Buys v. Gillespie

Kent, Ch. J.

delivered the opinion of the court. This is a motion in arrest of judgment. The suit was for chargipg the plaintiff’s wife with adultery ; but no special damages were laid, and the question is, whether words to that effect be of themselves actionable.

It is very clear that they are- not actionable by the English law. All the cases of actions for that species of defamation arise either upon the custom of the city of London, where lewdness in a woman exposes her to cor_ poral punishment, or by reason of special damages specifically laid. During the time of the English commonwealth, when fornication and adultery were made crimes cognizable by the civil magistrate, it was indeed held, (Hard. 107.) that calling a woman a whore was actionable ; but after the restoration, the new ordinances were abrogated, and the former decisions revived. (4 Co. 16.1 Roll. Abr. 34. pl. 45. Sty. 352. 1 Roll. Abr. 36. pl. 40. 1 Lev. 134. Comb. 391. 2 Ld. Raym. 1004.) The only point. before us then is, whether our statute relative to di~ *117 vorces has, in respect to this action, made any new rule of law applicable. If it has not, we can only say with Lord Holt, (5 Mod. 104. 392.) t¡lat « SUCh words are a great scandal, and'for which, if we could, we would encourage an action, but the law has ordained otherwise.”

An adulteress is liable to be prosecuted in chancery by her, husband, and upon proof of the fact of adultery, the chancellor is directed to dissolve the marriage, and make such allowance to the wife as he shall deem proper; and the party convicted of adultery is prohibited to re-mariy, and every such re-marriage is declared void. (Laws of New-York, vol. 1. p. 93.)

This is the only notice that our law takes of the sin pf adultery.

In England, adultery is a cause of divorce only, c mensa et thoro. By this qualified divorce, the wife does not lose her dower, but neither party can re-marry; and the wife, although entitled in the spiritual court to alimony, is not entitled to administration on her husband’s estate, nor will chancery decree her a distributive share. (Prec. in Chan. 111. 3 Salk. 138. Bacon, tit. Dower, c.1.)

The only essential difference then between the punishment of adultery in England and in this state is, that here it is punished by an absolute divorce, and consequently, on the part of the wife, with the loss of her dower. But the loss of dower ought, in my opinion, to be specially stated in the declaration ; for it does not necessarily follow, that the husband was seized of any estate whereof the wife could be endowed. Whether this special averment of loss would be sufficient, it is unnecessary to say; but certainly we cannot otherwise .take notice of this particular damage. In the case of Humphries v. Strutfield, (1 Roll. Abr. 39. 1. 5.) it was held, that to call the plaintiff a bastard was actionable, because of the temporal damage ; but there was an averment, that the plaintiff was heir apparent, and that his father was seized *118 of lands, and by reason of the words intended to disinhe-l’it him. Though there is some confusion in the cases, and dicta on this point, the better opinion undoubtedly is, that.to call the son and heir apparent abastardas not actionable without assigning special damages. (Nelson v. Staff, Cro. J. 422. 1 Vin. 396. pl. 18. 2 Vent. 26. 28.) In the case of Randal and Beal, (1 Roll.Abr. 34. pl. 45.) it was held, that the averment of the danger of a divorce was not any temporal loss. The temporal damage arising from the loss of the right of dower, is too remote and contingent, unless it appear affirmatively, that the husband was seized of an estate of inheritance. It is not enough for a single woman to aver generally a loss of marriage; but she must state some'particlar marriage which she has lost by means of the slander. (Hunt v. Jones, Cro. J. 499.) As to the other inconvenience resulting from the conviction of adultery, they seem to be as great in England as with us ; yet the charge is not of itself actionable. I have not thought it necessary to consider the act (Laws of N. Y. vol. 1. p. 123.) which adjudges common prostitutes to imprisonment, as disorderly persons, because the words used in the present case did not go to-charge the plaintiff’s wife with that offence. The judgment must therefore be arrested.

Judgment arrested.