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wife; aduitery, or criminal conversation with her, and beating or other wise 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 (1). This action lay at the common law; and thereby the husband shall recover, not the pos. session (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 therefore have this action (w); and the husband is also en. titled 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 (w). 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. 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 (6). 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 wise, 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 (0)
II. Injuries that may be offered to a person considered in the relation (!) F. N. B. 89.
(u) 2 Inst. 434..
(z) Bro. Abr. 207. 440.
with the defendant; though perhaps having nf loose conduct, and notoriously bad charac aid a foundation, by proving her being ac. ter; that she made the first overtures and ad quainted with other men, such general evi- rances to the defendunt, 2 Esp. R. 562. dence may be admitted. Stark. on Evid. 2 Sel. N. P. 25. that his means and expecta con rol. 244. n. For the same purpose he may are incor.siderable. wao give in evidence, that she was a woman
of a parent (27) were likewise of iwo 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 longe er 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 abduc. tion, 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 ihat 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.
(e) F. N. B. 90.
(d) Cro. Eliz. 770.
(27) See in general, Bac. Ab. Master & whom she resides may maintain the action, U Servant, O. Selw. N. P. Master & Servant. East, 24. 5 East, 45.2 T. R. 4. and the jury It has been disputed, but the better opinion is, are not limited in their verdict to the mere loss that the father has an interest in his legiti- of service. 11 East, 24. The daughter is a mate child, sufficient to enable him to support competent witness, 2 Stra. 1064. and though an action in that character, for taking the child not essential, the omission to call her would away, he being entitled to the custody of it. be open to observation. Holt's R. 451. ExCro. Eliz. 770.23 Vin, 451, ? P. W. 116. penses actually incurred should be proved, and 3 Co. 38.5 East, 221. No modern instance a physician's fee, unless actually paid, cannot however of such action can be adduced, and it be recovered. Starkie R. 287.' The state is now usual for the father to bring his action and situation of the family at the time should for any injury done to his child, as for de. be proved in aggravation of damages, 3 Esp. banching her, or beating hiin or her, in the R. 119; and if so, that the defendant profess. character of master, per quod servitium amisit, ed to visit the family, and was received as the in which case some evidence must be adduced suitor of the daughier. 5 Price, 641. It has of service. 5 T. R. 360, 1. See post, 142. been said, that evidence to prove that defendnote 29.
ant prevailed hy a promise of marriage, is inIn an action for debauching plaintiff's admissible. 3 Camp. 519. Peake L. E. 355. daughter, as his servant, it is necessary to See 5 Price, 641. 'And no evidence of the prove her residence with him, and some acts daughter's general character for chastity is of service, though the most trifling are suffi- admissible, unless it is impuned. Camp. cient. See 2 T. R. 167. 2 N. R. 476. 6 460.3 Camp. 519. The defendant may, in East, 387. It is unnecessary to prove any mitigation of damages, adduce any evidence contract of service. Pcake's R. 253. But if of the improper, negligent, and imprudent conthe seduction take place while she is residing duct of the plaintiff himself; as where he elsewhere, and she in consequence return to knew that defendant was a married man, and her father, he cannot maintain the action. 5 allowed his visits in the probability of a diEast, 45.t unless she be absent with his con- vorce, lord Kenyon held the action could not sent, and with the intention of returning, al. be maintained. Peake R. 240. And evidence though she be of age, ib. 47. n.; or if the de. may be given on an inquisition of damages in fendant engaged her as his servant, and in an action for seduction, that the defendant vj. duced her to live in his house as such, with sited at the plaintiff's house for the purpose intent to seduce her. 2 Starkie Rep. 493. If of paying his addresses to the daughter, with she live in another family, the person with an intention of marriage. 5 Price, 641.
+ In 1 Wendell, 447, it is decided that if the her. If she be under age, she is presumed a daighter be of age she must be in her father's be under his control and protection so as to enService, so as to constitute in law and in fact title him to the action, whether she actually the relation of master and servant, in order to resides with him or not. entirle her father to an action for seducing
III. rtf a similar nature to the last is the relation of guardian and ward. and the likn 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 serrice 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 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 daIrage he has sustained by the beating of his servant, per quod servitium amisit (n); and then the jury will make him a proportionable pecuniary satisTaction (29). And similar practice to which, we find also to have obtained (5) F. N. B. 139.
(k) 2 P. Wms. 108. (g) Tbid,
(I) F. N. B. 107. (h, Ilale on F. N. B. 139.
(mn) Ibid. Winch. 51. (i, F. N. B. 139.
