The opinion of the Court was delivered by
Rogers, ,T.
The gravumen of the action is the enticing away the plaintiff’s wife. There was no direct and positive proof of any combination between the defendants for the purpose, but the jury was asked to infer their participation in her abduction, from their acts, declarations and conduct before, at the time, and after her departure from the dwelling of her husband. To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove by her attending physician, that about ten days before Mrs Bale left her husband,she complained that he had treated her badly; that she showed marks on her arms which she said she had received from bis beating her; and asked him what she should do. That he advised her to go to her father’s and leave her husband. This evidence was offered in connection with proof that Bale treated her kindly as long as he thought he could, by that means, prevail upon her to deliver up a certain bond for 1000 dollars, which the defendant Gilchrist had given to her.
[357] The evidence was very pertinent; for if Mrs Bale left her husband in consequence of ill treatment, it was an answer to the plaintiff’s action. The material part of the testimony was the advice of the witness that she should leave her husband. The, residue of the offer explains the reasons which induced him to givé this advice, and were evidence in explanation. The witness saw the marks on her arm, and was informed by her, at the time, that they arose from the ill treatment of her husband. If I am correct; the latter part of the offer was unconnected with information derived from Mrs Bale, and in that view was undoubtedly evidence, as it tended to show the motives which governed the wife in leaving the protection of her husband. It is said that this may have been a contrivance between the wife and the defendants, and it may have been so; but the court would not be justified in excluding testimony from a jury, on the ground of suspicion that there may have been unfair and improper conduct. Of this, the jury are the best judges; such matters go to the credit rather than the competency of testimony. It is a general rule that the declarations of a husband or a wife cannot be received in evidence against each other, either civilly or criminally. But this rule cannot be extended to all possible cases; for where no confidence has been violated, the law .has admitted of some exceptions. Thus in Aveson v. Lord Kennard, 6 East 18S, in an action by the husband on á policy of insurance on the life of his wife, declarations by the wife, made by her when lying in bed, apparently ill, stating the bad state of her health, &c., and her apprehensions that she could not live ten days longer, by which time the policy was to be returned, are admissible in evidence to show her own opinion of the ill state of her health at the time of effecting the policy. In the argument, it was stated by the counsel, that the declarations by the wife upon her elopement from her husband, accusing him of misconduct, could not be given in evidence against him in an action against the adulterer. To this Lord Ellenborongh replied: “ It is not so clear that her declarations, made at the time, would not be evidence under any circumstances. If she declared at the time that she fled from immediate terror of personal violence from her husband, I should admit thé evidence, though not if it were a collateral declaration of some matter which happened at another time.” For the same case, in illustration, his lordship referred to Thompson and Wife v. Freeman, Skinner 402, where, in an action by the husband and wife for wounding the wife, Lord C. J. Holt, allowed what the wife said immediately upon the injury received, and before she had time to devise any thing for her own advantage, to be given in evidence as part of the res gestu. The motives which induced Mrs Bale to desert her husband, are the matters in controversy; and his conduct about that time has a material bearing on the issue. The defendants allege that she left him, not for the cause assigned in the declaration, but because of his wicked and brutal conduct. This, [358] in most cases, cannot be shown, except by her declarations made at the time to her relations and friends. Few persons are so lost to every sense of propriety as to act thus in public. The treatment of which she has most reason to complain, is usually acted in secret, and can only be known from her complaints, or, as here, from marks of violence on her person. When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is part of the res gesta. It was necessary to explain the reason the witness advised her to leave her husband, and for this purpose her complaints of ill treatment, with the marks of violence on her person, were competent testimony. When the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus in an action for necessaries supplied to the wife, the defence being that her husband had turned her out of doors for adultery, her declarations as to her adultery, made previously to her expulsion, were admitted. Abbot, C. J., 1 C. & P. 621.
The defendants also complain of the rejection of the record of the action of trespass, vi et armis, for criminal connection with the plaintiff’s wife.
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The opinion of the Court was delivered by
Rogers, ,T.
