the latter would then have the advantage of it; for where both are equally in fault, "potior est conditio defendentis." . . .

695. BROMLEY v. WALLACE

COMMON PLEAS. 1803

4 Esp. 237

THIS was an action for criminal conversation with the plaintiff's wife. Plea of not guilty. The plaintiff and defendant were both surgeons in the navy. The plaintiff proved his marriage, and the seduction of his wife; and there rested his case.

Lens, Serjt., for the defendant, stated his defence to be, that the plaintiff had so conducted himself towards his wife, that he was not entitled to any damages, or perhaps to be nonsuited: That the action was founded on the injury which the plaintiff sustained from the loss of the society and comfort of his wife: That here the plaintiff had sustained no such loss, as he had shown the greatest indifference and want of affection to her: That, in proof of this, he should shew, that while she lay dangerously ill at Yarmouth for five weeks, and the ship to which he belonged lay in Yarmouth Roads, he landed almost daily from the ship, and was at the door where his wife was then confined, without visiting her, or shewing any manner of concern, anxiety, or regard for her: That during the same time he contracted the venereal distemper; and lastly, That during his wife's illness, he had misconducted himself with the maid-servant of his family. Of these facts he gave some evidence; but not to the extent stated in his opening.

Lord ALVANLEY, in summing up to the jury, said, That what the defendant's counsel had stated, went to the damages only: That he was aware, the late Lord KENYON had laid down a different doctrine;1 and had held that such evidence went to the ground of the action itself. He [Lord ALVANLEY] thought differently. He was of opinion, that the infidelity or misconduct of the husband could never be set up as a legal defence to the adultery of the wife; that alone which struck him as furnishing any defence was, where the husband was accessary to his own dishonor; he could not then complain of an injury which he had brought on himself, and had consented to; but that the wife had been injured by the husband's misconduct, could not warrant her in injuring him in that way, which was the keenest of all injuries. He therefore directed the jury to consider the evidence as going in mitigation of the damages only, and not as furnishing an answer to the action, or as entitling the defendant to a verdict.

Verdict £200 damages.

Shepherd, Serjt., and Marryatt for the plaintiff.
Lens, Serjt., and

for the defendant.

1 [In Wyndham v. Wycombe, 4 Esp. 16. — Ed.]

696. JAMES BOSWELL. Life of Samuel Johnson, LL.D. (1791, ed. Dent, vol. I, p. 19.) I repeated to him [Johnson] an argument of a lady of my acquaintance who maintained, that her husband's having been guilty of numberless infidelities, released her from conjugal obligations, because they were reciprocal. Johnson. "This is miserable stuff, Sir. To the contract of marriage, besides the man and wife, there is a third party - Society; and if it be considered as a vow God; and, therefore, it cannot be dissolved by their consent alone. Laws are not made for particular cases, but for men in general. A woman may be unhappy with her husband; but she cannot be freed from him without the approbation of the civil and ecclesiastical power. A man may be unhappy, because he is not so rich as another; but he is not to seize upon another's property with his own hand." Boswell. "But, Sir, this lady does not want that the contract should be dissolved; she only argues that she may indulge herself in gallantries with equal freedom as her husband does, provided she takes care not to introduce a spurious issue into his family. You know, Sir, what Macrobius has told of Julia." 1 Johnson. "This lady of yours, Sir, I think, is very fit for a brothel."

697. WILLIAM MAKEPEACE THACKERAY. (Ballads, Nelson ed., p. 576.).

Damages, Two Hundred Pounds.

Special Jurymen of England! who admire your country's laws,
And proclaim a British jury worthy of the realm's applause,
Gaily compliment each other at the issue of a cause

Which was tried at Guildford 'sizes, this day week as ever was.

Unto that august tribunal comes a gentleman in grief
(Special was the British Jury, and the Judge the Baron Chief)
Comes a British man and husband, asking of the law relief,
For his wife was stolen from him; he 'd have vengeance on the thief.
Yes, his wife, the blessed treasure with the which his life was crowned,
Wickedly was ravished from him by a hypocrite profound;

And he comes before twelve Britons, men for sense and truth renowned,
To award him for his damage, twenty hundred sterling pound.

He by counsel and attorney there at Guildford does appear,
Asking damage of the villain who seduced his lady dear.

But I can't help asking, though the lady's guilt was all too clear,
And though guilty the defendant, was n't the plaintiff rather queer?
First the lady's mother spoke, and said she 'd seen her daughter cry
But a fortnight after marriage - early times for piping eye.
Six months after, things were worse, and the piping eye was black,
And this gallant British husband caned his wife upon the back.

Three months after they were married, husband pushed her to the door,
Told her to be off and leave him, for he wanted her no more.
As she would not go, why he went thrice he left his lady dear;
Left her too, without a penny, for more than a quarter of a year.

Sarah Green, another witness, clear did to the jury note
How she saw this honest fellow seize his lady by the throat;
How he cursed her and abused her, beating her into a fit,

...

Till the pitying next-door neighbours crossed the wall and witnessed it. . . .

1 "Nunquam enim nisi plena tollo vectorem." - Lib. ii. c. vi.

POLLOCK, C. B., charged the Jury; said the woman's guilt was clear.
That was not the point, however, which the Jury came to hear;
But the damage to determine which, as it should true appear,
This most tender-hearted husband, who so used his lady dear -

Beat her, kicked her, caned her, cursed her, left her starving, year by year, Flung her from him, parted from her, wrung her neck, and boxed her ear What the reasonable damage this afflicted man could claim,

By the loss of the affections of this guilty, graceless dame?

