« EdellinenJatka »
that may be 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 husband, are principally three:(22) abduction, or taking away a man's wife; adultery, [*139]
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.(t) 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) 2. Adultery, or criminal conversation with a 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. (23) But these are properly increased and diminished by circumstances; (a) as the rank and fortune of the plaintiff and defendant; the relation or *connexion between them; the seduction or otherwise of the wife, founded on her previous [*140] 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 suffi
(t) F. N. B. 89.
(x) Law of nisi prius, 78.
(22) [If the husband has parted with the right to the society of his wife, absolutely and permanently, it has been said that he cannot support an action for a supposed injury during the separation; but if agreement to separate is only conditional, or temporary, it is otherwise. 5 T. R. 360; Peake Rep. 7; 6 East, 244; 2 Smith, 356. And if the husband has consented to or facilitated the injury, he cannot sue. Bull. N. P. 27; 2 T. R. 116; 4 id. 655; 5 id. 360; 3 Wood. 246: volenti non fit injuria. So if the wife be suffered to live as a prostitute with the privity of her husband, and the defendant has been thereby drawn in to commit the act of which the husband complains, the action cannot be maintained: Bull. N. P. 27; Peake R. 39; but if the husband is ignorant of her prostitution, then it goes only in mitigation of damages: Bull. N. P. 27; as will his negligence or inattention to the conduct of his wife with the defendant. 4 T. R. 651. So, according to Lord Kenyon's opinion, if the husband has himself been guilty of incontinency, he cannot sue: 4 Esp. 16; but Lord Alvanley, in a subsequent case, was of opinion that such conduct only affected the damages. 4 Esp. R. 237. The court will not grant a new trial in an action for criminal conversation, merely because the damages appear to them to be excessive (4 T. R. 651), although they have the power to do so. Ib. 659, n. (a).] (23) [An action on the case may be brought, but trespass has been usually adopted. Chain berlin v. Hazlewood, 5 M. and W. 517.]
Mr. Greenleaf thinks the action on the case preferable. 2 Greenl. Ev. § 40, n.
cient evidence of marriage. (b) 3. 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 of a parent (24) 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, or abduction, or taking away the children from the father, that is also a matter of doubt whether it be a civil injury or ao; 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 had an interest in them all, to provide for their education. (d) If, therefore, before the abolition [*141 ] of these tenures it was an injury to the father to take away the rest of his children, as well as his heir (as I am inclined to think it was), it still remains an injury, and is remediable by writ of ravishment, or action of
(24) The American authorities follow the English in holding that, in an action for debauching the plaintiff's daughter, it is necessary to declare upon an injury to the plaintiff in the relation of master and servant, and to give some evidence from which a loss of service may be implied. Lee r. Hodges, 13 Grat. 726; McDaniel v. Edwards, 7 Ired. 408. If, therefore, the daughter at the time of the seduction was actually in the service of another, as his indentured apprentice or otherwise, the parent cannot maintain this action: South v. Denniston, 2 Watts, 474; Dain v. Wyckoff, 7 N. Y. 191; Parker v. Meek, 3 Sneed, 29; unless the daughter was under age, and was absent from home at the time with the consent of the parent, and with the right on his part to recall her at any time. Martin v. Payne, 9 Johns. 387; Clark v. Fitch, 2 Wend. 459; Mulvehalle. Millward, 11 N. Y. 343; Boyd v. Byrd, 8 Blackf. 113; Bolton v. Miller, 6 Ind. 262; Hornketh v. Barr, 8 S. and R. 36. Or unless she was in the service of the defendant, who had employed her with the fraudulent purpose of seduction. Dain v. Wyckoff, 18 N. Y. 45. It is of no importance that the daughter is over twenty-one if she actually resides with her father: Kelley r. Donnelly, 5 Md. 211; Vossel v. Cole, 10 Mo. 634; but if, being over age, she is also not living with her father when the seduction takes place, he cannot bring the suit. notwithstanding she returns to his house before her confinement. Nickleson v. Stryker, 10 Johns. 115. The recovery is therefore nominally based upon loss of services; but proof of the slightest loss is sufficient; Kendrick v. McCrary, 11 Geo. 603; and a loss of services will be presumed if the plaintiff had a right to require them: Anderson v. Ryan, 3 Gilm. 583; and the jury may give substantial damages to compensate for the parent's anxiety and sense of disgrace: Kendrick . McCrary, 11 Geo. 603; Travis v. Barger, 24 Barb. 614; Dain v. Wyckoff, 7 N. Y. 191; though these alone will not support the action. See Knight v. Wilcox, 14 N. Y. 414.
