all other cases. Where a wife is prosecuted criminally for adultery, not for divorce, but ad publicam vindictam, it can not be pleaded; for there the public, not the husband, is the injured party, and it can be no excuse for the wife's breach of the good order of society, that her husband had done so before her, whatever it might be in a mere civil prosecution instituted by himself(a). Taking the law, therefore, to be clear, I have only to examine how far the evidence supports the charge of the husband's criminality, with the satisfaction of knowing, that if it does, I I am relieved from the necessity of inquiring minutely into the other pleas of defence.

This proof arises from the testimony of several women. First, Faris, who says, "That about nine years ago, she went to live with Mr. and Mrs. Forster, and that, in the morning of the third day after her arrival at their house at Egham, she went into a room, up one pair of stairs, to open the windows, supposing it was a spare room, and seeing the window curtains down, she drew them up, and proceeded to a bed in the room, and drew back the curtains, and was then surprised at seeing her master awake in bed; that he then immediately put his arm out of bed, and laid hold of her arm, and said something she does not now recollect, and looked her in the face, on which she begged his pardon, being flurried, and immediately left the room: That Mrs. Forster had not then arrived from Southampton, and that soon after Christmas, she was directed by Mrs. Forster to go to clean a house at Englefield Green, where they afterwards resided, which she did. It was a ready furnished house, but no person then resident in it, and Mrs. Forster, said, Mr. Forster said she must go there, and she went and slept there alone for about a fortnight; and about three o'clock in the afternoon of a Sunday, during that time, Mr. Forster came to the house alone, and the deponent went over the house with him, taking an account of the furniture; and that, in the last room they went into, no other person being in the said room, he tempted her, and said to her, 'Did not you come into the world for the use of men?' and she said to him, 'It was a sin; that he had a wife; that she was a poor girl, and what would become of her?' That he said, "What is matrimony? a man with a black gown preaching before you, that is nothing; that he wondered such a girl could withstand such temptations;' and said, 'I hope you will consider of it.' To which she said, 'I hope you will.' And he then left her: That about a week afterwards she returned to Egham house, and about five days afterwards, he came into his dressing room, where she was cleaning the stove, and as she was going out of the room, he laid hold of her, and said, 'Have you considered?' to which she replied, 'Sir, if I have not considered, I hope you have,' and immediately left him. And afterwards, on the same day, up stairs, he asked her if she had no victuals in the house, and gave her two half guineas; and the witness being asked, agreeably to the contents of the allegation, whether he had carnal knowledge of her? says, she is ready to answer every thing fair, but such questions as that she does not choose to answer."

Taking the witness to have spoken true, it is a decisive proof of corrupt inclinations and endeavours on the part of Mr. Forster; and I see in it enough to induce me to infer, that there was no absolute want of

(a) So under the Lex Julia "Quæ res potest et virum damnare, non rem ob compensationem mutui criminis inter utrosque communicare.” Dig. L. 48. Tit. 5. 13. § 5.

736.

63.

corrupt inclination in her, and moral conviction would not hesitate to
draw the conclusion, however legal reasoning might be compelled to pause.
The same witness goes on to say, "that about six years ago, she be-
ing then a married woman, with a child in her arms, met Mr. Forster,
and told him, on his noticing her, that she heard he wanted somebody
to clean the house, and she should be glad to come and do his work;
and he appointed her at four oclock the next day, when she went, and
accompanied him to the different rooms, where he told her to follow
him, and said he would tell her what she should do, and he turned down
the bed-clothes, and desired her to mind all the beds, and particularly
in the yellow room, where he gave her half a guinea." And the wit-
ness being again asked, "whether he had not then, and frequently, car-
nal knowledge of her?" replied as before, "that she does not choose to
answer." He asked her, if she could recommend him to any body, she
says she could not.

Thus stands the evidence of this witness, leading to a conclusion,
which every man's private conviction must draw, even if it presented
itself singly; but it derives "confirmation strong, from proofs furnished
by other females, on whom similar attempts have been made in a course
of conduct familiar and habitual in this person.

Ann Slark, who is a nursery maid, says, "that about nine years ago, the family, who were all at Bath, went out, but Mr. Forster would not go with them, and he did not; but the witness being in the act of warming his bed at night, he came from an adjoining room undressed and in his shirt, and said he would kiss her, on which she screamed out and ran away." An attempt certainly of great indecency in the master and father of a family.

