entry into an inn or tavern, at all seasonable times, is justifiable.

Where an entry or license is given to any person by law, and he abuses it by misfeasance, he will be considered a trespasser ab initio . But if the defendant pleads a license in law, and the plaintiff intends to rely on an abuse of such license, he must plead it in his replication, for he cannot give it in evidence on an issue taken on the license b. Where the defendant justifies a trespass for preventing a tortious act of the plaintiff, if the plaintiff relies on a license which rendered his act lawful, he must reply it, for he cannot give it in evidence under de injuriá sua propria c.

5.-Other justifications.] The defendant may justify breaking and entering the plaintiff's close under a legal process, if he had it in fact at the time; although he declared then that he entered for another cause d. A justification under the process of a civil court, must shew that such process has been returned. Where in trespass for breaking a dwelling-house, assaulting the plaintiff, &c., the defendant pleaded not guilty, two justifications under a ca. sa., except as to the breaking, &c., alleging that the outer door was open; replication, de injuria; held, that as the outer door being open was a condition precedent to the defendant's right to enter and arrest, it was a material averment, and that the plea was sufficiently traversed by the replication ; held, secondly, that it being proved that the defendant had broken the outer door, whereby he was a trespasser ab initio, the jury were properly directed to give damages for the whole of the injury complained off.

a

If A. wrongfully place his goods on the premises of B., the

Six Carpenters' Case, 8 Co. 146.

Aitkenhead v. Blades, 5 Taunt. 198. Taylor v. Cole, 3 T. R.

latter may justify an entry on the premises of A. next adjoining, and putting the goods there for his use a.

The plaintiff declared in trespass for breaking the close, and set out the close by abuttals; the defendant justified, alleging that the said close in which, &c., was part of an allotment of six acres, made by commissioners duly authorized for certain purposes, in execution of which he entered; the plaintiff replied, that the close in which, &c., was not part of the six acres, &c., and thereupon issue was joined; it appeared that the close set out by abuttals was not all within the allotment, but that the part in which the actual trespass occurred was within it; held, that the justification was sufficiently made out, for "the close in which," &c., does not mean the whole close referred to in the declaration, but the place in which the trespass is proved to have happened, and the defendant may so apply it. The trespass was proved in one part of the close only, and the defendant established his right in that part b.

1.-When an action of crim. con. lies.] AN action of trespass lies at the suit of a husband for criminal conversation with his wife c. But it seems that the husband cannot maintain such an action if he has been in any degree a party to his own dishonour, by permitting his wife to carry on an adulterous intercourse with other men, or by assenting to the particular act of adultery with the defendant, or by having totally and

Ray v. Sheward, 2 Mees. & Wels. 424. 1 Mur. & Hur. 68. Vin. Ab. tit. Trespass, Pl. 17. See Houghton v. Butler, 4 T. R. 364. b Bassett v. Mitchell, 2 B. & Ad. 99. Richards v. Peake, 2 B. & C.

Woodward v. Walton, 2 N. R. 476. Macfadzen v. Olivant, 6 East, 387. Case is a concurrent remedy, but trespass is the usual form. Id. Cooke v. Sayer, 2 Wils. 85. B. N. P. 128.

The plaintiff must prove a marriage in fact.

permanently given up all advantages to be derived from her society a. It was held in one case that the action could not be maintained where the husband and wife lived apart by a deed of separation. But the propriety of that decision was afterwards doubted by Lord Ellenborough, who laid it down, that the right of the husband to maintain such an action was not affected by a separation under a deed, unless it appeared that he renounced all future intercourse and society with his wife. If, however, the woman be ever so profligate, unless it be with the husband's privity, it will not operate as a bar to the action; but it will go in mitigation of damages d

It was laid down by Lord Kenyon, that if a husband violated the marriage bed, and transgressed the rules of conduct which decency requires, by openly carrying on a criminal intercourse with other women, he could not maintain this action. But this doctrine was afterwards disapproved of by Lord Alvanley, who thought that the infidelity or misconduct of the husband could not be set up as a legal defence to the adultery of the wife, that it operated in mitigation of damages only. It is no bar to this action that the plaintiff has obtained a verdict in an action of the same kind against another party, although the cause of action in both suits accrued at the same time ɛ.

