154 Conduct of the husband and wife towards each other. The wife's letters to the defendant, in general, are not evidence for him against the plaintiff:(1) under certain circumstances, however, they may be admitted; as, for instance, in mitigation of damages, with a view of shewing, that the wife was the seducer, and made the first advances of a criminal nature to the defendant.(2) And, in general, the wife's letters to the husband are not evidence for him against the defendant. Yet to this rule, also, there are exceptions; as, where the letters have been written by her during an absence from her husband, and are offered as evidence of her feeling towards him.(3) Conversations between her and the defendant, are, of course evidence against the defendant, in the same manner as the defendant's letters to the wife, or proof of any other transaction in which he bears a part. The state of feeling and the degree of mutual affection between the parties, before their acquaintance with the defendant, are to be proved by those who were in habits of intimacy with the family. It is the general tenor of their feeling, and the prevailing habit of their daily intercourse, which best shew a state of happiness. If they have lived for some time necessarily separate, (as in one case,(4) where they were servants in different families,) or if there has been only a temporary absence,(5) the letters of the wife to the husband, written during the separation and before any suspicion of her misconduct, are admissible, as shewing her conduct and demeanour to the husband. "What the husband and wife say to each other is, beyond all question, evidence to shew their demeanour and conduct, whether they were living on better or worse terms; what they write to each other may be liable to sus (1) Treatise on Evidence, vol. 1. p. 84 (2) Elsam v Fawcett, 2 Esp. N. P. C. 562. (3) Sec infra, (4) & (5). (4) Edwards v Crock, 4 Esp N. P. C. 39. (5) Trelawnay v Coleman, 2 Starkie, 191. 1 Barn. & Ald. 90. S. C. picion, but, when that is cleared up, the ground of the ob jection fails."(1)(a) As the plaintiff is bound to prove an actual marriage, so it will be open to the defendant to prove, if he can, the marriage invalid and void. Thus, where the marriage in question has been solemnized in a public chapel, proof is admissible, on the part of the defendant, that banns had not been usually published in the chapel, before the passing of the marriage act;(2) in which case, by the provisions of that act, the marriage is declared to be void to all intents and purposes. If it can be shewn, that the plaintiff consented to the adulterous intercourse ;(3) or that he suffered her to live in a state of prostitution, by which the defendant was drawn into the criminal connection ;(4) the plaintiff cannot in such a case maintain this action. If such a man were allowed to recover a verdict, said Lord Kenyon, the very source and first principles of justice would be contaminated.(5) Evidence for the defendant. 156 in extenua tion. The circumstances in extenuation, to lower the amount Circumstances of damages, will vary with every varying case. Proof of the wife's tainted character, as, that she had before been a prostitute, or eloped with another;(6) or proof of her being a woman of notoriously bad character, and that she made the first advances of a criminal nature to the defend (1) By Lord Ellenborough, C. J. 1 Barn. & Ald. 90. (2) Taunton v Wyborn,2 Camp. 297. (3) Duberly v Gunning, 4 T. R. 651. 1 selw. N. P. 11. n. (4) (4) Bull. N. P. 27. 1 Selw. N. (5) In the case of Duberley v (a) No action for crim. con. can be brought for any act of adultery, after separation between husband and wife. Fry v Derstler, 2 Yeate's Rep. 278. Weedon v Timbrell, 5 Term Rep. 357. 156 Evidence of character. ant;(1) or proof of the husband's profligate habits, and his criminal connection with other women ;(2) or that he felt no affection for his wife, turning her out of his house and refusing to maintain her, before the intercourse with the defendant;(3) or that he connived at the indecent familiarities of the defendant,(4) and showed the utmost indifference about'her reputation and character; these are some of the many circumstances, which manifestly ought to have a very considerable effect with the jury in reducing the amount of damages. One defence, as we have seen, is that the plaintiff connived at his wife's elopement. In such a case proof may be admitted, on the part of the plaintiff, of the wife's declaration as to her intention and purpose in leaving his house; for the question in effect is, whether the husband knew that she was about to elope, or whether he believed that her intention was as she represented.