THIS was an indictment for adultery, which had been found in the Quarter Sessions, of Bucks County. The woman was married; but the indictment did not state the defendant to be so; and, indeed, the contrary was allowed, in the course of the argument, to be the fact. The question brought before this Court was, whether in such circumstances, the defendant would be convicted and sentenced for adultery, under the act of Assembly? 1 Vol. p. 47. Dall. Edit. the Attorney General contending for the affirmative of the proposition, and Serjeant opposing it.
THE COURT, after consideration, delivered an unanimous opinion, that under the act of Assembly, and the uniform practice of eighty-five years (a practice, which, though it does not make the law, must be strong evidence of what the law is) the indictment could not be supported on the charge of adultery: But that the judgment for fornication only, must be pronounced against the defendant.
Judgment accordingly.