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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 of a parent 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 [*141 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 I am inclined to think it was,) it still remains an injury, and is remediable by writ of ravishment or action of tres
(*) Burr. 2057.
(e) Cro. Jac. 501, 538.
(4) Cro. Eliz. 770.
24 See in general, Bac. Abr. 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. Wms. 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, 361.
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. 6 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 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, 641. And no evidence of the daughter's general character for chastity is admissible, unless it s 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. — CHITTY.
pass 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.(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 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 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 *142] 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 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 satisfaction.25 A similar practice to which we find also to have obtained among
25 Even in case of debauching, beating, or injuring a child, the father cannot sue without alleging and proving that he sustained some loss of service, or at least that he was obliged to incur expense in endeavouring to cure his child. 5 East, 45. 6 East, 391. 11 East, 23. Sir T. Raym. 259. And if it appear in evidence that the child was of such tender years as to be incapable of affording any assistance, then he cannot sustain any action. The rules and principles in support of this doctrine were elucidated in the recent case of Hall vs. Hollander, decided 14th November, 1825, M. T., and in which the plaintiff declared in trespass for driving a chaise on the highway against plaintiff's son and servant, by means whereof he was thrown down and his skull fractured.
The lord chief-justice was of opinion that the action could not be maintained in this form, inasmuch as the declaration was founded upon the loss of the services of a child who, from his tender years, (being only two years of age,) was incapable of performing any acts of service, and therefore directed a nonsuit; which was confirmed by the court.
the Athenians; where masters were entitled to an action against such as beat or ill treated their servants.(0)26
*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 [*143 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 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," 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 his 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.28
() Pott. Antiq. b. i. c. 26.
26 It appears to be a remarkable omission in the law of England, which with such scrupulous solicitude guards the rights of individuals and secures the morals and good order of the community, that it should have afforded so little protection to female chastity. It is true that it has defended it by the punishment of death, from force and violence, but has left it exposed to perhaps greater danger from the artifices and solicitations of seduction. In no case whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury she has sustained from the seducer of her virtue. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause. Nor can a parent maintain any action in the temporal courts against the person who has done this wrong to his family, and to his honour and happiness, but by stating and proving that from the consequences of the seduction his daughter is less able to assist him as a servant, or that the seducer, in the pursuit of his daughter, was a trespasser upon his premises. Hence no action can be maintained for the seduction of a daughter, which is not attended with a loss of service or an injury to property. Therefore, in that action for seduction which is in most general use, viz., a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that she has been rendered less serviceable to him by her pregnancy; or the action would probably be sustained upon the evidence of a consumption, or any other disorder, contracted by the daughter, in consequence of her seduction, or of her shame and sorrow for the violation of her honour. It is immaterial what is the age of the daughter; but it is necessary that at the time of the seduction she should be living in, or be considered part of, her father's family. 4 Burr. 1878. 3 Wils. 18. It should seem that this action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman resides, especially if the case be such that she can bring no action herself; but the courts would not permit a person to be punished twice by exemplary damages for the same injury. 2 T. R. 4.
Another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father's house; in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. 2 T. R. 166. Or where the seducer carries off the daughter from the father's house, an action might be brought for enticing away his servant,-though I have never known an instance of an action of this nature.
In the two last-mentioned actions the seduction may be proved, though it may not have been followed by the consequences of pregnancy.
These are the only actions which have been extended by the modern ingenuity of the courts to enable an unhappy parent to recover a recompense, under certain circumtances, for the injury he has sustained by the seduction of his daughter.-CHRISTIAN. 27 Now abolished, by statute 59 Geo. III. c. 46.—CHITTY.
The wife or the child, if the husband or parent were slain, had, indeed, until lately,
OF INJURIES TO PERSONAL PROPERTY.
*IN the preceding chapter we considered the wrongs or injuries that *144] affected the rights of persons, either considered as individuals, or as re
lated 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 per sonal 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
*145] 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 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 possessions 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. 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 *146] effected by action of replevin; 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 (•) C. 2, § 6.
(a) See book ii. ch. 2.
(*) Book ii. ch. 25.
a peculiar species of criminal prosecution allowed them, in the nature of a civil satisfaction, which was called an appeal. See Public Wrongs, vol. iv. c. 27. Ashford vs. Thornton, 1 B. & A. 405.
This is now abolished, (59 Geo. III. c. 46;) but they can recover damages for the injury sustained by the death of the husband or parent, under the 9 & 10 Vict. c. 93.— STEWART.
1 While the general rule in the United States accords with the law as established in England, that replevin, though not confined to cases of distress for rent, only lies where there has been an unlawful taking, (Pangburn vs. Patridge, 7 Johns. 140. Byrd vs. O'Hanlin, 1 Rep. Con. Ct. 401. Daggett vs. Robbins, 2 Blackf. 415. Wright vs. Armstrong, Brun. 130. Rector vs. Chevalier, 1 Missouri, 345,) yet in some of the States it is allowed and used as a remedy wherever one man claims goods in the possession of an
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 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 were 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) 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 re-delivery 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 :(j) after which the distrainor may keep it till tender made of sufficient amends; but must then re-deliver 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 afterwards to do justice in respect of the matter in dispute in his own countycourt. But this being a tedious method of proceeding, the beasts or other goods were long detained from the owner, to his great loss and damage.(m) For which reason the statute of Marlbridge(n) directs that (without suing a writ out of the chancery) the sheriff immediately upon plaint to him made shall proceed to replevy the goods. And, for the greater ease of the parties, it is further provided, by statute 1 P. & M. c. 12, that the sheriff shall make at least four deputies in each county, for the sole purpose of making replevins. Upon application therefore, either to the sheriff or one of his said
other and seeks to recover them specifically. Weaver vs. Lawrence, 1 Dall. 156. Cullum vs. Bevans, 6 Har. & J. 469.
It is either in the detinet or detinuit. Where the sheriff delivers the goods to the plaintiff the declaration is in the detinuit, and the plaintiff recovers only damages for the detention. In such case, if the defendant recover, there is a general verdict for the defendant and damages for the detention, on which there is a judgment pro retorno habendo and for the damages. Easton vs. Worthington, 5 Serg. & R. 130.. Where the goods are not delivered to the plaintiff, but are allowed to remain in the defendant's possession upon his claimi of property and giving a bond for their forthcoming, or where the goods have been eloigned, the declaration is in the detinet. The plaintiff recovers the value of the goods in damages; or, if the defendant recovers, it is by a general verdict in his favour. Bower vs. Tallman, 5 Watts & Serg. 556.-SHARSWOOD.