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THE LAWS OF ENGLAND.
BOOK THE THIRD.
OF PRIVATE WRONGS.
OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.
Ar the opening of these Commentaries (a) municipal law was in general defined to be, "a rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." (b) From hence, therefore, it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned (c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden, and redressed by the laws of England.
*In the prosecution of the first of these enquiries, we distinguished rights into two sorts: first, such as concern, or are annexed to, the per[*2 ] sons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these Commentaries: and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now, therefore, to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.
Wrongs are divisible into two sorts or species: private wrongs, and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of pub
(a) Introduc. § 2.
(b) Sanctio justa, jubens honesta, et prohibens contraria Cic. 11. Philipp. 12. Bract, l. 1, c. 3.
(c) Book I, ch. 1.
lic rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellations of crimes and misdemeanors. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding volume.
The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws by which rights are defined, and wrongs prohibited. This remedy is therefore princi [*3] pally to be sought by application to these *courts of justice; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs, by suit or action in courts But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.
And, first, of that redress of private injuries, which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
Of the first sort, or that which arises from the sole act of the injured party, is, I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, (1) be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens, is chargeable upon him only who began the affray. (d) For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connexion) makes it lawful in him to do himself that
[*4] immediate justice, to which he *is prompted by nature, and which no pru
dential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately
(d) 2 Roll. Abr. 546. 1 Hawk. P. C. 131
(1) In the defence of one's self, or any member of his family, a man has a right to employ all necessary violence, even to the taking of life. Shorter v. People, 2 N. Y. 193; Yates r. People, 32 N. Y. 509; Logue v. Commonwealth, 38 Penn. St. 265; Pond v. People, 8 Mich. 150; Maher v. People, 24 Ill. 241. But except where a forcible felony is attempted against person or property, he is always to avoid such lamentable consequences if possible, and he can. not justify standing up and resisting to the death when the assailant might have been avoided by retreat. People v. Sullivan, 7 N. Y. 396. But when a man is assaulted in his dwelling, he is under no obligation to retreat; his house is his castle, which he may defend to any extremity. And this means not simply the dwelling-house proper; whatever at the common law is within the curtilage is entitled to the same protection. Pond v. People, 8 Mich. 150. And in deciding what force it is necessary to employ in resisting the assault, a man must act upon the circumstances as they appear to him at the time, and he is not to be held criminal because on a calm survey of the facts afterwards it appears that the force employed was excessive. See the cases cited above; also Henton v. State, 24 Texas, 454; Schiner v. People, 23 Ill. 17; Patten v. People, 18 Mich. 314. In the last case it was held that where a man's dwelling, in which was his mother in feeble health, was assailed by rioters, and he had reason to believe that the noise and threats of the assailants endangered his mother's life, he had the same right to em. ploy force to quell the riot that he would have had to defend his mother against an actual attack upon her person.
to oppose one violence with another. Self defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law, particularly, it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken, that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.
II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them, wherever he happens to find them; so it be not in a riotous manner, or attended with a breach of the peace. (e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If, therefore, he can so contrive it as to gain possession of his property again, without force or terror, the law favours and will justify his proceeding. But, as the public peace is a superior consideration to any one man's private property; and, as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided, that this natural right of recaption *shall never be exerted, where such exertion must occasion strife and bodily [*5] contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen; (f) but must have recourse to an action at law. (2)
III. As recaption is a remedy given to the party himself, for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property, is by entry on lands and tenements, when another person without any right has taken possession thereof. (3) This depends in some measure on like
(e) 3 Inst. 134. Hal. Anal. § 46.
(f) 2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566.
(2) [In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrongdoer, even without a previous request; but unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands on the wrongdoer in order to recover it; 8 T. R. 78; 2 Roll. Abr. 56, 208; id. 565, pl. 50; 2 Leonard, 202; Selw. N. P. tit. Assault and Battery; nor can he without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr. 55, 56, 208; id. 565, I, pl. 2; Bac. Ab. Trespass, F.1
Nor can he lawfully enter upon the lands of a third party who is not a wrongdoer for the purpose of retaking his own property: Heermance v. Vernoy, 6 Johns. 5; Blake v. Jerome, 14 id. 406; and his attempt to do so may be resisted by force. Newkirk v. Sabler, 9 Barb. 652.
