unnecessary. There can be no precedent to support an action for criminal conversation by a wife against the seducer of her husband. In her case, therefore, neither collusion, nor the want of diligence, can be reasonably inferred from the omission of proceedings at law. A question, however, was raised in Mrs. Addison's case ("), whether in a suit for divorce by the wife on the adultery of her husband, the record of a judgment in an action against that husband for criminal conversation might be given in evidence on the part of the wife. The Lords were of opinion that the judgment might be received; not as matter necessary to be proved, but as matter which, under the peculiar circumstances of the case, they did not object to receive. The House, in some cases, may desire to know, not only the result of the trial at law, but also the evidence laid before the jury. Thus in Mr. Miller's case ("), where condonation was alleged, a witness having sworn before their Lordships that he had not mentioned the fact of Mrs. Miller's infidelity to her husband till a certain day; the House required to know whether he had given the same answer on the execution of the writ of inquiry before the Sheriff? A copy of his evidence before the Sheriff was afterwards produced; from which it appeared that he had there sworn that his communication was made two days earlier than the day mentioned in his evidence before the Lords. In the case of Sir Edward Owen (°), a writ of error having been brought into the Exchequer from a judg ment against the adulterer, the House permitted the evidence in support of the bill to be received, in the mean time, de bene esse, until the writ of error should be disposed of; and upon subsequent judgment of non pros. by the (") Session 1801, infra. (") Session 1821, infra. (°) Session 1817, infra. Court of Exchequer Chamber, the bill was allowed to be proceeded with. But should the errors assigned appear to be frivolous, the House, I apprehend, would not suspend proceedings on the bill. With the view of negativing all presumptions or surmises of collusion, the petitioner ought to discover active diligence in enforcing the recovery of such damages and costs as may have been awarded against the adulterer. It has been held that he must show, not only that the damages and costs have been bona fide paid; but also that they have been bona fide retained. The steps which, under various circumstances, it will be necessary to take for the recovery of damages and costs, may be collected from the inquiries which were instituted by the House on this head, in the several cases of Mr. Moore (Session 1805 P), Mr. Carleton Miller (Session 1807 P), Mr. Taaffe, (Session 1819 o), Mr. Barker (Session 1825 P), Mr. Tyrrel (Session 1829 P), Mr. Howell (Session 1830P), and Mr. Kinnaird (Session 1831 P), Mr. Pemberton (Session 1839), and Mr. Wiguelin, (Session 1839); in the last of which cases, a writ of execution was sued out against the adulterer, and a return made thereto, stating that his body was in prison for the damages, 5197. 13s. 6d. (") It may occasionally happen that the petitioner, however anxious to avail himself of his legal remedy against the adulterer, may be prevented from so doing; and may indeed be barred of that remedy, by causes which no vigilance or industry on his part can control. (P) Infra. (9) In the case of Baron de Robeck, (Session 1828), the bill stated that the petitioner had not been able to discover any effects of the adulterer (Lord Sussex Lennox) out of which he could levy the damages by fieri facias; nor had he been able to take the said Lord Sussex Lennox himself in execution, inasmuch as the said Lord Sussex Lennox had ever since the said elopement resided in France. In the first place, the adulterer may die before the husband ascertains the fact of adultery; (or although he mayhave ascertained the fact of adultery) before any steps taken for the purpose of redress are matured into fruition. Something of this kind actually occurred in the case of Mr. Graham ('), where there were two adulterers, one of whom died before the crime was discovered; and the petitioner therefore showed that he had proceeded against the other, from whom he recovered nominal damages. Secondly, the adulterer may be unknown. It may defy all inquiries to discover who he is; and thus the husband may be as effectually defeated as in the case of death. There are many cases in the Journals where the proof of adultery against the wife was held complete, although no evidence was given respecting the adulterer. Thus, in Mr. Coode's () case, the petitioner's counsel, in opening the allegations of the bill, having stated that it had been out of the power of the petitioner to bring an action at law in consequence of not being able to ascertain with whom the adulterous intercourse had taken place, he was asked whether he could refer to any precedents in which the judgment of a court of law had been dispensed with. Several cases were then cited; upon which the bill was suffered to proceed, and it ultimately passed into law. Where the adulterer is a foreigner, and has gone abroad before the adultery has been discovered, redress at law in this country is unattainable; as in Lord Ellenborough's (') case, where the adulterer, Prince Swchartzenberg, an Austrian, left England before any measures at law could be resorted to. So in Mr. Shakerley's ("), where the adultery was committed in Paris with a (1) Session 1827, infra. (*) Session 1839, infra. (*) Session 1830. Frenchman, against whom an action was of course out of the question. If the adulterer be an English subject, but have left the country before the husband has had an opportunity of commencing an action, the House will expect him, in that case, to issue an outlawry against the adulterer. Thus in Mr. Howell's (") case, where the adulterer had sailed for the Cape of Good Hope, the House were nevertheless of opinion, that an outlawry ought to have been issued; taking the chance that the party might perhaps be induced to enter an appearance; and the proceedings on the bill were allowed to stand over with a view to see whether the petitioner could not amend his case in this respect ("). According to the modern practice of the House, it is, I apprehend, no excuse for not bringing an action, that the adulterer is a poor man, or an insolvent debtor, or an uncertificated bankrupt, from whom neither damages nor costs can be recovered (*). Thus, in Mr. Kinnaird's() case, where the adulterer was a Serjeant in the Guards, subsisting, with a wife and family, on 14s. 7d. a week, the husband nevertheless proceeded against him, and obtained a verdict for 50l. damages. The legal remedy, in short, cannot, under any state of circumstances, be repudiated without hazarding the imputation of negligence or collusion. It seems expedient, therefore, to proceed for damages in every case where the adulterer is known, and within the reach of justice. () Session 1830, infra. (") In Mr. Glover's case (Session 1756), and Mr. Weller's case (Session 1762), the petitioners issued an outlawry against the adulterer. (*) In Lord Hardwicke's time a case occurred where the adulterer's poverty was held a sufficient reason for not bringing an action, he being a prisoner for debt in the Fleet Prison. (Lascelles' case, Session 1751). (Y) Session 1831, infra. THE PRACTICE ON BILLS OF DIVORCE. CHAPTER THE SECOND. Of the Ecclesiastical Sentence. Indispensable to Parliamentary Divorce, 496.-Object of it, ib.-The Sentence, though definitive, may be appealable, 497.—Proceedings and Evidence in the Ecclesiastical Court referred to, and commented upon in the Lords, 498,—and compared with the Proceedings and Evidence on Bill, 499.-Necessity of duly authenticating Proceedings in Ecclesiastical Court, 500. THE Standing Order of the House of Lords No. 141 (*) requires, "That no petition for any Bill of Divorce shall be presented to the House unless an official copy of the proceedings, and of a definitive sentence of divorce a mensa et thoro in the Ecclesiastical Court, at the suit of the party desirous to present such petition, shall be delivered upon oath at the bar of this House at the same time." By requiring production not only of the sentence, but of the proceedings in the Ecclesiastical Court, two distinct advantages are gained by the House, both of them material. In the first place, it has the support and security which necessarily arise from the deliberate decision of a court of competent jurisdiction; and, (*) See Appendix, No. 6. |