and execution, observing that the judgment was wrong; for it ought to have been only a judgment to account. And they compared the irregularity, in this case, to the irregularity of signing final judgment before interlocutory judgment. A writ of error lies upon the last judgment only; although it be found erroneous, and reversed, the judgment shall stand in force; for the two judgments are distinct and perfect. but Metcalf's Case, first 1 Rep. 40. I Selw. 7. By statute it is enacted, that, upon a judgment rendered in any court of common pleas, that the defendant shall Mass. Stat. Feb. 17, account, it shall be in the power of the party, against whom same 1786, act 2, sec. 1. Appeal lies from the fore the appointment of auditors. But if there be no ap such judgment shall hereafter be given, to appeal there- first judgment,-befrom, if such party shall think proper, before the court proceed to the appointment of auditors; and, in case no appeal shall be made from the first judgment that the Pal from the first defendant shall account, an appeal from the final judgment, ment shall not entitle after the cause has been before auditors, shall not entitle the issue of "bailiff the original defendant to try the issue of bailiff or not bai- the appellate court. judgment, an appeal from the final judg the defendant to try or not bailiff," before liff, before the supreme judicial court; but the first judg ment, that the defendant shall account, shall remain in full If defendant does not force, and he shall account accordingly. And in case the prosecute his appeal from the first judg defendant shall not enter and prosecute his appeal from the firmed on complaint. first judgment, the same, on complaint, may be affirmed; ment, it may be af and auditors thereupon may be appointed in the same manner they would have been in the court of common pleas, had no appeal been made from the first judgment. The statute further provides, that when any person, Mass. Stat. Feb. 17, against whom judgment shall be given that he shall account, shall unreasonably refuse or neglect to appear at the Proceedings, in case time and place assigned by the auditors, or, after appear €786, ac 2, sec.2. the defendant neg lects to appear before ing, shall refuse or neglect to render an account, the audi auditors, after the first judgment ren- tors may certify such refusal or neglect to the court, from dered against him. which their appointment issued; and the same court may thereupon cause damages to be assessed by a jury, and enter up judgment for the damages, so assessed, with reasonable costs, and award execution therefor. 1 TITLE VII. ADULTERY. ADULTERY is the crime of incontinence between persons, one or both of whom are married. This offence is therefore distinguishable into two species-1. Single adultery; and, 2. Double adultery. If one only of the offenders be married, it then comes under the first name; but if both be married, it then comes under the last name. 1st. Of adultery, considered as a criminal offence; and its punishment by statute. 2d. The ground of the action of adultery. 3d. Of the pleadings in such action. 4th. Of the evidence in such action. 5th. Of the damages. 6th. Of the costs. I. Of adultery, considered as a criminal offence; and its punishment by statute. Cun; Dict. tit. Adult. Ibid. In England, the temporal courts take no notice of this offence, otherwise than as a civil injury. In a criminal 4 Bl. Com. 65. view, adultery is there considered as affecting religion, rather than society; and, for that reason, is left to the coercion of the spiritual tribunal. The elegant author of the Commentaries complains of the great tenderness and lenity with which this, and other offences of the same class, are treated in his country, by the canon law, upon which the ecclesiastical magistrate proceeds. And this extreme mildness he ascribes to the constrained celibacy of its first compilers. But, in this state, this offence is considered injurious, not only to religion, and the happiness and honour of individuals, but also to society, and is therefore punished as such. Ibid. 1785, sect. 1. Punishment of adultery by statute. By statute is is enacted, that if any man or woman shall Mass. Stat. Feb. 17, commit adultery, and be thereof convicted, every person so convicted shall be set upon the gallows, with a rope about his or her neck, and the other end of it cast over the gallows, for the space of one hour; be publicly whipped, not exceeding thirty-nine stripes; be imprisoned or fined, and bound to the good behaviour; all, or any of these punishments, according to the aggravation of the offence. I Esp. Dig. 430. 4 T. R. 651. II. The ground of the action of adultery. The ground of this action is the injury done to the husband, by alienating the affections of his wife, destroying the comforts arising from her company, and that of her children, and imposing on him a spurious issue. If it can be proved, that the husband consented to, or Duberly v Gunning, provided means for, the adulterous intercourse of his wife, with the defendant, the ground of the action is removed, and the defendant will be entitled to a verdict; for volenti non fit injuria. 1 Selw. 10. Wyndham v. Wy 16. So if the husband after marriage, transgresses all those combe, 4 Esp. N.P.C. rules of conduct, which decency requires, and affection demands from him, and in an open, notorious, and undisguised manner, carries on a criminal correspondence with other women, he cannot maintain this action.* 1 Selw. 11. Bull. N. P. 27. 1 Selw. II. Duberly v. Gunning, 4 T. R. 651. I Selw. II. 5 T. R. 357. Weedon v. Timbrell, 5 T. R. 357. 1 Selw. 11. So if the wife be suffered to live as a prostitute, with the privity of the husband, and the defendant has thereby been drawn in to commit the act, of which the husband complains, the action cannot be maintained. But if the husband has not proceeded thus far, yet if he has been guilty of negligence or inattention to the behaviour and conduct of his wife with the defendant, not amounting to a consent; such circumstance, though it will not bar the action, will go in mitigation of damages. In general, no action for crim. con. can be brought, for any act of adultery, after a separation between husband and wife. As where, in an action for adultery with the plaintiff's wife, it appeared, that the plaintiff and his wife had agreed * See the case of Bromley v. Wallace, 4 Esp.Rep. 237, where it is laid down, by lord Alvanley, that such conduct goes only to the damages, and not to the action. |