2.-Proof of marriage.] In order to sustain this action, the plaintiff must prove a marriage in fact; proof of reputation and cohabitation is not sufficienth; and even the defendant's admission of the fact has been held to be insufficient. As where the defendant was surprised at a lodging with the plaintiff's wife, and on being asked where Major Morris's (the plaintiff) wife was, he answered, "in the next room"; this was held to

a Winter v. Henn, 4 C. & P. 494. B. N. P. 27. Hodges v. Windham, Peake, 39. Duberley r. Gunning, 4 T. R. 656.

b Weedon v. Timbrell, 5 T. R. 357. Bartelot v. Hawker, Peake, 7.

Chambers v. Caulfield, 6 East, 244. And see Edwards r. Crock, 4

Esp. 39.

d B. N. P. 27.

* Stuart v. the Marquis of Blandford, cited 4 Esp. 17. Wynd. ham v. Lord Wycombe, Id. 16. f Bromley v. Wallace, 4 Esp. 237. Gregson v. M'Taggart, 1 Camp.

415.

Morris v. Miller, 4 Burr. 2057.

be insufficient, for it was nothing more than a confession of the reputation that she went by the name of the plaintiff's wife, and not a confession of the fact of marriage. There can be no doubt, however, that a distinct and solemn recognition of the marriage made by the defendant is evidence as against him of that fact b.

The fact of marriage is usually proved by producing an examined copy of the register, and some evidence of the identity of the parties. It may also be proved by any person who was present at the celebration of the marriage, or by the production of the register, and it is not necessary to call the subscribing witness to the entry in the register; any evidence which will satisfy the jury as to the identity of the parties will be sufficient ". If the plaintiff be a quaker, or a jew, the marriage must be proved to have taken place according to the ceremonies of their respective sects, as they are not included in the marriage acts d. And as marriages beyond the seas are excepted out of the prohibition in the marriage acts, it must appear that such marriage was performed according to the law of the country where the marriage took place, and evidence of that law must be given by a person of competent knowledge on the subject. A marriage between English subjects in the chapel of an English ambassador abroad is valid f. But a marriage, abroad, not celebrated in an ambassador's chapel, nor according to the laws of that country, is invalid 8. A marriage of English minors in Scotland, according to the law of that country is valid, although contracted in contravention to the laws of England, between parties going to Scotland for that purpose h. So is a marriage, even without a license, by a dissenting minister in Ireland, in a private room.

How marriage may

be proved.

How marriage must be solemnized.

Having considered what is prima facie evidence of marriage heretofore celebrated, it may be observed, that the defendant may rebut the presumption of a legal marriage, arising from such evidence, by shewing that the marriage was not legally performed, and therefore void. The first statute of provision on this subject was the 26 Geo. II. c. 23, which enacted, that "all marriages solemnized in any other place than a church or chapel, unless by special license, or without publication of banns, shall be void." This statute was qualified by the 3 Geo. IV. c. 75, and ultimately repealed by the 4 Geo. IV. c. 76, sect. 2 of which enacts, that all banns shall be published in some public chapel, in which they may be lawfully published, belonging to the parish wherein the persons to be married shall dwell, upon three Sundays preceding the solemnization of marriage; sect. 6 provides, that no minister shall be obliged to publish banns, unless the persons to be married shall, seven days previously, deliver to him a notice of their true christian names and sirnames, and of the houses of their respective Publication abodes, &c.; and by sect. 22, "if any persons shall knowingly and wilfully intermarry without due publication of banns, or license, such marriage shall be null and void." It has been held, that if banns be published in the wrong name of the parties, and if there be no evidence to shew that they had ever been known by such names, the marriage is null and void". But banns published in an assumed name without fraud, will be sufficient, if the parties had previously been known by such name. The rule on this subject appears to be, that if the banns be published in names totally different from those which the parties ever used, the marriage will be void, whether the misdescription arose from a mistake or design; but if there be a partial variation only, and it appears not to have proceeded from any fraudulent design, it will be valid ".

of banns.

Though the statute requires the assent of parents or guardians to the marriage of minors by license, yet the marriage of minors without such assent, will not be on that account void 4.

* Mather v. Ney, 3 M. & S. 205. b R. v. Billinghurst, 3 M. & S. 250. R. v. St. Faiths Newton, 3 D. & R. 348.

с

R. v. Tibshelf, 1 B. & Ad. 195. R. v. Wroxton, 4 B. & Ad. 640.

d R. v. Birmingham, 8 B. & C. 29.