(3) [With respect to land, and houses also, resumption of possession by the mere act of the party is frequently allowed. Thus, if a tenant omit at the expiration of his tenancy, to deliver up possession, the landlord may legally in his absence, break open the outer door and resume possession, though some articles of fa.. ture remain therein; and if the landlord put his cattle on the land, and the tenant distrain hem as a damage-feasant, he may be sued. 1 Bing. R. 158; 7 T. R. 431, 432; 1 Price R. 53; Andr. 109; 6 Taunt. 202. If the landlord, in resuming possession, be guilty of a forcible entry with strong hand, or other illegal breach of the peace, he will be liable to an indictment. 7 T. R. 432; 3 id. 295; 6 Taunt. 202; 8 T. R. 364, 403. But the circumstance of the owner of property using too much force in regaining pos session, but taking care to avoid personal injury to the party resisting, will not enable the latter to sue him. But if any unnecessary violence to the person be used in rescuing or defending possession of real or personal property, the party guilty of it is liable to be sued. 8 T. R. 299; id. 78; 1 Saund. 296, n. 1. So, as the law allows retaking of the possession of land, it also sanctions the due defence of the possession thereof; and therefore, though if one enter into my ground, I must request him to depart before I can lay hands on him to turn
reasons with the former; and like that. too, must be peaceable and without force. There is some nicety required to define and distinguish the cases, in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.
IV. A fourth species of remedy by the mere act of the party injured, is the abatement or removal of nuisances. (4) What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it. (g) If a house or wall is erected so near to mine that it stops my ancient lights, which is a private nuisance I may enter my neighbor's land, and peaceably pull it down. (h) Or if a new gate be erected across the public highway, which is a common nuisance, any of the king's subjects passing that way, may cut it down and destroy it. (i) *And the reason why the law allows this private and summary method [*6] of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.
(g) 5 Rep. 101. 9 Rep. 55.
(h) Salk. 459.
(i) Cro. Car. 184.
him out, yet if he refused I may then push him out, and if he enter with actual force I need not first request him to be gone, but may lay hands on him immediately. 8 T. R. 78; 1 Salk. 641; see 1 Bing. 158.]
(4) [Thus, in case of a public nuisance, if a house be built across a highway any person may pull it down; but it is a general rule, that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 458. As to private nuisances, they also may be abated; and therefore it was recently held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet, and so diminishing the water used by the latter for his cattle, the party injured may enter on the soil of the other and abate the nuisance, and justify the trespass; and this right of abatement is not confined merely to a house, mill, or land. 2 Smith's Rep. 9; 2 Rol. Ab. 565; 2 Leon. 202; Com. Dig. Pleader, 3 M. 42; 3 Lev. 92.
As to cutting trees, "if the boughs of your trees grow out into my land, I may cut them." Per Croke, J., Rol. Rep. 394; 3 Buls. 198; Vin. Ab. Trees, E. and tit. Nuisance, W, 2, pl. 3.
The abater of a private nuisance cannot remove the materials further than necessary; or convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as if a house be built too high, only so much of it as is too high should be pulled down. 9 Rep. 53; God. 221; 2 Stra. 686.]
Any obstruction to a navigable river is a nuisance, which any citizen having occasion to use the river for the passage of his vessel may lawfully remove. Inhab. of Arundel v. McCulloch, 10 Mass. 70. And the permission of the town to create the obstruction will not preclude the abatement. Id. But that which the legislature of the state permits cannot be a public nuisance: Williams v. N. Y. Central R. R. Co., 18 Barb. 222; unless the permission is exceeded: Renwick v. Morris, 7 Hill, 575; Hinchman v. Railroad Co., 2 Green, N. J. 75; it may nevertheless be a private nuisance, as where a dam erected by legislative act floods the lands of an individual, in which case he may abate it. State v. Moffett, 1 Greene, Iowa, 247. Generally a legislative act permitting the construction of a bridge or dam across a navigable stream is a complete protection to the structure. Commonwealth v. Breed, 4 Pick. 460; Depew v. Trustees of W. and E. Canal, 5 Ind. 8; Dover v. Portsmouth Bridge, 17 N. H. 200. Except where the river constitutes a highway for foreign or inter-state commerce, in which case the regulations which congress might prescribe would be supreme: See Columbus Ins. Co. v. Peoria Bridge Co. 6 McLean, 72; United States v. New Bedford Bridge, 1 Wood. and M. 401; Wheeling Bridge Case, 13 How 518. A statutory penalty or other remedy for abating a private nuisance does not exclude the private remedy. Wetmore v. Tracy, 14 Wend. 250; State v. Moffett, 1 Greene, Iowa, 247. But in exer
ising the right to abate, as little injury is to be done as possible. Moffett v. Brewer, id. 348. And if the nuisance consists in occupying a building for an unlawful purpose, it seems that this does not justify tearing down the building: Welch v. Stowell, 2 Doug. Mich. 332; though if the occupation is such as to breed disease, it has been held that it might be destroyed if necessary. Meeker r. Van Rensselaer, 15 Wend. 397.