The gravumen of the action is the enticing away the plaintiff’s wife. There was no direct and positive proof of any combination between the defendants for the purpose, but the jury was asked to infer their participation in her abduction, from their acts, declarations and conduct before, at the time, and after her departure from the dwelling of her husband. To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove by her attending physician, that about ten days before Mrs Bale left her husband,she complained that he had treated her badly; that she showed marks on her arms which she said she had received from bis beating her; and asked him what she should do. That he advised her to go to her father’s and leave her husband. This evidence was offered in connection with proof that Bale treated her kindly as long as he thought he could, by that means, prevail upon her to deliver up a certain bond for 1000 dollars, which the defendant Gilchrist had given to her.
[357] The evidence was very pertinent; for if Mrs Bale left her husband in consequence of ill treatment, it was an answer to the plaintiff’s action. The material part of the testimony was the advice of the witness that she should leave her husband. The, residue of the offer explains the reasons which induced him to givé this advice, and were evidence in explanation. The witness saw the marks on her arm, and was informed by her, at the time, that they arose from the ill treatment of her husband. If I am correct; the latter part of the offer was unconnected with information derived from Mrs Bale, and in that view was undoubtedly evidence, as it tended to show the motives which governed the wife in leaving the protection of her husband. It is said that this may have been a contrivance between the wife and the defendants, and it may have been so; but the court would not be justified in excluding testimony from a jury, on the ground of suspicion that there may have been unfair and improper conduct. Of this, the jury are the best judges; such matters go to the credit rather than the competency of testimony. It is a general rule that the declarations of a husband or a wife cannot be received in evidence against each other, either civilly or criminally. But this rule cannot be extended to all possible cases; for where no confidence has been violated, the law .has admitted of some exceptions. Thus in Aveson v. Lord Kennard, 6 East 18S, in an action by the husband on á policy of insurance on the life of his wife, declarations by the wife, made by her when lying in bed, apparently ill, stating the bad state of her health, &c., and her apprehensions that she could not live ten days longer, by which time the policy was to be returned, are admissible in evidence to show her own opinion of the ill state of her health at the time of effecting the policy. In the argument, it was stated by the counsel, that the declarations by the wife upon her elopement from her husband, accusing him of misconduct, could not be given in evidence against him in an action against the adulterer. To this Lord Ellenborongh replied: “ It is not so clear that her declarations, made at the time, would not be evidence under any circumstances. If she declared at the time that she fled from immediate terror of personal violence from her husband, I should admit thé evidence, though not if it were a collateral declaration of some matter which happened at another time.” For the same case, in illustration, his lordship referred to Thompson and Wife v. Freeman, Skinner 402, where, in an action by the husband and wife for wounding the wife, Lord C. J. Holt, allowed what the wife said immediately upon the injury received, and before she had time to devise any thing for her own advantage, to be given in evidence as part of the res gestu. The motives which induced Mrs Bale to desert her husband, are the matters in controversy; and his conduct about that time has a material bearing on the issue. The defendants allege that she left him, not for the cause assigned in the declaration, but because of his wicked and brutal conduct. This, [358] in most cases, cannot be shown, except by her declarations made at the time to her relations and friends. Few persons are so lost to every sense of propriety as to act thus in public. The treatment of which she has most reason to complain, is usually acted in secret, and can only be known from her complaints, or, as here, from marks of violence on her person. When an act is done to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is part of the res gesta. It was necessary to explain the reason the witness advised her to leave her husband, and for this purpose her complaints of ill treatment, with the marks of violence on her person, were competent testimony. When the conduct of the wife is in question, her declarations have been held admissible for her husband in an action against him. Thus in an action for necessaries supplied to the wife, the defence being that her husband had turned her out of doors for adultery, her declarations as to her adultery, made previously to her expulsion, were admitted. Abbot, C. J., 1 C. & P. 621.
The defendants also complain of the rejection of the record of the action of trespass, vi et armis, for criminal connection with the plaintiff’s wife.
