munity; 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 principally to be sought by application to these *courts of justice; that [ *3] 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 immediate justice, to which he *is prompted by nature, [*4] and which no prudential 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 (d) 2 Roll. Abr. 546. 1 Hawk. P. C. 131. (1) In the defense 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 v. 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 cannot 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 protec tion. 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 Hinton v. State, 24 Texas, 454; Schnier v. People, 23 Ill., 17; Patten v. People, 18 Mich., 814. 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 employ force to quell the riot that he would have had to defend his mother against an actual attack upon her person. lengths of rapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Selfdefence, 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 occa sion strife and bodily contention, or endanger the peace of society. If, [*5] 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. This depends in some measure on like 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. (3) What nuisances are, and their several (e) 8 Inst. 134. Hal. Anal. § 46. (f) 2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566. (2) A man may not 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 Johns., 406; and his attempt to do so may be resisted by force. Newkirk v. Sabler, 9 Barb., 652. (3) 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 state permission 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. 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, só 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) [*6] *And the reason why the law allows this private and summary method 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 immedi ate remedy, and cannot wait for the slow progress of the ordinary forms of justice. 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; or, distraining another's cattle, damage-feasant, 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 [*7] arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do suit to the lord's court, () or other certain personal service, (m) the lord may distrain of com (g) 5 Rep. 101. 9 Rep. 55. The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress. (k) Book II. ch. 3. (m) Co. Litt. 46. (1) Bro. Abr. tit. Distress, 15. 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 interstate commerce, in which case the regulations which congress might prescribe would be su preme. See Columbus Ins. Co. v. Peoria Bridge Co., 6 McLean, 70; 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 exercising the right to abate, as little injury is to be done as possible. Moffet 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; State v. Paul, 5 R. I., 185; Ely v. Supervisors, 36 N. Y., 297; Miller v. Burch, 32 Texas, 208; S. C., 5 Am. Rep., 242; though if the occupation is such as to breed disease, it has been held that it might be destroyed if necessary. Meeker v. 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., 593; Indianapolis v. Miller, 27 Ind, 394. The abatement must be without doing unnecessary injury. Roberts v. Rose, L. R. 1 Exch., 82; Indianapolis v. Miller, 27 Ind., 394. mon 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, damage-feasant; that is, doing him hurt or damage, by treading down his grass, or the like; in which case the owner of the soil may distrain 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, (o) 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 (7) are partly analogous to the ancient distress at common law, as being repleviable and the like; but more resembling the common law process of execu tion, by seizing and selling the goods of the debtor under a writ of fieri facias, of which hereafter. 2. Secondly; as to the things which may be distrained, or taken in distress, we may lay it down as a general rule that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead, therefore, of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular exemptions. (r) And, 1. As every thing which is distrained is presumed to be the property of the wrongdoer, it will follow that such things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and *all animals feræ naturæ) cannot be distrained. Yet if deer (which are fera natura) are kept in a [*8] private inclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent. (s) Whatever is in the personal use or occupation of any man, is for the time privileged and protected from distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses drawing a cart, may (cart and all) be distrained for rent-arrere; and also, if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another's grounds, the horse (notwithstanding his rider) may be distrained and led away to the pound. (t) (4) Valuable things in the way of trade shall not be liable to distress. As a horse standing in a smith shop to be shoed, or in a common inn; or cloth at a tailor's house; or corn sent to a mill or market. For all these are protected and privileged for the benefit of trade; and are supposed in common presumption not to belong to the owner of the house, but to his customers. (5) But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant's default the (n) Brownl. 36. (0) Stat. 7 Ann. c. 10. (p) Stat. 43 Eliz. c. 2. (q) 1 Burr, 589. (t) 1 Sid. 440. (4) The court of king's bench, in Story v. Robinson, 6 T. R., 138, decided, contrary to this dictum, that such a distress could not be made, as it would lead to a breach of the peace. And see Field v. Adames, 12 Ad. and Ell., 649; Bunch v. Kennington, 1 Q. B., 679. As to what may and what may not be taken by distress, see Simpson v. Hartopp, Willes, 512, and the notes thereto, 1 Smith Lead. Cas., 187. (5) Upon the subject of exemptions from distress the following American cases are re ferred to: Himely v. Wyatt, 1 Bay, 102; Phaelon v. McBride, 1 Bay, 170; Youngblood v. Lowrey, 2 McCord, 39; Walker v. Johnson, 4 McCord, 552; Hoskins v. Paul, 9 N. J., 110; Brown v. Sims, 17 S. and R., 138; Stone v. Mathews, 7 Hill, 428; Connah v. Hale, 23 Wend., 462. These cases hold, generally, that wherever the tenant, in the regular course of his business, comes into possession of the goods of his customers, they are not subject to distress for his rent. See Riddle v. Welden, 5 Whart., 9. Many of the United States have, by statute, abolished the landlord's remedy by distress. chattels are distrained, so that he cannot render them when called upon. With regard to a stranger's beasts which are found upon the tenant's land, the following distinctions are however taken. If they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent-arrere by the landlord. (u) So also if the stranger's cattle break the fences, and commit a trespass by coming on the land, they are distrainable immediately by the lessor for his tenant's rent, as a punishment to the owner of the beasts for the wrong committed through his negligence. (v) But if the lands were not *sufficiently fenced so as to keep out cattle, the landlord [*9] cannot distrain them, till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have lain down and rose up to feed; which in general is held to be one night at least: and then the law presumes, that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds, without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distrainable for rent, till actual notice is given to the owner that they are there, and he neglects to remove them: (w) for the law will not suffer the landlord to take advantage of his own or his tenant's wrong. 4. There are also other things privileged by the ancient common law; as a man's tools and utensils of his trade, the axe of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station. So, beasts of the plough averia carucæ, and sheep, are privileged from distresses at common law; (x) while dead goods or other sorts of beasts, which Bracton calls catalla otiosa, may be distrained. But as beasts of the plough may be taken in execution for debt, so they may be for distresses by statute, which partake of the nature of executions. (y) And perhaps the true reason why these and the tools of a man's trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its non-payment: and therefore, to deprive the party of the instruments and means of paying it, would counteract the very end of the distress. (z) 5. Nothing shall be distrained for rent, which may not be rendered again in as good plight as when it was distrained: for which reason milk, fruit and the like, cannot be distrained, a distress at *common law being only in the [*10] nature of a pledge or security, to be restored in the same plight when the debt is paid. So, anciently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal, but a cart loaded with corn might; as that could be safely restored. But now by statute 2. W. and M., c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained, as well as other chattels. 6. Lastly, things fixed to the freehold may not be distrained; as caldrons, windows, doors and chimney-pieces: for they savour of the realty. For this reason also corr growing could not be distrained; till the statute 11 Geo. II, c. 19, empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe. Let us next consider, thirdly, how distresses may be taken, disposed of or avoided. And, first, I must premise, that the law of distresses is greatly altered within a few years last past. Formerly, they were looked upon in no other light than as a mere pledge or security, for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distrainor has no other power |