(5) If the wife's character for chastity has been attacked, whether by the testimony of witnesses called on the part of the defendant, or by the course adopted in the crossexamination of the plaintiff's witnesses, evidence in support of her character will be properly admitted, either in chief or in reply. Even though the cross-examination may have failed in its object, yet perhaps the plaintiff might be properly allowed in the progress of his case to produce some evidence in favour of her character, for an imputation, once thrown out, is too apt to excite suspicion even in the fairest minds: and, unless at least the imputation is retracted in the most unqualified terms, so as to leave not a trace behind, the evidence of character ap (1) Elsam v Fawcett, 2 Esp. N. (2) Bull. N. P. 27. Bromley v 4 1. p. 188. (3) Bull N. P. 27. (4) Bull. N. P. 27. 4 T. R. 655. 658. (5) oare v Allen, 3 Esp. N. P. C. 276. pears to be made necessary by the course which the other party has adopted in the defence. However, it should seem that Lord Kenyon doubted of the propriety of admitting such evidence, in a case where some imputation had been unsuccessfully made on the character of the plaintiff.(1) Lord Kenyon is reported to have said, in that case," although the cross-examination of the plaintiff's witnesses had been directed to impeach the character and conduct of the plaintiff, he did not think that this authorised him to break through the rule of evidence, by going into proof of character, as that character stood unimpeached by the testimony of the witnesses examined, who had denied the imputation intended to be conveyed." II. Secondly, of the action for assaulting and debauch- II. Action for ing the plaintiff's daughter. This action is considered to be an action of trespass, although the real foundation of the action is not violence, but the loss of service, which the plaintiff is supposed to have sustained in consequence of the seduction. (2)*(a) This is the only legal foundation for the action; but beyond such a loss, which in most cases is merely imaginary, the plaintiff will be allowed to recover damages, aggravated by the injury done to the object of his affection. However difficult it may be, said Lord Ellenborough in one of the cases on this subject,(3) to reconcile to principle the (1) King Francis, 3 Esp. 116. (2) Woodward v Walton, 2 New Rep. 476. (3) 11 East, 24. And see Fores y Wilson, Peake, N. P. C. 54. * The action may be maintained by one who has adopted an orphan as his own child; (Irwin v Dearman, 11 East 23.) or by one standing in the place of a parent, (as, an aunt, even during the parent's life. Edmondson v Machell, 2 T. R. 4.; and see 11 East, 24. (a) The Supreme Court of Appeals of Virginia held in Parker v Elliotte, that the plaintiff may elect to bring trespass on case. 6 Mumford's Rep. 587. 1 Virg. Rep. 33. debauching the plaintiff's daughter. 157 Loss of service. giving of greater damages on such a ground, the practice is become inveterate, and cannot now be shaken. The relation of master and servant must subsist, a least in some degree, but a very slight degree will be sufficient.(1) Proof of the most trifling acts of service, (such as the milking of cows, (2) or making tea for the plaintiff,) will enable the plaintiff to maintain this action of trespass for assaulting and debauching his daughter. The daughter's attendance on the parent in sickness is another act, which may be considered an act of service, and amply sufficient for the purposes of such an action. Indeed, if the slightest act of service were not sufficient, the action. would necessarily be confined to the lower ranks of life, in which the daughter is literally a servant; and could never be extended to the higher order, where it is generally more wanted, and where the injury is often of a more aggravated kind. However, some evidence of this kind, slight as it may be, will be absolutely necessary; and it seems to be equally necessary, whether the daughter is of full age or under age.(3)*(a) (1 Postlethwaite v Parkes, 3 168. Burr. 1878. 2 T. R. 167. (2) Bennett v Alcott, 2 T. R. (3) Dean v Peel, 5 East, 45. In the case of Dean v Peel, above cited, which was an action on the case for debauching the plaintiff's da 'ghter, it appeared that the daughter who was under age, was at the time of the seduction not living with her father, but was in service in another person's family, and had no intention of returning to her father's house; so that this case does not expressly determine, whether some proof of actual service is necessary, where the daughter, under the age of twenty-one years, is living with the father and under his protection. In the case of Jones v Brown, (Peake's N. P. C. 233.) which was an action for an assault upon the plaintiff's son and servant, Lord Kenyon declared, as (a) The rule, says the Supreme Court of New-York, is settled, that if the daughter be of age she must be in her father's service, sp |