This is an action on the case, and a difference is taken between such actions and actions in tort, which are stricti juris. A former recovery, release or satisfaction cannot be given in evidence in an action for tort, on the general issue, but must be pleaded; but an action on the case is founded on the mere justice and conscience of the plaintiff’s case, and is in the nature of a bill in equity, and therefore a former recovery, release or satisfaction need not be pleaded, but may be given in evidence under the general issue. For whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff’s recovery, may, in this action, be given in evidence by the defendant: because the plaintiff must recover upon the justice and conscience of his case, and upon that only. Bird v. Randall, 3 Burr. 1353; 1 Wils 45; Thillhaffer v. Herr, 17 Serg. & Rawle 319. There is, therefore, no reasonable doubt, on authority, that the evidence was admissible on the pleading, if in other respects unexceptionable. The actions were brought on the same day, covered the same space of time, and the question is, whether they are not, in substance, for the same injury. A former recovery is no bar, unless it be for the same injury, but where the plaintiff has received a full satisfaction, for the same cause, he cannot recover a second time. And this does not depend on the form of the suit; for the inquiry in every case is, whether the former recovery or satisfaction was for the same thing, or whether the grounds of controversy in the two actions are the same. Thus, when a person takes the personal property of another, and sells it, the owner may elect either of four remedies, trespass, replevin, trover, or an action on the case, for money had and received, but a [359] recovery in one, may be pleaded in bar to another action, although differing in form, for the same injury. When A enters the close of B, cuts down his timber, and takes and carries it away, as in Cochran and Wife v. Castlere, Co. E. 96, the plaintiff may bring trespass quart clausum fregit, and recover for the trespass in entering the close, and also for the value of the timber under improvement. But such a recovery would be a bar to an action of replevin, trover, and to an action on the case, for the value of the timber. No person can recover a double satisfaction for the same injury, and nemo debet bis vexari pro eadem causa. Whether a recovery for the value of articles would be a bar to an action for breaking the close merely, it is not necessary to decide, and is not so clear.
For what injury did the plaintiff recover, in the action of trespass? or, what is the same thing, as was ruled in Hess v. Heeble, 6 Serg. & Rawle, what might he have recovered? In the first action the plaintiff’ does not declare for the criminal conversation alone, but he also demands damages for depriving him of the comfort and society of his wife, during the whole time laid in the present action. He elects to consider the whole as one offence, and it can not be questioned that he did or might have recovered, in the first suit, for all the injury he received from the defendant, including not only the criminal intercourse with her, but also compensation for her desertion at the solicitation of the defendant, and thereby depriving him, in the language of the declaration, of her aid, comfort and assistance. Gavin v. Dawson, 13 Serg. & Rawle 246, was decided on this principle. Gavin brought two suits against Dawson—one on the act of the 21st of March 1772, to recover double the value of his goods wrongfully distrained by the defendant, and the other, an action on the case at common law, for the same cause, and alleging his complaint in the same words. The defendant arbitrated both, and report was made in both, that the plaintiff had no cause of action. The plaintiff appealed from the decision in the case to recover double damages on the statute, but did not appeal from the action at common law, where judgment remained in full force. The court held that the plaintiff was barred, and a plea puis darrein continuance was held good. In the case at bar, for the same thing, the plaintiff will recover a double satisfaction for the same injury, and the defendant will be punished twice for the same offence. There was error in rejecting the record of the former recovery.
But it is said the declaration is bad, because no request by the plaintiff to the defendant, to deliver up the wife, and refusal by the defendant, are laid. This objection is made on the authority of a dictum of Chief Justice Wilmot, in Winsmore v. Greenland, 1 Wittes 582. But the remark is made in reference to the third count of the declaration, but does not touch the count for enticing her away. “ It is not necessary,” says the Chief Justice, “ to determine, in this case, whether a request and refusal are necessary, [360] because both ave expressly laid here; but according to my present thoughts, in the case of a detainer, I think them necessary.” But however this may be restricted to a suit for detaining the wife, yet it does not apply to an action for enticing her away; for if it is necessary to aver a request and refusal, it would be necessary to prove them. But it will hardly be pretended that a person could screen himself from punishment for such a wrong, by consenting (after the injury, which consists of the illegal and improper act of inducing her to desert her duty) to deliver up the wife on request. But this would be the consequence of holding that a request and refusal were necessary.
In other respects we perceive no error in the record.
Judgment reversed, and a venire de novo awarded.