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that the executor was intended to have the residue, he shall be deemed by a court of equity a trustee for such next of kin. The residue is to be distributed according to the direction of the 22 & 23 Car. 2, c. 10, which enacts that the surplusage of intestate's estates (except femes covert, which by the 29 Car. 2, c. 3, s. 25, shall go to the husband as her administrator) shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: one third to the widow, and the residue in equal proportions to the children; or if dead, to their representatives or lineal descendants. If there are no children or legal representatives living, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree, and their representatives. If no widow, the whole shall go to the children. If neither widow nor children, the whole shall be distributed among the next of kin in equal degree, and their representatives; but no representatives are admitted among collaterals, farther than the children of the intestate's brothers and sisters. The next of kindred are to be investigated in the same manner as with respect to letters of administration, namely, according to the computation of the civilians, including the relations both on paternal and maternal sides. A father shall succeed to all the personal estate of his children who die intestate without wife or issue; but by the 1 Jac. 2, c. 27, if the father be dead, the mother and each of the remaining children, or their representatives, shall divide the effects in equal portions. If the intestate leaves a widow, but no next of kin, one moiety only belongs to the widow, and the other shall go to the Crown (i). It is, however, further enacted by the statute of distributions, that no child of the intestate, except his heir at law, on whom he settled

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in his life-time any estate in lands, or to whom he gave any pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters; but if such settlement or portion be unequal, then the surplusage may be so distributed as to make all their shares equivalent (j).

CHAP. XXXIII.

CIVIL REMEDIES WITHOUT SUIT.

[See 3 Black. Com. chaps. 1 & 2; 3 Steph. Com. Bk. V. chaps. 1 & 2.]

Having considered two of the four heads into which we divided this work (p. 37), we now proceed to the third head, namely, civil injuries, or private wrongs as they are called, by way of distinguishing them from public wrongs or crimes.

Private wrongs, or civil injuries, are an infringement, or privation, of the civil rights of individuals, considered as individuals, for which the laws of England give redress. I, By the mere act of the parties; 2, By the mere operation of law; and 3, By suits or actions in courts. The two former will be considered in the present chapter.

Self-defence.]-The first instance of remedy by the mere act of the parties is self-defence; as where any one, his wife, child, or (as some hold, p. 117) servant, is attacked in person or property, it is lawful for such a one to repel force by force, and the breach of peace is chargeable upon him who was the primary aggressor; but this resistance must not exceed the bounds of defence and preven

RECAPTION, ETC.

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tion; for if it does, the defender himself becomes the aggressor (a).

Recaption.]-Recaption or reprisal is a species of remedy by the mere act of the party injured, as where one wrongfully detains another's personal chattels, or wife, child, or servant, in which case the latter may lawfully claim and retake them, wherever he happens to find them, so as it be not in a riotous manner, or attended with a breach of the peace. It is not justifiable for any one to break open a door to recover personal property, unless they have been feloniously stolen (7).

Entry.]-Another similar remedy with respect to lands is that by entry, which now, however, is fallen into disuse, particularly since 3 & 4 Will. 4, c. 10, s. 10, by which a mere entry is not to be deemed a possession to save the statute of limitations. A peaceable entry may, it seems, be made by a landlord after the expiration of the tenant's interest. But forceable entries and detainers are punishable under several statutes.

Abatement.]-Abatement is another remedy sanctioned by law; this happens where one places a nuisance to the annoyance of another; the latter may quietly remove it (c).

Distresses.]-A distress is the act of seizing goods for rent, for damages, or for some dues by statute; also the act of seizing heriots.

Some chattels are exempt from distress, such as animals feræ naturæ; yet if deer are kept in a private enclosure for sale or profit they may be distrained upon for rent. Whatever is in the personal use or occupation of a man is for the time privileged;

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as an axe with which he is cutting wood, or a horse whilst any person is riding for damage feasant (d). Valuable things in the way of trade shall not be liable to distress, as a horse standing in a smith's shop to be shoed, or in a common inn, or cloth at a tailor's house, corn sent to a mill or market, cattle when placed for a night to agist when on their way to market 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 or premises, but to his customers (e). But cattle that are placed by consent of the owner to agist for a time, or in public livery stables, under the care of one who is distrained upon, are subject to distraint (f). Indeed the general rule is, 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; and where a stranger's goods are distrained upon, his remedy is by action on the case against the tenant.

Nothing shall be distrained upon which may not be rendered back in as good plight as when taken, for a distress is to be considered as a mere pledge. Things affixed to the freehold are not distrainable (g). As a general rule nothing can be distrained which is not on the premises, but by the 11 Geo. 2, c. 19, a landlord may distrain any goods of his tenant carried off the premises clandestinely (after the rent is due), wherever he finds them, within thirty days after, unless they have been sold for a valuable consideration and all persons privy to, or assisting in, such fraudulent conveyance, forfeit double the value to the landlord: and if the value of the goods so removed be less than £50, then double the value may be recovered before two neighbouring justices of the peace.

When a distress is levied, the goods or cattle dis

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