Fry v. Drestler

2 Yeates 278

Opinion

Per cur.

The law is perfectly clear, that where husband and wife live in a state of separation, an action for criminal conversation cannot be maintained. 5 Term Rep. 357. Espin. Ni. Pri. 16. Though the defendant may be punished by indictment for the offence, yet he is not amenable to the plaintiff in damages for depriving him of the society of his wife, whom he had before parted with, with his full consent. The case before us under all its circumstances requires re-examination, and therefore on payment of costs,

New trial awarded.

This action came on again to be tried, before shippen and Yeates Justices, at Lancaster, on the 13th April 1798, when some fresh evidence was given, and the point was submitted to the jury, whether the consent to separation on the part of the plaintiff, was voluntary or constrained. If they were not satisfied of his consent, they were instructed to find discreet and temperate damages, proportioned to the injury sustained, under all the circumstances of the case. The jury found for the plaintiff 150Z. damages.