for the support of the plaintiff's wife at his (the defendant's) house, the wife goes there under the agreement, and the defendant seduces her. The act is a breach of duty to the plaintiff, for which the defendant is liable.1

The mere fact of the husband's infidelity to his wife does not change the nature of the defendant's act in seducing and debauching her; though it may possibly, in contemplation of law, affect its enormity. For example: The defendant seduces and has criminal intercourse with the plaintiff's wife. Proof is offered by the defendant that the plaintiff had shown the greatest indifference and want of affection towards his wife; that while she lay dangerously ill at Y, the plaintiff (a surgeon in the navy), though his vessel was at Y, and he landed almost daily, was often at the door of the house where his wife lay sick, without visiting her, or showing any anxiety or concern for her; and at the same time that he had been guilty of adultery and had contracted a venereal disease This is no defence to the action; 2 though it might be considered in mitigation of damages. 3

4

If, however, the husband was accessory to his own dishonor, the case is different; he could not complain of an injury to which he had consented. For example: The plaintiff allows his wife to live as a prostitute, and the defendant then has intercourse with her. This is no breach of duty to the plaintiff.5

1 See Chambers v. Caulfield, 6 East, 244. Weedon v. Timbrell has been limited to this extent. See further Barbee v. Armstead, 10 Ired. 530.

2 Bromley v. Wallace, 4 Esp. 237, overruling Wyndham v. Wycombe, Id. 16.

8 Id.; Rea v. Tucker, 51 Ill. 110.

4 Volenti non fit injuria.'

5 See Cibber v. Sloper, cited 4 T. R. 655; Hodges v. Windham, Peake, 39; Sanborn v. Neilson, 4 N. H. 501.

Mere negligence as to the wife's behavior, inattention, or dulness of apprehension, or even permission of indecent familiarity in the husband's presence, are, however, deemed insufficient to bar a recovery for criminal conversation with the wife; though such facts might be proved in reduction of damages. Unless the conduct of the husband amount to consent to the defendant's act of intercourse, the defendant is liable.1

It follows from what has been said that condonation of the wife's offence does not excuse the man who debauched her; the sole consequence of the condonation is to preclude the husband from obtaining a divorce. For example: The defendant has criminal intercourse with the plaintiff's wife, and, when fatally sick, she discloses the fact to her husband. The plaintiff continues to care for her kindly until her death. The defendant is liable.2

1 2 Greenleaf, Evidence, §§ 51, 56; L. C. Torts, 338.

2 Wilton v. Webster, 7 Car. & P. 198; Bernstein v. Bernstein, 1892, 2 Q. B. 375; Powers v. Powers, 10 P. D. 174.

CHAPTER IX.

TRESPASSES UPON PROPERTY.

§ 1. INTRODUCTORY.

Statement of the duty. A owes to B the duty (1) to forbear to enter B's close without permission; (2) to forbear to take or interfere with possession of B's chattels, without permission; unless, in either case, A has a better right than B to the possession of the property.

1. The term 'close' signifies a tract of land, whether physically enclosed or not.

2. Breaking and entering the close' is an ancient term of the law, now nearly gone out of use, indicating an unlawful entry upon land. The term 'entry' or ' unlawful entry' will be used in the present chapter as synonymous with 'breaking and entering.'

3. A trespass to land is an unlawful entry upon land; a trespass to goods is an unlawful taking or interfering with the possession of goods. All other wrongful acts connected with the trespass are aggravation of the trespass.

§ 2. OF POSSESSION.

In order to maintain an action solely for damages for a trespass to land, and not merely for the recovery of the land, it is necessary, apart from statute, for the plaintiff to

have had possession of the premises entered at the time of the entry. A person who enters the land of another without the latter's permission, the latter having before been unlawfully deprived of possession or the land having never been in his possession, may, indeed, violate a duty to the person entitled to the possession; but the common law requires the latter to get possession of the land before giving him damages for the wrong committed. By statute, the owner may sue for possession and damaages in one action.1

If, however, the party had possession at the time of the entry, and the trespasser ejected him, it would not be necessary for him to recover possession before he could sue for damages for the wrongful entry and expulsion; he had possession at the time of the trespass and disseisin, and that is sufficient for the purposes of such an action.2 He could not, however, recover damages for the loss sustained by reason of the disseisor's occupancy, until after a re-entry, or suit for recovery of possession,

3

be further considered hereafter.

a point to

On the other hand, possession at the time of the entry, if held under a claim of right, is prima facie sufficient in all cases to enable a person to maintain an action for an entry upon the land without his permission; and possession alone is not only prima facie but absolutely sufficient against all persons who have not a better right than the possessor. It follows that one who is in possession of land under a claim of title, though without right, may re

1 In some States, if the owner sue for possession, he must claim his damages in the same action, or he will be barred of the right to recover them. Raymond v. Andrews, 6 Cush. 265. See Leland v. Tousey, 6 Hill, 328. If possession, however, is obtained without suit, an action for damages is maintainable. Leland v. Tousey, supra.

2 Case v. Shepherd, 2 Johns. Cas. 27.

• Cotenancy makes an exception. See post, p. 214.

8 Id.

cover for an entry by a wrongdoer; that is, by one who enters without a right to do so. For example: The defendant enters without permission upon land in the possession of the plaintiff, whose possession is under a void lease. The defendant is liable.1

But as above implied, the defendant is not necessarily guilty of breach of duty to such a possessor by reason of the fact that he (defendant) does not own the land. He may still have a legal or an equitable interest in the premises; he may be a lessee of the land, or he may be a trustee of the same or the latter's cestui que trust. In any of these cases, he would be entitled to enter upon the premises, if he could do so without breaking the peace. Indeed a licensee may make a peaceable entry against a wrongdoer, though a licensee has no interest whatever in the soil, and could have no entry against a person entitled to the possession. For example: The defendant enters, without permission of the plaintiff, premises of which the plaintiff is wrongfully in possession; the act being done by direction of the owner of the land, who is entitled to possession. The defendant violates no duty to the plaintiff; 2 though the case would have been different had he entered without authority of the owner.3

If there be two persons in a close, each asserting that the premises are his, and each doing some act in the assertion of the right of possession, he who has the better title or right is considered as being in possession; and the other is a trespasser. The former is therefore in a posi

1 Graham v. Peat, 1 East, 244. Any possession is a legal possession against a wrongdoer.' Lord Kenyon. See Cutts v. Spring, 15 Mass. 135; s. c. L. C. Torts, 341.

2 Chambers v. Donaldson, 11 East, 65.

8 The subject of rights of entry in general will be considered hereafter, § 3. It is introduced here merely to show the consequences of possession.

See Reading v. Royston, 2 Salk. 423.