to live separately; the plaintiff proved several acts of adultery, committed by the defendant, after the separation of the plaintiff and his wife, but there was not any direct proof of adultery before the separation. Lord Kenyon, Ch. J., being of opinion, that the gist of the action was the loss of the comfort and society of the wife, which was alleged in the declaration in the usual manner, but was not supported by the evidence, nonsuited the plaintiff. On a motion for a new trial, the court concurred in opinion with the chief justice. Chambers v. Caul 244. But, in a recent case, where the husband and wife had entered into a deed of separation, with trustees, and the field, 6 East's Rep. wife was living separate from her husband, though not in pursuance of the terms of the deed, at the time of the adulterous intercourse; it was decided, that this action would lie; for this was not such a separation as the busband consented to by the deed, and therefore the husband had not given up all claim to the comfort, society, and assistance of his wife. III. Of the pleadings, in such action. The declaration in this case states the offence, by making 1 Esp. Dig. 434 an assault on the wife, &c. The general issue in this action is, not guilty. Mass. Stat. Feb. 13, The statute of limitations is also a good plea; in which the plaintiff must allege," that he is not guilty within six 1787, scat. I. years;" for although, in actions of assault, the time of lim- 1 Esp. Dig. 434. itation is three years, yet the gist of this action is the criminal conversation; it being declared on, as case, for the criminal conversation. Macfadzen v. Olivant, East's Rep. 388. This action is therefore brought in the name of the husband only; because the gist of the action is not the assault on the person of the wife, but the injury sustained 1 Selw. 9. by the husband, in consequence of the adultery. IV. Of the evidence in such action. Plaintiff must bring proof of the actual solemnization of a marriage, nothing shall supply its place; cohabitation or 1 Esp. Dig. 430. reputation are not sufficient, nor any collateral proof whatever. Morris v. Miller, 4 Burr. 2057. 1 Esp. Dig. 430. Bull. N. P. 27. 1 Esp. Dig. 431. Bull. N. P. 28. Mass, Stat. June 22, 1786, sect. 8. Bull. N. P, 28. 1 Esp. Dig. 431. Edwards v. Crock, 4 Esp. Rep. 39. I Selw. 17. As where plaintiff, in this case, proved articles made after marriage with his wife, for the settling of the wife's estate, with the privity of the relations on both sides; and also proved cohabitation, name, and reputation; he proved further, that the defendant had confessed that he had committed adultery with the plaintiff's wife, which, it was contended, was an admission of the marriage; but the plaintiff was nonsuited for want of proof of a marriage in fact. The marriage may be proved, either by a copy of the record of such marriage, or by the testimony of one who was present at the ceremony. It is sufficient, if the plaintiff be of any religious sect, to prove a marriage according to the rites and ceremonies of that sect; as Jews, Quakers, &c. gravation of damages. The confession of the wife will be no proof against the defendant, but a discourse between her and the defendant may be proved. So letters written to her by the defendant may be read as evidence against him, though her letters to him will be no evidence for him. In a recent case, where the plaintiff and his wife were servants, and necessarily living apart in different families, Lord Kenyon, Ch. J., was of opinion, that letters written by the wife to the husband, before any suspicion of the adultery, might be read as evidence of the connubial affection which subsisted between the plaintiff and his wife, observing at the same time, that, before he admitted the letters to be read, he should require strict proof when, and under what circumstances, they were written, in order to shew that, at the time, there was not any suspicion of misconduct in the wife. V. Of the damages. The injury, in the case of adultery, being great, the Circumstances in ag- damages are generally considerable; but they depend upon circumstances, that is, they are increased or diminished from the consideration of the rank and quality of the plaintiff; so, from the peculiar turpitude of the case, as if the defendant was the friend, relation, or dependant of the plaintiff; so, if it appeared that the plaintiff and his wife Bull. N. P. 27. 1 Esp. Dig. 432. lived happily before that transaction and acquaintance with the defendant; so, that the wife had always borne a good character till then ;. so, that there was a settlement and provision for the children of the marriage: All these circumstances go in aggravation of the damages, in which, also, the circumstances and property of the defendant are always considered. igation of damages. 1 Selw, Abr. 18. Gardiner v. Jadis, On the other hand, many circumstances go in extenua- Circumstances in mittion of the offence, and mitigation of damages: Such as the plaintiff's ill usage or unkind treatment of his wife, of his intolerable ill temper, of his having turned his wife out of his house, and refused to maintain her, &c. previously 4 T. R. 657. to the adulterous intercourse; gross negligence, or inattention of the plaintiff to his wife's conduct, with respect to the defendant; the wanton manners of the wife, or first advances made by her to the defendant; a prior elopement of the wife, and criminal correspondence with another person, or having had a bastard before marriage; letters written by the wife to the defendant before his connexion 2 Esp. Rep. 562. with her, soliciting a criminal intercourse, &c. But the defendant will not be permitted to prove acts of misconduct I Selw. 18. of the wife, subsequent to the commission of the act complained of in the action. It has been supposed, that, in this action, a new trial cannot be granted for excessive damages; but in the case of Chambers v. Caulfield, 6 East's Rep. 256, Lord Ellenborough, Ch. J., in delivering the opinion of the court, said, that if it appeared to them from the amount of the damages given, as compared with the facts of the case laid before the jury, that the jury must have acted under the influence, either of undue motives, or some gross error or misconception on the subject, they should think it their duty to submit the question to the consideration of a second jury. VI. Of the costs. sittings. Mar. 2, 1805,London Elsam v. Fawcett, I Selw, 19. Mass, Stat. March 11, By statute it is enacted, that no action shall be sustained in any court of common pleas, where the damage demand- 1808, sect, z. ed does not exceed twenty dollars, unless by appeal from a justice of the peace, saving such actions wherein the title to real estate is concerned; and if, upon any action originally brought before the court of common pleas, judgment shall be recovered for no more than twenty dollars, debt or damage; in all such cases, the plaintiff shall be entitled, for his costs, to no more than one quarter part of the debt or damage so recovered. [71] TITLE VIII. ADVANCEMENT. By statute it is enacted, that any deed of lands or tene Mass. Stat. March 9, ments, made for love and affection, or where any personal 1784, act 3, sect. 7. estate delivered a child shall be charged, in writing, by the intestate, or by his order, or a memorandum made thereof, or delivered expressly for that purpose, before two witnesses, who were bid to take notice thereof; the same shall be deemed and taken, an advancement to such child or children, to the value of such lands, tenements, or personal estate. I Mass. T. R. 527. In the case of Scott, and others, v. Scott, which was an appeal from a decree of the judge of probate, the appellants Scott & al. v. Scott, claimed to have the value of a piece of land, conveyed from the ancestor to his son, considered in the apportionment of the ancestor's estate, as an advancement by him to his son; because his deed appeared to have been made for the consideration of love and affection. And the appellants grounded their claim on the provision in the statute above quoted. But it appearing that the deed, besides the consideration of love and affection, expressed the further consideration of five shillings, the court held, that said further consideration of five shillings was of sufficient value to remove all presumption of an advancement in this case, and the decree was consequently affirmed. Mass. Stat. Mar. 12, And now, by a subsequent act, it is provided, that all gifts or grants, made by the intestate, to any child or 1806, a&t 1, sect. 3. grand-child, of any estate real or personal, in advancement of the portion of such child or grand-child, and which shall be expressed in such gift or grant, or otherwise charged by the intestate in writing, or acknowledged in writing, by the child or grand-child, as made for such advancement; such estate, real or personal, shall be taken and estimated |