Seduction. - Adultery. - Breach of promise of Marriage.
Charles Maxwell v. James Montgomery
Date: 7 March 1787 Case No. No 13.
An action of damages on the head of adultery can be instituted by a husband against the adulterer, without a process of divorce being brought against the wife. See Paterson against Bone, infrę.
Click here to view a pdf copy of this documet : PDF Copy
Maxwell, without bringing a process of divorce, having instituted against Montgomery an action of damages, on account of the latter's having corrupted the wife of the former,
The defender pleaded; In hoc statu, the action is not competent. By the Roman law, during its better periods, and downward to the innovations of Justinian, no husband, while acquiescing in his married state, by declining a divorce, could bring any action on the ground of his wife's adultery, either against herself, or against the adulterer. To that enlightened people such a conduct seemed to betray the purpose of committing lenocinium, l. 11. § 10. l. 29. D. Ad leg. Jul. de Adult.; l. 11. Cod. cod. tit. Neither is there to be found any instance in which our law has given its sanction to the contrary doctrine.
Answered; There is no injury surely which affords a better title for an action of damages than that in question. And there are obvious situation in which it would not be for the interest of the injured husband, or of his family, to institute a process of divorce. But it would be most unjust, that the husband, on this account, should be forfeited of so strong a right of action. In England, such actions of damages are perfectly well established, without either separation a mensa et thoro, or divorce Blackstone, B. 3. chap. 8.
The cause was reported by the Lord Ordinary; when
The Court found the action competent.
Reporter, Lord Swinton.Act. Wight.Alt. C. Hay.Clerk, Home.
Fol. Dic. v. 4. p. 227. No 328. p. 503.