Thus it will be seen that the action is nominally for one thing, and the recovery in fact for another; and the anomaly is so great that it has often been made the subject of comment by courts. The New York cases upon this subject are particularly instructive. Compare especially Clark e. Fitch, 2 Wend. 459, with Bartley . Richtmyer, 4 N. Y. 43. The legislation of severa of the states has relieved the law of some odium by authorizing suit to be brought in these cases by the father, mother, or some other person tor the benefit of the woman, and without averment or proof of loss of service.
It follows, from what is above stated, that any one who at the time holds the legal relation of master to the person seduced-whether parent, guardian or employer-or with whom she lives, and for whom she performs services, whether for compensation agreed upon or not, may maintain the action.
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.
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. (ƒ) 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. (h) And, as guardian in socage was also entitled at common law to a writ of right of ward, de custodia terræ et hæredis, 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 writ. 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)
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 beating or confining him in such a manner that he is not able to perform his work. As *to
the first, the retaining another person's servant during the time he has [*142 ]
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 apprised 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 labor 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. And similar practice to which, we find also to have obtained among the Athenians; where masters were entitled to an action against such as beat or ill-treated their servants. (o) (25)
We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties related, by the breach and dissolution. of either the relation itself, or at least the advantages accruing therefrom: while the loss of the inferior by such injuries is totally unregarded. One reason for which may be this: that the inferior hath no kind of property in the company, care, or assistance of the superior, as the *superior is held to have in those of the inferior; and therefore the inferior can suffer no loss or [*143] injury. The wife cannot recover damages for beating her husband, for she hath
(e) F.N. B. 90.
(i) F. N. B. 139.
(f) Ibid. 139.
(n) 9 Rep. 113. 10 Rep. 330.
(25) See note 24, p. 140.
no separate interest in anything during her coverture. The child hath no prop erty in his father or guardian; as they have in him, for the sake of giving him education and nurture. Yet the wife or the child, if the husband or parent be slain, have a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction; which is called an appeal, (26) and which will be considered in the next book, And so the servant, whose master is disabled, does not thereby lose his maintenance or wages. He had no property in nis master; and if he receives his part of the stipulated contract, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.
OF INJURIES TO PERSONAL PROPERTY.
IN the preceding chapter we considered the wrongs or injuries that affected the rights of persons, either considered as individuals, or as related to each other; and are at present to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.
And here again we must follow our former division (a) of property into personal and real: personal, which consists in goods, money, and all other movable chattels, and things thereunto incident; a property which may attend a man's person wherever he goes, and from thence receives its denomination: and real property, which consists of such things as are permanent, fixed, and immovable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they subsist.
First then we are to consider the injuries that may be offered to the rights of personal property; and, of these, first, the rights of personal property in possession, and then those that are in action only. (b)
I. The rights of personal property in possession, are liable to two species of injuries the amotion or deprivation of that possession; and the abuse or damage of the chattels, while the possession continues in the legal owner. The former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust detaining them, though the original taking might be lawful.