The next witness is Sarah Walker, who has been examined as well
by the husband as by Mrs. Forster.-She says, "that on a day when
her mistress was out, she being in her said mistress's bed-room, was
desired by Mrs. Forster to go with him into a room up stairs to look at
some curtains, in which room there were several spare beds, and she,
not suspecting his intention, went, and after having opened and looked at
some spare furniture, he took hold of her by the shoulders, and endea-
voured to throw her down on the beds; that she struggled very much
with him, and having also hurt his arms by pinching him, prevented
his throwing her down; and, having disengaged herself, she said she
would tell Mrs. Forster of his conduct, which he begged she would not,
and promised never to take liberties with her again; and she says, she
has no doubt it was his intention to have committed adultery with her,
if he could have prevailed upon her."

Another young woman says,
"that when she first went to live in his
service, about two months after Mrs. Forster went to France, she took
some water into his library to wash his feet; upon which he locked the
door, and said he would not let her go, unless she would promise to let
him into her bed-room at night; and when she had retired to her room,
which she locked, heard him knock at the door, and he said, she had
promised to admit him, to which she replied, that she did not mean it,
and he continued at the door nearly half an hour: and afterwards at an-
other time, he held out his hand to her with money, which she struck
away, and beat out of his hand, saying, she neither wanted him or his
money."

In these cases I am to understand that he failed in his endeavours;
but failed from no want of purpose or activity on his own part, but from

an honest and powerful resistance on the other. These instances therefore furnish a strong corroboration to the conclusion to be drawn from the other case, where it is evident that no such resistance was to be apprehended, and where the conquest, by such arguments, and solicitations, and bribes, and his bodily force, all of which were used, must be presumed to be easy. But even if no such definitive presumption at-32 tached, I should be inclined to hold that the general conduct of the husband, as shown, is quite sufficient to support a plea in bar, though not sufficient to support an original accusation of adultery. For it is a prin- 3305 ciple that runs through a variety of cases, that many things are good for the one purpose, though deficient for the other. The husband, who enters the Court with a criminal imputation on the conduct of his wife, must purge his own conduct of all reasonable imputation of the same nature; and, if he complains of her impurities, must be untainted by any gross impurities of his own. It is a satisfaction to find this doctrine, in the case alluded to of Lord Leicester and Lady Leicester, laid down by 446. the able person who then presided in the Court of Arches, the elder Dr. Bettesworth. In an accurate note of his judgment, I find it expressly laid down, "that where adultery was pleaded, by way of recrimination only, to bar, it was not necessary to prove such strong facts against the plaintiff, as would be required to convict the other party in a suit for divorce; for, to obtain a sentence of divorce, the husband must have a pure character."

Let me apply this observation to the present case. Here is a woman for ten years acting irreproachably; exemplary in her conduct as a wife and a mother, and who, after gross neglect and gross provocation on the part of the husband, falls at last a victim to the arts of seducer. In the mean time, what has been the behaviour of the husband? Planting corruption most sedulously all around him,-soliciting the chastity of his female servants, by every art of profligacy that he could apply,converting his own house into a brothel, and even engaging these females in the employment of finding for him other objects of his criminal gratifications. Surely this is not the man who can call out, in a court of justice, against the unfortunate delinquency of his wife: He cannot be listened to on any such complaint.

After what I have said upon this point, it is unnecessary for me toy,253 travel much into other parts of the case. Upon his general treatment of his wife, I will content myself with stating the deposition of Mr. Stephenson, a man at a grave time of life, in a grave profession, being the medical attendant on the family, and having nothing to prevent him from making his observations in the most dispassionate manner. His account is this, "That she was a very pleasing and agreeable woman, and, as far as he ever saw or observed, always behaved with as great propriety and tenderness towards her husband and children, as a man would wish to see;-that Mr. Forster treated her with great indifference and inattention, not to be expected by a young handsome woman, as X Mrs. Forster was, every way qualified to make an agreeable companion to a man who treated her with affection;-that, in 1785, he learnt, in consequence of a question he necessarily put to Mrs. Forster, that Mr. Forster had withdrawn himself from her bed, at which time she appeared to him to behave with great propriety; and he knows of no cause or provocation for his so withdrawing himself."

Most certainly, what Dr. Harris has said is true, "that the duty of 34 matrimonial intercourse cannot be compelled by this Court, though ma

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trimonial cohabitation may." This species of malicious desertion is a ground of divorce in some countries,-certainly not so here,-and still less will it justify a wife, in a resort to unlawful pleasures, that lawful ones are withdrawn. It is not however to be considered as a matter perfectly light in the behavior of a complaining husband, that he has H.259.withdrawn himself without cause, and without consent, from the discharge of duties that belong to the very institution of marriage; and if he has so done, he ought to feel less surprise, if consequences of human infirmity should ensue.

