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 re mediable 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. (a) 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. In an action for debauching plaintiff's daughter, as his servant, 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 + 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, 641. 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 appli ed 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 satisfaction (29). And similar practice to which, we find also to have obtained (f) F. N. B. 139. (g) Ibid. (h) Hale on F. N. B. 139. (i) F. N. B. 139. (28) 2 R. S. 150, § 3. (29) Even in case of debauching, beating, or injuring a child, the father cannot sue with out alleging and proving that he sustained some loss of service, or at least that he was obliged to incur expense in endeavouring to (k) 2 P. Wms. 108. (1) F. N. B. 167. (n) 9 Rep. 113. 10 Rep. 330. 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 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. this doctrine were elucidated in the recent case of Hall v. 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. See, however, note (†) p. 140, ante. (30) 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 trespass er 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 circumstances, for the injury he has sustained by the seduction of his daughter. (31) Now abolished by statute 59 Geo. III. c. 46. 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. CHAPTER IX. OF INJURIES TO PERSONAL PROPERTY. IN the preceding chapter we considered the wrongs or injuries that affected 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 (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 ownThe former, or deprivation of possession, is also divisible into two branches; the unjust and unlawful taking them away; and the unjust er. detaining 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 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 (a) See book II. chap. 2. (b) Book II. chap. 25. 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 effected by action of replevin (1), (2); an institution, which (1) See in general, Com. Dig. Replevin; Bac. Ab. Replevin and Avowry; Vin. Ab. Replevin; Gilbert on Distresses, by Hunt; Bradby on Distresses; Selw. N. P. 1155. and Wilkinson on Replevin; and see, as to distresses, the notes ante, 5 to 10. A replevin in general lies only for goods and chattels, and it cannot be maintained for taking and removing things affixed to the free hold, even though wrongfully separated therefrom by the defendant. Co. Lit. 146. b. 4 T. R. 504. But growing crops may be considered in the nature of goods and chattels, being under 11 Geo. II. c. 19. distrainable; therefore where a replevin bond was to prosecute for taking goods, chattels, and growing crops, and in the declaration it was set out as to prosecute for taking "goods and chattels," it was held to be no variance. 7 Moore, 231. 1 Bing. 6. It is said by the learned Commentator in the text, that the action of replevin obtains only in one instance of an unlawful taking, that of a wrongful distress. But lord Redesdale remarked in 1 Sch. & Lef. 327. that this definition is too narrow, and many old authorities will be found in the books, of a replevin where there had been no distress. See Vin. Ab. Replevin, B. & C. 2. Com. Dig. Replevin. Replevin is now seldom brought but for distresses for rent, damage-feasant, poor's rate, &c. Com. Dig. Action, M. 6. It may certainly be brought to try the legality of a distress for rent, provided there were no sum whatever in arrear, 5 T. R. 248. n. c. 3 B. & P. 348; but if any sum, however small, were due, and the distress were for a greater sum, or excessive, or otherwise irregular, the remedy must be by action on the case. 1 Hen. Bla. 13. Replevin lies also for an illegal distress taken damage-feasant; and when the party in possession of the (2) In New-York the remedy by replevin has been greatly enlarged by the Revised Statutes, and it now extends, except in the cases specified in the act, to any wrongful taking or detention of the goods or chattels of another. Executors may maintain this action for goods wrongfully taken, whenever they could maintain trespass by statute. But replevin does not lie for property taken under a warrant for the collection of a tax, assessment, or fine, in pursuance of a statute: nor at the suit of the defendant in an execution or attachment for goods taken by virtue thereof, unless they are exempt by law from execution, &c. nor at the suit of any other person, unless he has at the time a right to reduce the goods into his possession. The writ cannot be executed until an affidavit is annexed to it, showing that the case does not come within any of the above exceptions, and until the plaintiff and two sureties executes a bond in double the value of the property conditioned to prosecute the suit with effect and without delay, and to return VOL. II. 18 land has no title thereto, this action is preferable to trespass for seizing the cattle, in order to put in issue the title of the party distrainign. 1 Saund. 346. c. n. 2. So, to try the legality of a distress for poor rates, 3 Wils. 442. 1 Salk. 205. 6 East, 283. 2 Bla. Rep. 1330. 1 Burr. 585. Willes, 672. b; or of one of the several rates where the distress warrant includes a supposed arrear of several rates, 2 Moore, 417; or for sewer's rate, 6 T. R. 522. Hardw. 478. Com. Dig. Pleader, K. 26. Willes, 672. n. b. ; or for a heriot, &c. Cro. Jac. 50. But if a superior court award an execution, it seems that no replevin lies for the goods taken by the sheriff by virtue of the execution, and if any person should pretend to take out a replevin, the court would commit him for a contempt of their jurisdiction, Gilb. Rep. 161. Willes, 672. n. b. 2 Lutw. 1191. 3 Lev. 204. 2 Stra. 1184; and where goods are taken by way of levy, as for a penalty on a conviction under a statute, it is generally in the nature of an execution, and unless replevin be given by the statute this action will not lie, the conviction being conclusive, and its legality not questionable in replevin, 2 New. Rep. 399. Bac. Ab. Replevin, (C) Com. Dig. Action, M. 6. Willes, 673. n. b. 1 Brod. & Bing. 57; but where a special inferior jurisdiction is given to justices, &c. and they exceed it in some cases, replevin lies. Willes, 672. n. b. This action is also maintainable for goods distrained under a warrant from commissioners authorized by act of parliament to levy rates for specific local purposes, with power of distress. 1 Swanst. 304. 1 B. & B. 57. The plaintiff ought to have either an absolute or special property in the goods in question, vested in him at the time of the taking. Bro. Bepl. pl. 8. 20. A mere possessory right the property if a return be adjudged, and to pay the amount that may be recovered. The sheriff then delivers the property to the plaintiff, and gives notice to the defendant thereof, and of the time at which he is to appear in court to resist the plaintiff's claim. The sheriff, after demand of delivery of the goods, may break open any house in which they are concealed. If he cannot obtain the goods, he arrests the defendant until he enters into bond with two sureties to abide the order of the court, and to put in special bail. If the defendant claims property in the goods, and pays to the sheriff his fees and the fees of a jury to try the claim, he may have his title tried before such jury; and in the meantime the goods remain in the custody of the sheriff. If the jury find for the defendant, he receives back again the goods: if the jury find for the plaintiff, the plaintiff, on refunding the expenses and indemnifying the sheriff, receives the goods. See the other proceedings, 2 R. S. 522, &c. |