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Guernsey, or any places beyond the seas, within or without the king's dominions ; on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party aggrieved a sum not less than 5001. to be recovered with treble costs; shall be disabled to bear any office of trust or profit ; shall incur the penalties of praemunire ; and shall be incapable of the king's pardon.
This is the substance of that great and important statute : which extends (we may observe) only to the case of commitments for such criminal charge, as can produce no inconvenience to public justice by a temporary enlargement of the prisoner: all other cases of unjust imprisonment being left to the habeas corpus at common law. But cven upon writs at the common law it is now expected by the court, agreeable to ancient precedents () and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries ; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement. A remedy the more necessary, because
the oppression does not always arise from the ill-nature, but some(*138] times from the mere inattention of *government. For it frequent
ly happens in foreign countries, and has happened in England during temporary suspensions (s) of the statute), that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten (25).
The satisfactory remedy for this injury of false imprisonment, is by an action of trespass vi et armis, usually called an action of false imprisonment; which is generally, and almost unavoidably, accompanied with a charge of assault and battery also: and therein the party shall recover damages for the injury he has received ; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.
III. With regard to the third absolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is strictly a personal right; yet as its nature and original, and the means of its acquisition or loss, fell more directly under our second general division, of the rights of things; and as, of course, the wrongs that affect these rights must be referred to the corresponding division in the present book of our commentaries ; I conceive it will be more commodious and easy to con-. sider together, rather than in a separate view, the injuries that may be
(r) 4 Burt. 856.
(8) See Book I. page 136.
(25) Besides the efficacy of the writ of ha- is too young to have any discretion of its own, beas corpus in liberating the subject from illegal then the court will deliver it into the custody, confinement in a public prison, it also extends of its parent, or the person who appears to be its influence to remove every unjust restraint its legal guardian. See 3 Burr. 1434. where of personal freedom in private life, though im- all the prior cases are considered by Lord Mans. posed by a husband or a father; but when wo- field. In a late case (Moore and Fitzgibbon), men or infants are brought before the court by the court refused to permit an inquiry whether an habeas corpus, the court will only set them a child born during wedlock was the offspring free froin an unmerited or unreasonable con- of the former or the latter, but on a writ of finement, and will not determine the validity habeas corpus, directed that the child, an inof a marriage, or the right to the guardianship, fant under three years of age, should be rebut will leave them at liberty to choose where stored to the former, who was the husband of they will go : and if there be any reason to the child's mother. M. T. 1825, K. B. apprehend that they will be seized in return. If an equivocal return is inade to an habeas ing from the court, they will be sent home un- corpus, the court will immediately grant an der the protection of an officer. But if a child attachment. 5 T. R. 89.
offered to the enjoyment, as well as to the rights, of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.
We are next to contemplate those which affect their relative rights ; or such as are incident to persons considered as members of society, and connected to each other by various ties and relations; and, in particular, such injuries as may be done to persons under the four following relations ; husband and wife, parent and child, guardian and ward, master and servant.
*I. Injuries that may be offered to a person, considered as a hus- [*139] band, are principally three (26): abduction, or taking away a man's
(26) In ancient tines adultery was inquira- tion for criminal conversation, merely because ble in tourns and leets, 3 Inst. 206. and pu. the damages appear to them to be excessive, nished by fine and imprisonment; and so re. 4 T. R. 651. although they have the power to cently as the commencement of the seven- do so. Ib. 659. n. (a). teenth century, attempts were made by the le- By statute, a wife leaving her husband and gislature to bring this offence within the pale living in adultery with another shall lose her of criminal jurisdiction ;--tui they were inef. dower. 2 Inst. 436. The law considers the fectual. 5th vol. Parl. Hist. 88. During the wife as incapable of consenting to a crim. con. commonwealth an act was passed, the prović 7 Mod. 81. F. N. B. 89. On which account sions of which were, that adultery should be it is probable the usual remedy has been tresadjudged selony, "and every person, as well pass vi et armis, and not merely case, 6 East, the man as the woman offending therein, 387. Selw. N. P. 18. And the courts seem should suffer death without benefit of clergy; to have considered that whatever the form of provided that this should not extend, first, to the declaration may be, it is in effect case. 2 any man who did not know at the time of such Wils. 85. 6 East, 390. Bull. N. P. 28. The offence committed, that the woman was then husband may not only bring an action for the married; or, 2dly, to any woman whose hus. criminal conversation, for which he shall be band should be beyond the seas for three years, recompensed in damages, but may also proor reputed dead; or, 3dly, to any woman ceed in the ecclesiastical courts for the adulwhose husband should absent himself for three tery, and solicitation of chastity, and the proyears in any place, so as the wife should not ceedings in one court shall be no bar to the know her husband to be living within that other. 4 Bac. Ab. 553. T. R. 6.
