Many years ago, an aggrieved husband would make his wife's seducer pay - in court - which, as James Morton explains, could be an entertaining affair


This year marks the 150th anniversary of the Divorce Reform Act 1857. Its arrival signalled the end of the splendid action for criminal conversation. The offence was neither criminal nor conversation but was good old-fashioned adultery, which allowed the cuckolded husband to sue his wife’s seducer for damages. That year yielded Lyle v Herbert, heard at Croydon by the Lord Chief Baron and a jury, one of the last and most entertaining actions for ‘crim con’, as it was known.



Highly popular at the time for aggrieved husbands and highly expensive for erring gentlemen, the action was often brought as a prelude to an action for a divorce mensa et thoro, effectively a claim for a judicial separation. Jurors, themselves a 'special jury of gentlemen of fortune', 24 men selected from freeholders of substance, knights and urban gentry, were generally thought to be more inclined to value the honour of gentlemen than the usual juror.



Damages could be as high as £15,000 and were often awarded in a matter of minutes – in 1802, £5,000 was awarded without the jury leaving the box, and in 1815, the jurors halved a £30,000 claim in an hour. Once they were awarded, the defendant either paid up, came to an arrangement with the husband or was arrested, his goods seized and he was put in prison. An 1836 Act allowed the defendant to apply for his release after 12 months. Before that, the period had been ten years.



One escape route was to flee to France and live an impoverished life in Calais or Boulogne where the debtor’s prison was known as the Hotel d’Angleterre. When it came to it, however, Mr Herbert got away as cheaply as he possibly could.



The plaintiff, Mr Lyle, had, as they say, married above himself. An upholsterer in Charlotte Street, Fitzroy Square, he met his wife, the young daughter of an Indian officer, and described by a witness rather unkindly as ‘of no particular personal attractions’ at a ball in Birmingham. They married in April 1851 and when, five years later, Lyle wanted to extend his business, he placed an advertisement in The Times seeking a partner with capital.



Mr Herbert, then aged around 50 and living in Croydon, answered, invested, took both an interest in the business and one of a different sort in Mrs Lyle. In January 1857, he observed that it was a long journey to Croydon and suggested he rent a room with the Lyles. By Easter, a serving girl, Maria Taylor, noted Herbert in the parlour with Mrs Lyle at his feet. Later she told the court that on 18 June she saw the pair ‘fall from the bed together’ and was so frightened she ran away. This was when the spectators first began to laugh.



After Easter, Lyle took rooms in Cumberland Street which backed on to Charlotte Street and instructed carpenter William Taylor – no relation to Maria – to bore a hole in the wall through which he could spy on the pair. This was unsuccessful and another room was taken.



This time, Taylor built a gadget, a lever attached to a spring – the ‘crimconometer’, laughed the papers – for Lyle. It weighed whether more than one person was in Herbert’s bed and an arrow seems to have run up a scale to determine whether up to four people were in the bed. He and Lyle now stayed in the room, until on 18 June, he had his ear to the hole in the wall and his eye on the crimconometer. The level on the scale rose when first one person got into bed and then again when that person was joined by a second.



By now, the laughter in court was almost continuous and Lyle must have begun to wonder whether it had been sensible to bring the action in the first place.



Taylor then went on to the roof, let himself in the Charlotte Street house through a trapdoor and, collecting Maria as a witness, went up to Herbert’s bedroom. There, with the help of a bull’s-eye lantern, they saw Herbert and Mrs Lyle in bed. This was the moment when Maria fled. Meanwhile, as she went down the stairs, the deceived Lyle was making his way up them to confront the adulterers.



Cross-examined by Sergeant Parry for Herbert, Taylor claimed the crimconometer was entirely his own invention, although he had yet to take out a patent. Lyle had paid him £20 for his services. Then more details came out. He and Lyle had watched the crimconometer for around an hour and half, having a few glasses of gin and water, so that Mrs Lyle and Herbert could have ‘every facility afforded them’. Afterwards, he had taken Herbert’s boots from him so the man could not escape while he and Lyle had a celebratory meal of pickled salmon and more gin, which Taylor had also confiscated from the unfortunate man. No, he had not been spying on the pair while sat on the roof in women’s clothing. Should he produce the machine?



Certainly not, laughed Sergeant Parry, claiming he had been shocked enough already. And the court laughed with him.

Addressing the jury, he pointed out that even if the jury accepted the dubious evidence of William Taylor, the affair had been known of by Lyle for some two months and he had acquiesced in it. What decent man would do that?



The jury both believed Taylor and agreed with Sergeant Parry, awarding a farthing damages. The press had a happy time reporting the case in detail. I have not been able to find out whether the publicity helped or hindered Lyle’s upholstery business or indeed whether Mrs Lyle and Mr Herbert lived happily ever afterwards.



James Morton is a former criminal law specialist solicitor and now a freelance journalist