I have to observe likewise, that his marital conduct is, in the present instance, in the highest degree inofficious. A husband is expected by the law to pay a due attention to the behaviour of his wife, and to give her the benefit of some superintendance, where she is placed in dangerous situations. He sends her to Lisle, a French garrison town, amongst French officers living with the known profligacy of that profession in that country, and the resort of dissolute persons both of our own and other countries. He had a confidence, it is said, in the discretion of friends, whom he placed about her; and of those friends, Mr. Mussell, who was one, does not appear to be entitled to any high panegyric on account of his attention to her conduct. This clearly appears from her own letters, that she was the object of criminal pursuits. Mr. Forster is made acquainted with the amorous billets which she had received from the Monsieurs, as they are called. One of her letters speaks of an attack almost by force; still Mr. Forster does not think it necessary to repair to her, but lingers two months in England, though such attempts of French gallantry upon his wife had become matters of general conversation, and even of general merriment, in which he was not indisposed to join unreservedly. It would lead to a suspicion that events, which have unfortunately been produced, were the very events intended to be produced. At any rate, there is a want of that delicate sensibility, of that prudent 'attention, of that honest caution, which belong to the character of a husband. A Court of Justice is not the first place in which that sensibility should be shown.

The verdict has been little alluded to; and I only observe, the rate of damages given by the Court cannot be accounted for, on the common grounds on which very small damages are sometimes given: They are given here for the stigmatizing purpose-to establish the fact, but to establish the fact to be no injury to the individual who presumes to complain of it.

The case will probably travel to places where it will receive decisions from superior authorities, possessing superior lights. It is my duty to form my present judgment upon my own view of the case, and certainly not without an anticipation, that the same view will be entertained of it by all who may have occasion to consider it hereafter. If I am mistaken in that, it will become my duty to conclude that I have formed an erroneous judgment fupon its real merits. But I have the satisfaction of thinking that I pronounce at least an honest judgment, in declaring, that this party had no right to institute this suit, and that his wife is dismissed from all further attendance in this Court.

In this case an appeal was prosecuted to the Court of Arches, in which two further allegations were admitted on the part of the husband. An appeal was afterwards interposed on the part of the wife from an

interlocutory order of that Court, to the Court of Delegates, in which a further allegation on her part was admitted. On the final hearing, 6th July 1797, the wife was dismissed from the original citation, and all further observance of justice.

The DUKE of PORTLAND v. BINGHAM.-p. 157.

Licence to preach in Quebec chapel in Mary-le-bone, not allowed to be impeached, by proceedings on the part of the Impropriator, in a civil suit-he not showing an interest that would entitle him to maintain such a suit.

The Office of the Judge promoted by

HUTCHINS v. DENZILOE and LOVELAND.—p. 170.

Proceedings against a Churchwarden, for interfering to obstruct and prohibit the form of singing, &c. which had been authorized by the Minister, sustained. Question of practice.-Whether on a citation to appear on a day fixed, and receive articles, &c. the person is entitled to demand that the articles shall be delivered on the first Court-day, or that otherwise he should be dismissed.-Not so held.

The Office of the Judge promoted by

HUTCHINGS v. DENZILOE.—p. 181.

Proceedings under the stat. 5, 6 Edw. 6. ch. 4. s. 1. [for quarrelling, chiding, or brawling,] must be supported by two witnesses on the specific charge.--Dismissed.

PRITCHARD v. DALBY.-p. 186.

Misnomer-how considered.-Averment of the party, as to his true name, required, and binding on him.

THIS was a question of practice, as to the effect of a misnomer, and the effect of the averment of the party, as to his true name.

In this case, a citation had issued against Sarah Dalby, in a suit of defamation, on which an appearance was given under protest, alleging her true name to be Dolby. The usual assignation was made, that the objection should be argued, on petition of both Proctors, the following Court. But, on the next Court-day, after the cause had been further continued, during the sitting of the Court, the Proctor for Mrs. Dalby alleged the name of the person cited to be Sarah Austin, and prayed to be dismissed. In reply to this averment, it was argued, that on an objection of misnomer, the party must plead the true name, and will be held by that allegation; and cases were cited, in which that rule had been held strictly at common law. (a) On the other side it was said, that the Court would relieve the party from the mistake of his Proctor, in any

(a) The Queen v. Stedman, 2d Lord Raymond, p. 1307.