See Scobell's Acts, part 2. p. 121. fo. Evidence.--The evidence of the fact of adul. ed. But this law was not renewed at the res: tery, which, from its very nature, is usually toration. The damages given to the husband circumstantial, must be sufficient to satisfy the are generally considerable, though lord Ken jury that an adulterous intercourse has actualyon reprobated the idea that they were to be ly taken place. Proof of familiarities, howev. given so as to operate as a punishment. 5 er indecent, is insufficient is there be reason T. R. 360.4 Burr. 2059. If the husband has to apprehend, from the fact of the parties beparted with the right to the society of his wise, ing interruptel, or on any other circumstance, absolutely and permanently, it has been said that a criminal conversation has not taken that he cannot support an action for a supposed place. Stark. on Evid. 2 vol. 440. Where injury during the separation; but if agree. the statute of limitations has been pleaded, so ment to separate is only conditional, or tem- as to exclude the recovery of damages for porary, it is otherwise. 5 T. R. 360. Peake adulterous intercouse, which took place a Rep. 7. 6 East, 244. 2 Smith, 356. And if greater distance of time than six years previ. the husband has consented to or facilitated ous to the commencement of the action, it has the injury, he cannot sue. Bull. N. P. 27. 2 been held, that anterior acts of adultery are T. R. 116. 4 T. R. 655. 5 T. R. 360. 3 evidence for the purpose of shewing the naWood. 246. volenti non fit injuria. So if the ture of the connexion which subsisted within wise be suffered to live as a prostitute with the six years. 8 St. Tr. 35. The consession of privity of her husband, and the defendant has the wife will be no evidence against the debeen thereby drawn in to commit the act of fendant, Bull. N. P. 28. but a discourse bewhich the husband complains, the action can- tween the wife and the defendant is evidence, not be maintained, Bull, N. P. 27. Peake R. as also are letters written by the defendant to 39; but if the husband is ignorant of her pros- the wife. Stark. on Evid. 2 vol. 441. Tho titution, then it goes only in mitigation of da- defendant may shew in mitigation of damages, mages, Bull. N. P. 27; as will his negligence that the wife had before eloped, or bad been or inattention to the conduct of his wise with connected with others, that she had borne a the defendant. 4 T. R. 651. So, according bastard before marriage, Bull. N. P. 296. that to lord Kenyon's opinion, is the husband has she had been a prostitute previous to her conhimself been guilty of incontinency, he cannot nexion with the defendant, ib. 27; but it is sue, 4 Esp. 16; but lord Alvanley, in a subse. there laid down, that the defendant cannot quent case, was of opinion that such conduct give evidence of the general reputation of her only affected the damages, 4 Esp. R. 237. being, or having been, a prostitute, for that The court will not grant a new trial in an ac- may have been occasioned by her familiarity
wife ; adultery, or criminal conversation with her; and beating or otherwise abusing her. 1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence : though the law in both cases supposes force and constraint, the wife having no power to consent; and therefore gives a remedy by writ of ravishment, or action of trespass vi et armis, de uxore rapta et abducta (1). This action lay at the common law; and thereby the husband shall recover, not the possession (u) of his wife, but damages for taking her away : and by statute Westm. 1. 3 Edw. I. c. 13. the offender shall also be imprisoned two years, and be fined at the pleasure of the king. Both the king and the husband may therefore have this action (w); and the husband is also entitled to recover damages in an action on the case against such as persuade and entice the wife to live separate from him without a sufficient cause (x). The old law was so strict in this point, that if one's wife missed her way upon the road, it was not lawful for another man to take her into his house, unless she was benighted and in danger of being lost or drowned (y): but a stranger might carry her behind him on horseback to market to a justice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce (-). 2. Adultery, or criminal conversation with man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury (and surely there can be no greater), the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. But these are properly increased and diminished by circumstances (a); as the
rank and fortune of the plaintiff and defendant; the relation or [*140] *connexion between them; the seduction or otherwise of the
wife, founded on her previous behaviour and character ; and the husband's obligation by settlement or otherwise to provide for those children, which he cannot but suspect to be spurious. In this case, and upon indictments for polygamy, a marriage in fact must be proved ; though generally, in other cases, reputation and cohabitation are sufficient evidence of marriage (b). The third injury is that of beating a man's wife, or otherwise ill-using her; for which, if it be a common assault, battery, or imprisonment, the law gives the usual remedy to recover damages, by action of trespass vi et armis, which must be brought in the names of the husband and wife jointly : but if the beating or other mal-treatment be very enormous, so that thereby the husband is deprived for any time of the company and assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill-usage, per quod consortium amisit; in which he shall recover a satisfaction in damages (c).
