case RIGAUT against GALLISARD Trinity term whether roll the spiritual court  can take cognizance of solicitation of chastity if the offence be accompany  with such force as will maintain a action of assault and battery at commonlaw  SC holt SC salk SC ld ray declaration upon a prohibition that at the session  of the peace hold at Westminster such a day and year of king William the three  the plaintiff be indict modern er p for make a assault upon one Louise Rigaut  the defendant wife with intent to have a carnal knowledge of her and it be lie  to be against the peace of the late king c and that likewise the now defendant  bring a action of assault and battery against he in Trinity term in the twelve  year of the late king which be likewise lie to be contra peace which suit be  still depend and yet the say defendant have order he to be sue in the bishop  of London court for solicitation of the say Louise Rigauts chastity to commit  adultery with he modern the defendant plead for a consultation that he be not  charge below for any of the crime charge in the indictment or action and to  this plea there be a demurrer Montague for a consultation this be a matter  whereof they have proper conusance for by the libel it appear to be sin  incontinentiae in the particular of solicit a marry woman to commit adultery  with he the word of the statute of circumspect to put in motion be non to  punish eos si placitum to hold c de his who are mere spirtualia videlicet de  amendment quas to bear before fanciunt pro mortal sin videlicet pro  fornication adultery et hujusmodi Inst a and it appear by the word hujusmodi  that they have conusance of thing of less nature than fornication as  solicitation of chastity and of high as incest and the reason be that the  commonlaw take no notice but of fact commit whereas the civil canon law punish  intention if wicked and they go upon the rule that a man must not look after a  woman to lust after her for if they will carry that desire further as to  endeavour though by fair mean to put their desire in execution they will  punish they second the question be whether the indictment and conviction for  the assault and battery and the action depend will alter the case they be  several prosecution in their nature and design the indictment be to entitle  the king to a fine for the breach of his peace and ill example to his subject  in the assault and the end of the action by the husband and wife be to recover  damage for the particular injury do to they and for each of these the  punishment be corporal or pecuniary but the suit below be for reformation of  his manner and salvation of his soul and if he be convict below he be only to  do penance which by commutation may be change into money as the statute of  circumspect to put in motion allow and a action may be bring in this court for  the sum commute for see the statute articuli allotment of land c when eaden  causan to visit account in person judge Church rites et of a saeculum  ventilator Inst b so the one law punish the wickedness of the mind the other  wicked act as in case of lie violent hand upon a clerk see the case of usury  Inst c and the maxim of no one debet bis to punish pro eoden fault do not hold  in this case for that be to be understand that a man modern shall not be twice  punish in the same manner as give damage twice or be twice fine upon a  indictment as if a man bring trespass for maihem and recover damage he shall  not after have a appeal for the first recovery may be plead in bar to it and  the reason be because both tend to have damage   a if a steal the good of b  and be bring trespass for they and be bar yet he may bring his appeal of  felony for those good by the statute of James c every lewd woman that have a  bastard Chargeable upon the parish be to be put to the house of correction and  punish for a year yet she may notwithstanding be punish in the spiritual court  so if a man find another man in bed with his wife he may have a assault and  battery against he and recover damage and he shall be likewise punish in the  spiritual court for adulterySir Philip Coot v bertie duke of Norfolk v sir  John germane b eyres contra one be not punishable in the spiritual court for a  solicitation of chastity where there be force use to gain that though he be in  case of a solicitation only for the force give such a temporal mixture to the  offence as ousts they of jurisdiction Inst c a matter mere spiritual be where  there be no mixture of the temporal fornication when by consent of party be  within their conusance and so be solicitation but if one will go far and use  force which if perfect will modern er p amount to a rape and by consequence  felony they have no pretence for the solicitation and force be at the same  time make a entire offence punishable at the commonlaw now as to have one  crime punish here and there the lie of violent hand upon a clerk be within the  express word of the statute of circumspect to put in motion punishable there  after it be punish here but not before Fitzherbert say Fitzherbert n b e that  if they proceed soon a prohibition will lie a suit be institute in the  spiritual court for these word you be a bawd there be two couple abed in your  housePalm f and a prohibition be grant upon a suggestion of a action depend  for the same word at law holt chief justice the prohibition ought to stand for  it be but one entire act and they below can divide it for the plaintiff in the  prohibition have aver the fact for which they be indict and that for which the  suit be below to be the same modern and to give they jurisdiction below you  shall have come and rejoin and traverse its be the same fact but that it be  for other cause than be in the indictment and that perhaps will have divide it  and he put this case which he say have be adjudge in my Lord hide time the  libel below be for say the prosecutor bad a bastard the defendant come and  suggest for a prohibition that he accuse the plaintiff below before a justice  of peace of get a bastardchild and that the justice adjudge he to be the  repute father of it and that he speak the word before the justice and it be  reply that they be speak at large and no otherwise than before the justice of  peace and to this it be plead by way of estoppel that since he have be adjudge  before the justice to have be the father he can not sue below for defamation  and of that opinion be the court here you shall say that it be for another  offence than the solicitation in the indictment or that it be at another time  and place than be lie in the indictment and their lie in the libel another  time and place than be in the indictment be not enough for below they lie at  what time and place they please if a mail solicit a woman and go gentle to  work with her at first and when he find that will not do he proceed to force  it be all one continue act beginning with insinuation and end with force and  in the case of the duke of Norfolk v germane state trial a it be not pretend  to be force and all indictment will not lie for a plain adultery but a libel  below will though the law indulge the husband with a action of assault and  battery for the injury do to he though it be with consent of his wife because  the law will not allow her a consent in such case to the prejudice of her  husband because of the interest he have in her and he compare it to the case  of call a woman a whore and thief there she shall not split the word and  punish he below for call her a whore and at law for call her a thief he agree  that if adultery be commit with another man wife without any force but by her  own consent though the husband may have assault and battery and lie it way et  arms yet they shall in that modern case punish below for that very offence for  all indictment will not lie for such a assault and battery neither shall the  husband and wife join in the action at commonlaw and therefore they proceed  below either civil that be to divorce they or criminal because they be not  criminal prosecute above and the true action for the husband in such case be a  special action because the defendant his wife to seize and carry off and not  to lie it per quod consortium to send away see Rastals entry trespass b the  court send for for that the offence be not mere spiritual