*1. And first of an unlawful taking. The right of property in all [*145] external things being solely acquired by occupancy, as has been formerly stated, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows, as a necessary consequence, that when I have once gained a rightful possession of any goods or chattels, either by a just occupancy or by a legal transfer, whoever, either by fraud or force, dispossesses me of them, is guilty of a transgression against the law of society, which is a kind of secondary law of nature. For there must be an end of all social commerce between man and man, unless private possession be secured from unjust invasions: and, if an acquisition of goods by either force or fraud were allowed to be a sufficient title, all property would soon be confined to the most strong, or the most cunning; and the weak and simple-minded part of mankind (which is by far the most numerous division) could never be secure of their possessions.
(26) The remedy by appeal was abolished by statute 59 Geo. III, c. 46, and an action for damages is now given by statute 9 and 10 Vic. c. 93 See note p. 119, ante.
The wrongful taking of goods being thus most clearly an injury, the next consideration is, what remedy the law of England has given for it. And this is, in the first place, the restitution of the goods themselves so wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin, (1) an institution which the Mirror, (c) ascribes to Glanvil, chief justice to King Henry the Second. This obtains only in one instance of an unlawful taking, that of a wrongful distress: and this, and the action of detinue (of which I shall presently say more) are almost the only actions in which the actual specific possession of the identical personal chattel is restored to the proper owner. For things personal are looked upon by the law as of a nature so transitory and perishable, that it is for the most part impossible either. to ascertain their identity, or to restore them in the same condition as when they came to the hands of the wrongful possessor. And since it is a maxim that "lex neminem cogit ad vana, seu impossibilia," it therefore *contents itself in general with restoring, not the thing itself, but a pecuniary [*146 ] equivalent to the party injured; by giving him a satisfaction in damages. But in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distrainor; and therefore they may not only be identified, but also restored to their first possessor, without any material change in their condition. And being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distrainor has a remedy in damages, either by writ of rescous, (d) in case they are going to the pound, or by writ de parco fracto, or pound-breach, (e) in case they were actually impounded. He may also, at his option, bring an action on the case for this injury: and shall therein, if the distress were taken for rent, recover treble damages. (f) The term rescous is likewise applied to the forcible delivery of a defendant, when arrested, from the officer who is carrying him to prison. In which circumstances the plaintiff has a similar remedy by action on the case, or of rescous: (g) (2) or, if the sheriff makes a return of such rescous to the court out of which the process issued, the rescuer will be punished by attachment. (h)
An action of replevin, the regular way of contesting the validity of the transaction, is founded, I said, upon a distress taken wrongfully and without sufficient cause: being a redelivery of the pledge, (i) or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it if the right be adjudged against him (7) after which the distrainor may keep it, till tender made of sufficient amends; but must then redeliver it to the owner. (k) And formerly, when the party distrained upon intended to dispute the right of the distress, he had no other process by the old common law than by a writ of replevin replegiari facias; (1) which issued out of chancery, commanding the sheriff to deliver the distress to the owner, and *aftewards to do justice in respect of the matter in dispute in his own county court.
(1) Replevin is the universal remedy in the United States where chattels have been wrongfully taken or are wrongfully detained from the plaintiff, and he seeks to recover them in specie instead of a satisfaction in damages. It is a statutory action, and the statutes are considerably variant. The plaintiff must have either a general or a special property in the chattels. Speaking generally we may say that the plaintiff is required to show his right by affidavit when he sues out the writ; that the officer seizes the property, if to be found, and delivers it to the plaintiff, on receiving bond with sureties for its return in case the action is not sustained; that if the plaintiff recovers in such cases, he takes judgment for any damages he may have proved, while if the plaintiff is defeated, the defendant takes judgment either for a return of the property, or for its value, together with such damages as he may have shown. But if the officer does not find the property, so that it may be delivered to the plaintiff, the case nevertheless proceeds to judgment, and if the plaintiff recovers, he may, at his option. have the proper writ for its delivery in execution.
(2) The action of rescous has fallen into disuse, and it is usual now to bring an action on