(n) 9 Rep. 113. 10 Rep. 330. (28) 2 R. S. 150, 93.
core his child. 5 East, 45. 6 East, 391. 11 (29) Even in case of debauching, beating, East, 23. Sir T. Raym. 259. And if it apor injuring a child, the father cannot sue with pear in evidence that the child was of such out alleging and proving that he sustained iender years as to be incapable of affording some loss of service, or at least that he was any assistance, then he cannot sustain any acobliged to incur expense in endeavouring to tion. The rules and principles in support of
among the Athenians; where masters were entitled to an action agains: 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 dins solution of either the relation itseif, or at least the advantages accruing there from: while the loss of the inferior by such injuries is totally unregarded One reason for which may be liris : 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 wise 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 natare of a civil satisfaction ; which is called an appeal (31), and which will be considered in the next book. And so the servant, whose inaster is dia, abled, does not thereby lose his maintenance or wayes. He had no property in his master ; and if he receives his part of the stipulated contrach, he suffers no injury, and is therefore entitled to no action, for any battery or imprisonment which such master may happen to endure.
(o) Pott. Antiq. b. 1, c. 26.
this doctrine were elucidated in the recent action for seduction which is in most general case of Hall y. Hollander, decided 14th No. use, viz. a per quod servitium amisit, the father vember, 1825, M. T., and in which the plain. must prove that his daughter, when scduced, tiff declared in trespass, for driving a chaise actually assisted in some degree, however in. on the highway against plaintiff's son and considerable, in the housewifery of his famiservant, by means whereol he was thrown ly; and that she has been rendered less ser down, and his skull fractured.
viceable to him by her pregnancy; or the ac The lord chief justice was of opinion that tion would probably be sustained upon the evi the action could not be maintained in this dence of a consumption or any other disorder, form, inasmuch as the declaration was found-contracted by the daughter, in consequence of ed upon the loss of the services of a child her seduction, or of her shame and sorrow for who, from his tender years, (being only two the violation of her honour. It is immaterial years of age), was incapable of performing what is the age of the daughter, but it is nė. any acts of service, and therefore directed à cessary that at the time of the seduction she nonsuit : which was confirmed by the court. should be living in, or be considered part of See, however, note (t) p. 140, ante.
her father's family. 4 Burr. 1878. 3 Wils. (30) It appears to be a remarkable omission 18. It should seem that this action may be in the law of England, which with such scru- brought by a grandfather, brother, uncle, aunt, pulous solicitude yuards the rights of indivi. or any relation under the protection of whom duals, and secures the morals and good order in loco parentis, a woman resides ; especially of the community, that it should have afforded if the case be such that she can bring no ac. so little protection to fernale chastity. It is tion herself; but the courts would not permit true that it has defended it by the punishment a person to be punished twice by exemplary of death from force and violence, but has left damages for the same injury. 2 T. R. 4. it exposed to perhaps greater danger from the Another action for seduction is a common artifices and solicitations of seduction. In no action for trespass, which may be brought case whatever, unless she has had a promise when the seducer has illegally entered the fa. of marriage, can a wonan herself obtain any ther's house; in which action the debanohing reparation for the injury she has sustained his daughter may be stated and proved as an from the seducer of her virtue. And even aggravation of the trespass. 2 T. R. 166. where her weakness and credulity have been Or where the seducer carries off the daughter imposed upon by the most solemn promises of from the father's house, an action might be marriage, unless they have been overheard or brought for enticing away his servani, though made in writing, she cannot recover any com. I have never known an instance of an action pensation, being incapable of giving evidence of this nature. in her own cause. Nor can a parent maintain In the two last-mentioned actions the se. any action in the temporal courts against the duction may be proved, though it may not person who has done this wrong to his fami. have been followed by the consequences of ly, and to his honour and happiness, but by pregnancy. stating and proving, that from the consequen- These are the only actions which have been ces of the seduction his daughter is less'able extended by the modern ingenuity of the to assist kim as a servant, or that the seducer courts, to enable an unhappy parent to recover in the pursuit of his daughter was a trespass. a recompense, under certain circumstances, er upon his premises. Hence no action can for the injury he has sustained by the seduc be maintained for the seduction of a daughter, tion of his daughter. which is not attended with a loss of service (31) Now abolished by statute 59 Geo 116 or an injury to property. Therefore, in that c. 46.
OF INJURIES TO PERSONAL PROPERTY.
In the preceding chapter we considered the wrongs or injuries that af fected 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 moveable 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 immoveable ; 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 (6).
1. 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
delaining them, though the original taking might be lawful. (*145] *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 neces. sary 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 on injury the la' See book II. chap ?
(s) Book II. chap. 25.