Limitations, to prevent his recovering any damages for the profits taken previous to that time. CHAP. XI. Ch. X. Mesne Profits. OF THE EVIDENCE IN ACTIONS BY AND AGAINST SECTION I. Actions by and against Husband and Wife. N cases where the husband and wife are IN Action by Husband joint plaintiffs, the marriage, if put in and Wife. issue, should be proved by an examined copy of the register, or by some person present at the time; but when they are defendants, proof that they cohabited together as husband and wife is conclusive upon them; for a man who Norwood permits a woman to pass in the world as his son, Andr. wife, will not afterwards be permitted to say vide ante, that she is not so. But when only the general issue is pleaded, whether in assumpsit, case, or trespass, there is no necessity to prove the marriage. If, therefore, husband and wife sue for a debt due to the wife before the marriage, or for an assault committed upon her, and the defendant plead v. Steven 237. 20. against Part II. the general issue; the plaintiffs will not be Action obliged to give further evidence of their relaHusband tionship to each other than is sufficient to shew and Wife. that the woman who sues as the wife of A. is Dickenson the person with whom the contract was made, or on whom the assault was committed; and the Stra. 480. defendant will not, on this issue, be at liberty to dispute the marriage. & Wife v. Davies, I Crim.Con. SECTION II. Actions by Husband alone. WHEN the husband sues alone to recover damages, in consequence of the defendant's misconduct towards his wife, he must strictly prove the marriage, although only the general issue be pleaded; for the plea of not guilty, in Morris v. this case, puts the fact of the marriage in issue; as, without that fact, the defendant has committed no injury to the plaintiff individually. Miller, 4 Burr. 2057. Birt v. Barlow, Dougl. 162. In actions for criminal conversation, therefore, the plaintiff must prove the actual marriage and identity of himself and his wife. No reputation, nor even an admission by the defendant that he had committed adultery with the plaintiff's wife, will be sufficient in this case. But when the marriage is proved by the register, the parties may be identified by any other evidence which satisfies the Jury; as the proof Ch.XI. f.2. Action for Crim. Con. v. Scott, proof of their hand-writings subscribed to the register, or the circumstance of their afterwards giving a wedding-dinner, and presiding at it as the persons married; and this, although the Woolston subscribing witnesses present at the marriage Bul. N. P. are living. In case of sectaries, who marry vide contrary to the usual ceremonies of the church, Ganer v. a marriage according to their rites will be suf- Lanesbro', ficient. 28. Lady Peake's Cas. 17. v. V. Cooke, 39 4 Esp.Cas The ground of the action being the loss of the wife's affection and society, all evidence which tends to shew that they lived affectionately together, is proper to be adduced on the part of the plaintiff. Even letters from the Edwards wife to her husband may be admissible under some circumstances; as where, during his absence, she writes letters of affection to him, and it is clearly shewn that such letters were written before the defendant became acquainted with her; but unless the latter fact be clearly made out, the letters will not be admitted. If Vide the plaintiff has lost any expectations of fortune in consequence of the seduction of his bank, Bul. wife, it will also be proper evidence on his part, as will, in many cases, the rank and circumstances of the defendant. a Winsmore v. Green N. P. 78. The defendant will be permitted to shew in vide ante, mitigation of damages, that the wife was 7. woman of loose conduct, and one whose society was but of little value. So if the husband has ill-treated his wife, or connected himself after his marriage with other women, this also is proper Crim. Con. Wynd ham v. Lord Wy. comb, 4 Esp. Cas. 16, & Street v. Marquis of Bland. cited. 3 Smith v. Bul. N. P. Part II proper matter to be given in evidence by the Action for defendant, and generally has considerable effect in reducing the damages. Indeed, the circumstance of the defendant's connection after marriage with other women, was holden by Lord Kenyon in two cases,' to furnish a defence to the action; but Lord Alcanley, in a subsequent case, held, that it only went in ford, there mitigation of damages. So the defendant may prove that the plaintiff consented to his wife's * Bromley v.Wallace, adultery with the defendant or with other ibid. 237. men; and, if this be satisfactorily proved, Allison, the action will fail altogether, for a husband 27.Hodges who has so prostituted his wife, will not be perv. Wynd- mitted to sue as a plaintiff in a Court of JusPeake's tice. It should here be observed, that great caution is necessary in the introduction of evidence of this description, for unless most clearly and satisfactorily made out, it will always much aggravate instead of diminishing the damages. In one case, where the husband and wife were parted by articles of separation, it was determined, by the Court of King's Bench, that this circumstance alone was a bar to any action for Chambers adultery, subsequently committed; but, in a very late case, the propriety of this decision, was much doubted. ham, Cas. 39. Weeden v. 5 T. Rep. 357. v. Caul field, 6 Fast. 244 SECTION III. Actions by a Parent or Master. any Ch.IX.f.3, A PARENT may maintain an Action for assault upon, or injury done to his child, whilst such child remains part of his family. The strict ground of the action is the loss of the service which the child might have performed for the parent; and though it has been held, that it is not necessary to shew that in fact the child was accustomed to perform any mienial office, or other service in the family; but that it is sufficient if he or she were living in the parent's house, and under his protection;' yet it must be proved that the child did so reside. Therefore, a parent whose daughter has a permanent and fixed residence in another family, cannot maintain any action against the person who seduces her, though she be under age. In this case, however, the person with whom she resides may maintain the action. When the daughter resides with her parent, though she be above twenty-one years of age, he may maintain the action, and so he may also if her general residence be at his house, and she is seduced while on a visit at the house of another person with his consent." Actions by Parent or Master. + Booth v. Charlton, cor. Wil son, J. cited 5 East. 47. ibid. To support the action, the girl herself may MAdam, be a witness, and prove any facts or circum- Vide ante, stances 166, pl. 11. |