II. Injuries that may be offered to a person considered in the relation (t) F. N. B. 89.
(a) Law of nisi prius, 26. (*) Law of nisi prius, 74.
(z) Bro. Abr. 207. 440.
(u) 2 Inst. 434. (1) Ibid.
(b) Burr. 2057.
(y) Bro. Abr. t. irespass, 213.
with the defendant; though perhaps having of loose conduct, and notoriously bad charac. laid a foundation, by proving her being ac- ter; that she made the first overtures and ad. quainted with other men, such general evi. vances to the defendant, 2 Esp. R. 562.1 dence may be admitted. Stark, on Evid. 2 Sel. N. P. 25. that his means and expectations vol. 244. 'n. For the same purpose he may are inconsiderable. also give in evidence, that she was a woman
of a parent (27) were likewise of two kinds : 1. Abduction, or taking his children away; and, 2. Marrying his son and heir without the father's consent, whereby during the continuance of the military tenures he lost the value of his marriage. But this last injury is now ceased, together with the right upon which it was grounded; for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no sort of injury for which a civil action will lie. As to the other, of abduction, or taking away the children from the father, that is also a matter of doubt whether it be a civil injury or no; for, before the abolition of the tenure in chivalry, it was equally a doubt whether an action would lie for taking and carrying away any other child besides the heir : some holding that it would not, upon the supposition that the only ground or cause of action was losing the value of the heir's marriage; and others holding that an action would lie for taking away any of the children, for that the parent hath an interest in them all, to provide for their education (d). If therefore before the abolition of these tenures it was an injury to the father to take *away the rest of his children, as well as his heir (as [*141] I am inclined to think it was), it still remains an injury, and is remediable by writ of ravishment, or action of trespass vi et armis, de filio, vel filia, rapto vel abducto (e); in the same manner as the husband may
have it, on account of the abduction of his wife.
(e) F. N. B. 90.
(d) Cro. Eliz. 770.
(27) See in general, Bac. Ab. Master & whom she resides may maintain the action, 11 Servant, 0. Selw. N. P. Master & Servant. East, 24. 5 East, 45. 2 T. R. 4. and the jury It has been disputed, but the better opinion is, are not limited in their verdict to the mere loss that the father has an interest in his legiti- of service. 11 East, 24. The daughter is a mate child, sufficient to enable him to support competent witness, 2 Stra. 1064. and though an action in that character, for taking the child not essential, the omission to call her would away, he being entitled to the custody of it. be open to observation. Holt's R. 451. ExCro. Eliz. 770.23 Vin. 451. 2 P. W. 116. penses actually incurred should be proved, and 3 Co. 38. 5 East, 221. No modern instance a physician's fee, unless actually paid, cannot however of such action can be adduced, and it be recovered. Starkie R. 287.' The state is now usual for the father to bring his action and situation of the family at the time should for any injury done to his child, as for de- he proved in aggravation of damages, 3 Esp. bauching her, or beating him or her, in the R. 119; and if so, that the defendant profess. character of master, per quod servilium amisil, ed to visit the family, and was received as the in which case some evidence must be adduced suitor of the daughter. 5 Price, 611. It has of service. 5 T. R. 360, l. See post, 142. been said, that evidence to prove that defendnote 29.