As to the right to abate private nuisances in general, see, further, Dimes v. Petley, 15 Q. B. 276: Jones v. Williams, 11 M. and W. 176; Davies v. Williams, 16 Q. B. 546; Hyde v. Graham 1 H. and C. 598. Indianapolis v. Miller, 27 Ind. 394.
V. A fifth case, in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for non-payment of rent, or other duties; (5) or, distraining another's cattle, damagefeasant, that is, doing damage, or trespassing, upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.
As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness: by inquiring, first, for what injuries a distress may be taken; secondly, what things may be distrained; and, thirdly, the manner of taking, disposing of, and avoiding distresses.
1. And, first, it is necessary to premise, that a distress, (j) districtio, is the taking a personal chattel out of the possession of the wrongdoer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury, for which a distress may be taken, is that of nonpayment of rent. It was observed in a former book, (k) that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also; but not to rent-seck, till the statute 4 Geo. II, c. 28. extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as an universal principle, *that a distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to [**] him that is entitled to receive it. (6) 2. For neglecting to do suit to the lord's court, () or other certain personal service, (m) the lord may distrain of common right. 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it. (n) 4. Another injury, for which distresses may be taken, is where a man finds beasts of a stranger wandering in his grounds, damagefeasant; that is, doing him hurt or damage, by treading down his grass, or the like; in which case the owner of the soil may detain them, till satisfaction be made him for the injury he has thereby sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament (as for assessments made by commissioners of sewers, (0) or for relief of the poor,) (p) remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves: remarking only, that such distresses (q) are partly analogous to the ancient distress at common law, as being repleviable and the like; but
(j) The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress. (1) Bro. Abr. tit. Distress, 15. (p) Stat. 43 Eliz. c. 2.
(k) Book II, ch. 3.
(0) Stat. 7 Ann. c. 10.
(m) Co. Litt. 47. (g) 1 Burr. 539.
(n) Brownl. 36.
(5) [As to distresses in general, see Gilbert on Distresses, by Hunt; Bradby on Dist.; Com. Dig. Distress; Bac. Ab. Distress; Vin. Ab. Distress: 2 Saunders, index, Distress; Wilkinson on Replevin.
Accepting a note of hand, and giving a receipt for the rent, does not, till payment, preclude, the landlord from distraining; and so if the landlord accept a bond; but a judgment, obtained on either of such instruments, would preclude the right of distress. See Bull. N. P. An agreement to take interest on rent in arrear, does not take away the right of distress. 2 Chit. R. 245. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had in equity. Per Comeyns, B. Exch. Trin. 5 and 6 Geo. II; 1 Selw. N. P. 6th ed. 673. But where an estate has been let without in any way fixing the amount of rent, the only remedy is by action.]
(6) [But to entitle a party to distrain there must be a rent due in the legal sense of that word. One man may be in possession of another's house or land, with his consent, and may be bound to render him such a sum for the use and occupation of it as a jury shall deem a proper equivalent for the rent; but if there be no actual demise, nor any contract for a demise amounting to as much, and no fixed rent has been agreed on or paid, the owner cannot distrain; for in his avowry to an action of replevin for such distress he would be bound to state an actual tenancy and the definite terms of it, which it would be impossible to do under such a relation as above supposed. Kegan v. Johnson, 2 Taunt 148; Dunk v. Hunter, 5 B and A. 322.]