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 ser

vant.

*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 times adultery was inquirable in tourns and leets, 3 Inst. 206. and punished by fine and imprisonment; and so recently as the commencement of the seventeenth century, attempts were made by the legislature to bring this offence within the pale of criminal jurisdiction;-but they were ineffectual. 5th vol. Parl. Hist. 88. During the commonwealth an act was passed, the provisions of which were, that adultery should be adjudged felony, "and every person, as well the man as the woman offending therein, should suffer death without benefit of clergy; provided that this should not extend, first, to any man who did not know at the time of such offence committed, that the woman was then married; or, 2dly, to any woman whose husband should be beyond the seas for three years, or reputed dead; or, 3dly, to any woman whose husband should absent himself for three years in any place, so as the wife should not know her husband to be living within that time." See Scobell's Acts, part 2. p. 121. fo. ed. But this law was not renewed at the restoration. The damages given to the husband are generally considerable, though lord Kenyon reprobated the idea that they were to be given so as to operate as a punishment. 5 T. R. 360. 4 Burr. 2059. 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 T. R. 655. 5 T. R. 360. 3 Wood. 24€. 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 ac

tion 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).

By statute, a wife leaving her husband and living in adultery with another shall lose her dower. 2 Inst. 436. The law considers the wife as incapable of consenting to a crim. cou. 7 Mod. 81. F. N. B. 89. On which account it is probable the usual remedy has been trespass vi et armis, and not merely case, 6 East, 387. Selw. N. P. 18. And the courts seem to have considered that whatever the form of the declaration may be, it is in effect case. Wils. 85. 6 East, 390. Bull. N. P. 28. The husband may not only bring an action for the criminal conversation, for which he shall be recompensed in damages, but may also proceed in the ecclesiastical courts for the adultery, and solicitation of chastity, and the proceedings in one court shall be no bar to the other. 4 Bac. Ab. 553. 1 T. R. 6.

2

Evidence. The evidence of the fact of adultery, which, from its very nature, is usually circumstantial, must be sufficient to satisfy the jury that an adulterous intercourse has actually taken place. Proof of familiarities, however indecent, is insufficient if there be reason to apprehend, from the fact of the parties being interrupted, or on any other circumstance, that a criminal conversation has not taken place. Stark. on Evid. 2 vol. 440. Where the statute of limitations has been pleaded, so as to exclude the recovery of damages for adulterous intercouse, which took place a greater distance of time than six years previ ous to the commencement of the action, it has been held, that anterior acts of adultery are evidence for the purpose of shewing the nature of the connexion which subsisted within six years. 8 St. Tr. 35. The confession of the wife will be no evidence against the defendant, Bull. N. P. 28. but a discourse between the wife and the defendant is evidence, as also are letters written by the defendant to the wife. Stark. on Evid. 2 vol. 441. The defendant may shew in mitigation of damages, that the wife had before eloped, or had been connected with others, that she had borne a bastard before marriage, Bull. N. P. 296. that she had been a prostitute previous to her connexion with the defendant, ib. 27; but it is there laid down, that the defendant cannot give evidence of the general reputation of her being, or having been, a prostitute, for that 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 (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 (z). 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. 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.

(u) 2 Inst. 434.

(w) Ibid.

(z) Law of nisi prius, 74.

(y) Bro. Abr. t. trespass, 213.

with the defendant; though perhaps having laid a foundation, by proving her being acquainted with other men, such general evidence may be admitted. Stark. on Evid. 2 vol. 244. n. For the same purpose he may also give in evidence, that she was a woman

(z) Bro. Abr. 207, 440.
(a) Law of nisi prius, 26.

(b) Burr. 2057.

(c) Cro. Jac. 501. 538.

of loose conduct, and notoriously bad character; that she made the first overtures and advances to the defendant, 2 Esp. R. 562. 1 Sel. N. P. 25. that his means and expectations are inconsiderable.

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.

(d) Cro. Eliz. 770.

(27) See in general, Bac. Ab. Master & Servant, O. Selw. N. P. Master & Servant. It has been disputed, but the better opinion is, that the father has an interest in his legitimate child, sufficient to enable him to support an action in that character, for taking the child away, he being entitled to the custody of it. Cro. Eliz. 770. 23 Vin. 451. 2 P. W. 116. 3 Co. 38. 5 East, 221. No modern instance however of such action can be adduced, and it is now usual for the father to bring his action for any injury done to his child, as for debauching her, or beating him or her, in the character of master, per quod servitium amisit, in which case some evidence must be adduced of service. 5 T. R. 360, 1. See post, 142. note 29.

6

In an action for debauching plaintiff's daughter, as his servant, it is necessary to prove her residence with him, and some acts of service, though the most trifling are sufficient. See 2 T. R. 167. 2 N. R. 476. East, 387. It is unnecessary to prove any contract of service. Peake's R. 253. But if the seduction take place while she is residing elsewhere, and she in consequence return to her father, he cannot maintain the action, 5 East, 45.† unless she be absent with his consent, and with the intention of returning, although she be of age, ib. 47. n. ; or if the defendant engaged her as his servant, and induced her to live in his house as such, with intent to seduce her. 2 Starkie Rep. 493. If she live in another family, the person with

+ In 1 Wendell, 447, it is decided that if the daughter be of age she must be in her father's service, so as to constitute in law and in fact the relation of master and servant, in order to entitle her father to an action for seducing

(e) F. N. B. 90.

whom she resides may maintain the action, 11 East, 24. 5 East, 45. 2 T. R. 4. and the jury are not limited in their verdict to the mere loss of service. 11 East, 24. The daughter is a competent witness, 2 Stra. 1064. and though not essential, the omission to call her would be open to observation. Holt's R. 451. Expenses actually incurred should be proved, and a physician's fee, unless actually paid, cannot be recovered. 1 Starkie R. 287. The state and situation of the family at the time should be proved in aggravation of damages, 3 Esp. R. 119; and if so, that the defendant professed to visit the family, and was received as the suitor of the daughter. 5 Price, 641. It has been said, that evidence to prove that defendant prevailed by a promise of marriage, is inadmissible. 3 Camp. 519. Peake L. E. 355. See 5 Price, 611. And no evidence of the daughter's general character for chastity is admissible, unless it is impugned. 1 Camp. 460. 3 Camp. 519. The defendant may, in mitigation of damages, adduce any evidence of the improper, negligent, and imprudent conduct of the plaintiff himself; as where he knew that defendant was a married man, and allowed his visits in the probability of a divorce, lord Kenyon held the action could not be maintained. Peake R. 240. And evidence may be given on an inquisition of damages in an action for seduction, that the defendant visited at the plaintiff's house for the purpose of paying his addresses to the daughter, with an intention of marriage. 5 Price, 641.

her. If she be under age, she is presumed to be under his control and protection so as to entitle him to the action, whether she actually resides with him or not.

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 (h). 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 (1). 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 satis faction (29). 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) (30).

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 [*143] the inferior can suffer no loss or injury. The wife cannot recover damages for beating her husband, for she hath no separate interest in any thing during her coverture. The child hath no property 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 (31), and which will

(0) Pott. Antiq. b. 1, c. 26.