Then the honest British Twelve, to each other turning round,
Laid their clever heads together with a wisdom most profound;
And towards his lordship looking, spoke the foreman wise and sound
"My Lord, we find for this here plaintiff, damages two hundred pound.”

So, God bless the Special Jury, pride and joy of English ground;
And the happy land of England, where true justice does abound!
British jurymen and husbands, let us hail this verdict proper:
If a British wife offends you, Britons, you 've a right to whop her.

Though you promised to protect her, though you promised to defend her,
You are welcome to neglect her; to the devil you may send her;
You may strike her, curse, abuse her so declares our law renowned
And if after this you lose her, why you 're paid two hundred pound.

THIS was an action for a libel published in a periodical work, called "The Satirist, or Monthly Meteor," which stated (amongst other things) that the plaintiff, being prosecuted by the Attorney-General, had fled the country, that he might save himself from the pillory. . .

Shepherd, Serjeant, for the defendant, proposed to prove, by way of complete answer to the action, that the plaintiff had proposed, as a question for discussion in a public debating society, of which he was manager, "Whether [the defendant] the editor of the Satirist, or a notorious pickpocket, was the greater nuisance to society;" that he had caused boards, with the question printed upon them in large characters, to be carried through the streets; and that when the ques

tion came in, he took an active part in the debate, giving the decided preference to the pickpocket. These facts, it was contended, on the authority of Anthony Pasquin's case, before Lord KENYON,' would entitle the defendant to a verdict.

Sir JAMES MANSFIELD. I cannot go so far as Lord KENYON is stated to have done. The decision of that case, I rather think, was incorrect in point of form, though it was correct in point of justice. If a man is in the habit of libelling others, he complains with a very bad grace of being libelled himself, and he cannot be supposed to suffer much injury from this source. But I cannot say that he suffers none, or that he loses his right to maintain any such action. The evidence opened does not amount to an absolute defence in law, but will be most essential with respect to the damages. If two men are concerned in publishing monstrous libels against each other every day, there can be no claim to damages on either side.

Verdict for the plaintiff. Damages, 18.

Best, Serjeant, Clifford, and Adolphus, for the plaintiff.
Shepherd, Vaughan, and Manley, Serjeants, for the defendant.

700. STOCKDALE v. ONWHYN

QUEEN'S BENCH. 1826

5 B. & C. 173

CASE, for publishing and exposing to sale, and selling, without the consent of the plaintiff, divers, to wit, 5000 copies of a certain work called the Memoirs of Harriette Wilson, copied from a book which the plaintiff had printed, and of which he was the first publisher. Plea, not guilty. At the trial before ABBOTT, C. J., at the Westminster sittings after last Michaelmas term, it appeared that the work in question professed to be a history of the amours of a courtezan, that some parts of it were libellous upon individuals, and other parts very licentious. The Lord Chief Justice was of opinion that such a work was not entitled to the protection of the law, and directed a nonsuit; and now,

Brougham moved for a rule nisi for a new trial. The doctrine that a publisher can have no property in such a work as that which the defendant is alleged to have pirated, rests entirely upon the dictum of EYRE, C. J., in a case tried before him at Warwick. In Walcot v. Walker (7 Ves. jun. 1), and Southey v. Sherwood (2 Mer. 435), Lord

1 Action for libel in criticising the plaintiff's published writings. When it appeared that the plaintiff's writings were themselves of a libellous and scandalous nature, Lord Kenyon threw his parchment at his head, and dismissed him with infamy." (Anthony Pasquin's Case, cited in 1 Camp. 351.)

ELDON relied upon it, when he refused to grant an injunction to restrain the sale of copies of what he considered immoral works. The cases in equity cannot weigh much against the present claim, they leave the question of law quite where it was before; for it is one thing to refuse the special protection of an injunction, and another to say that there can be no property in the book. . .

ABBOTT, C. J. This was an action brought for the purpose of recovering a compensation in damages for the loss alleged to have been sustained by the publication of a copy of a book which had been first published by the plaintiff. At the trial it was in proof that the work professed to be a history of the amours of a courtezan, that it contained in some parts matter highly indecent, and in others matter of a slanderous nature upon persons named in the work. The question then is, whether the first publisher can claim a compensation in damages for a loss sustained by an injury done to the sale of such a work. In order to establish such a claim, he must, in the first place, shew a right to sell; for if he has not that right, he cannot sustain any loss by an injury to the sale. Now I am certain no lawyer can say that the sale of each copy of this work is not an offence against the law. How then can we hold that by the first publication of such a work, a right of action can be given against any person who afterwards publishes it? . . .

HOLROYD, J. The ground of action upon which the plaintiff proceeds, is an alleged injury to his supposed right of publication. But I am at a loss to know how any such injury can be sustained, if the work be such that he has no right to publish it. . .

Rule refused.

701. LEATHER CLOTH COMPANY LIMITED v. AMERICAN LEATHER CLOTH COMPANY LIMITED

CHANCERY COURT. 1863

4 De G., J. & S. 137

THIS was an appeal by the defendants from a decree made by the Vice-Chancellor WooD upon the hearing of the cause, whereby His Honour granted, with costs, a perpetual injunction, restraining them from selling or exposing for sale or procuring to be sold any leather cloth or any fabric or article similar thereto having affixed thereon such stamp or trade mark with the name L. R. & C. P. Crockett, or in the name of Crockett & Co., introduced thereon in such manner as by colourable imitation, or otherwise, to represent the fabric or article manufactured or sold by the appellants as being the same fabric or article as that manufactured and sold by the respondents, the plaintiffs in the suit, or as being the fabric or article known as Crockett's leather cloth. . . The facts . . . sufficiently appear from the Lord Chancellor's judgment....