ant prevailed by a proinise of marriage, is inIn an action for debauching plaintiff's admissible. 3 Camp. 519. Peake L. E. 355. daughter, as his servant, it is necessary to See 5 Price, 611. And no evidence of the prove her residence with him, and some acts daughter's general character for chastity is of service, thongh the most trifling are suffi- admissible, unless it is impugned. 1 Camp. cient. See 2 T. R. 167. 2 N. R. 476. 6 460. 3 Camp. 519. The defendant may, in East, 387. It is unnecessary to prove any mitigation of damages, adduce any evidence contract of service. Peake's R. 253. But if of the improper, negligent, and imprudent conthe seduction take place while she is residing duct of the plaintiff himself; as where he elsewhere, and she in consequence return to knew that defendant was a married mau, and her father, he cannot maintain the action, 5 allowed his visits in the probability of a diEast, 45.+ unless she be absent with his con- vorce, lord Kenyon held the action could not sent, and with the intention of returning, al. be maintained. "Peake R. 240. And evidence though she be of age, ib. 47. n.; or if the de. may be given on an inquisition of damages in fendant engaged her as his servant, and in- an action for seduction, that the defendant viduced her to live in his house as such, with sited at the plaintiff's house for the purpose intent to seduce her. 2 Starkie Rep. 493. If of paying his addresses to the daughter, with she live in another family, the person with an intention of marriage. 5 Price, 641.
+ In 1 Wendell, 447, it is decided tha: if the her. If she be under age, she is presumed to daughter be of age she must be in her father's be under his control and protection so as to en. service, so as to constitute in law and in fact title him to the action, whether she actually the relation of master and servant, in order to resides with him or not. entiile her father to an action for seducing
III. Of a similar nature to the last is the relation of guardian and ward; and the like actions mutatis mutandis, as are given to fathers, the guardian also has for recovery of damages, when his ward is stolen or ravished away from him (f). And though guardianship in chivalry is now totally abolished, which was the only beneficial kind of guardianship to the guardian, yet the guardian in socage was always (g) and is still entitled to an action of ravishment, if his ward or pupil be taken from him: but then he must account to his pupil for the damages which he so recovers (1). And, as a guardian in socage was also entitled at common law to a writ of right of ward, de custodia terrae et haeredis, in order to recover the possession and custody of the infant (i), so I apprehend that he is still entitled to sue out this antiquated right. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery ; which is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom. And it is expressly provided by statute 12 Car. II. c. 24. that testamentary guardians may maintain an action of ravishment or trespass, for recovery of any of their wards, and also for damages to be applied to the use and benefit of the infants (k) (28).
IV. To the relation between master and servant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man's hired servant before his time is expired; the other is beat
ing or confining him in such a manner that he is not able to per[*142] form his work. As *to the first, the retaining another person's
servant during the time he has agreed to serve his present master ; this, as it is an ungentlemanlike, so it is also an illegal act. For every master has by his contract purchased for a valuable consideration the service of his domestics for a limited time: the inveigling or hiring his servant, which induces a breach of this contract, is therefore an injury to the master; and for that injury the law has given him a remedy by a special action on the case; and he may also have an action against the servant for the non-performance of his agreement (?). But, if the new master was not apprized of the former contract, no action lies against him (m), unless he refuses to restore the servant, upon demand. The other point of injury, is that of beating, confining, or disabling a man's servant, which depends upon the same principle as the last ; viz. the property which the master has by his contract acquired in the labour of the servant.
In this case, besides the remedy of an action of battery or imprisonment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis ; in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit (n); and then the jury will make him a proportionable pecuniary satisfaction (29). And similar practice to which, we find also to have obtained
(k) 2 P. Wms. 108.
(n) 9 Rep. 113. 10 Rep. 330. (28) 2 R. S. 150, 9 3.
cure his child. 5 East, 45. 6 East, 391. 11 (29) Even in case of debauching, beating, East, 23. Sir T. Raym. 259.
And if it ap. or injuring a child, the father cannot sue with- pear in evidence that the child was of such out alleging and proving that be sustained tender years as to be incapable of affording some loss of service, or at least that he was any assistance, then he cannot sustain any acobliged to incur expense in endeavouring to tion. The rules and principles in support of
(f) F. N. B. 139.