CHAPTER I. of rights, INJURIES, AND REMEDIES, IN GENERAL. nature of rights, injuries and remedies in general. A PARTY who considers himself about to be, or to have Necessity for been injured by the conduct of another, naturally wishes to ascertaining the adopt the best means to prevent or remove the injury, or to enforce specific relief, or performance, or compensation, or punishment for its commission; on the other hand, the party resisting the claim wishes to know whether he can do so effectually, and by what means; for these purposes, each of these parties, complainant and defendant, or at least his professional adviser, must well consider the law affecting the asserted right and the nature of the injury or offence, and the remedies or punishments, before he can safely take any step, whether precautionary, offensive or defensive, or he may find himself in error, and perhaps that he has, although unintentionally, become a wrong-doer by adopting some illegal, irregular or injudicious course, and will sometimes not only incur great and useless expense,, but frequently lose all redress. Independent of the process of the courts, there are many cases in which a person may clearly, by his own act, prevent or remove an injury, or obtain satisfaction, and which may be known to all members of society; as, for instance, every one knows that he may resist an assault or direct attack upon his person by self-defence. But the great variety of the remedies by acts of the parties themselves, and of the modes or degrees of resistance or prevention without legal process, are but little known; and in many cases the summary remedies by the intervention of legal assistance, and the modes of applying them, are still less known, and are frequently mistaken or attended with danger of excess; and much judgment is required in the choice of one of several remedies, by the intervention of legal authority and in the modes of conducting them, and many of them are accompanied with technical difficulties. The object of the following pages is to enumerate and remove them. B CHAP. I. of rights, injuries and reme dies. In most civilized countries the laws made for protecting the NECESSITY, &c. public interests of the society at large, and the private rights General divison of individuals composing it, have been judiciously classed and arranged under certain distinct heads, as, 1st, Rights; 2d, Injuries; and 3dly, Remedies. Rights and duties have again been divided into those which are private, or belonging to particular individuals; and public, those which belong to society at large. Injuries (in jus) or offences, also, as well as their remedies, naturally follow the same divisions and arrangement. These several rights, injuries, and remedies, are all subject to numerous modifications and varieties, and the rules respecting them are multifarious. In the present chapter we will take a concise view of the principles and rules which affect rights, injuries and remedies in general; and in the three next immediately following chapters will be given a practical view of each right and its particular injuries and remedies, with some suggestions with respect to the conduct advisable to be pursued in cases of difficulty that frequently arise. We shall then be prepared for the consideration of the still more practical parts of the subject. I. Of RIGHTS, PRIVATE, in GENERAL. 1. PUBLIC RIGHTS. Rights and Duties (the converse of each other), as recognized by law, (a) have always been divided into public and private. Some of each are founded upon the common law, others have been created or modified by statute. Public rights, when they relate to all society in general, are termed the rights or law of Nations; (b) and when they affect (a) There are many moral and religious rights and active or affirmative duties not recognized or enforced by municipal law, such as affection and kindness between husband and wife and children, education of children, and charity and benevolence to all mankind, &c. Those rights and duties which are recognized and enforced by law are termed perfect; those which are not so enforced, are termed rights and duties of imperfect obligation. See observations in Mellish v. Motteux, Peake's Rep. 115, 116; Pal. Mor. Ph. 3 vol. 4; 1 Bla. C. 123. The common law of England considers that many moral and religi ous affirmative duties are better left in their performance to the impulse of nature, and their violation to the censure of conscience and of society. But it has been observed, that as to negative duties it is otherwise, and that there is no act which Christianity forbids that the law will not reach, per Best, C. J., Bird v. Holbrook, 4 Bing. 641. Perhaps, however, that position is too largely laid down; no one will doubt that Christianity forbids a great variety of immoral and improper acts, but the breach of which is not punishable. (b) It will be observed that injuries against the rights and law of Nations are never cognizable in a municipal Court, but only by the King or some particular Court or persons particularly commissioned by the King to take cognizance of such injuries, as in the instance of our Prize Courts, under a particular commission. There is no proper international Court, and no action can in general be sustained in a municipal Court for a hostile capture or seizure; Elphinstone v. Bed cechemed, Knapp's Rep. 316 to 361; Caux v. Fden, Doug. 594; but the proceeding must be in the Admiralty under the special commission from the King. only a particular state or separate community, they are termed Municipal. The latter relate to God, religion, morality and decency; or to the king and royal family, and his prerogative, revenue and government; or to subordinate magistrates and other public officers; or they relate to the regulations of all the individuals, subjects of the country, as those respecting public justice, peace, trade, health and police, and the protections of all persons and their property; and the violations of, or injuries and offences to which, have the influence of bad example, and a tendency to be generally injurious to all members of the society. We shall find that in the observance of these public rights in general each individual has so far a private right or interest, that he may insist on and compel the observance, or cause the injury to be punished, by becoming a public prosecutor or accuser, but that in general this must be in the name of the King, or at least as on the behalf of the public society at large, or, in the case of pecuniary penalties for an offence, in the name of a common informer, either for himself and the King, or for himself and the poor of the parish, or as of late for the county rate, and seldom entirely for his own private and particular benefit. Some public rights, however, are also sometimes private, so that any individual who happens to be particularly interested or injured may act for himself, and have his private remedy as well as prosecute for the benefit of the community; (c) and therefore rights of this nature will throughout this work be considered at the same time that mere private rights are examined, though strictly they might more properly belong to a work on criminal law. CHAP. I. RIGHTS, &c. Private rights (including their converse duties) are those 2. PRIVATE which appertain to a particular individual or individuals, and RIGHTS. relate either to the person or to personal or real property; and First, Of Person. the first respect either his own particular person, as personal security of his life, body and limb, health and reputation, or his personal liberty; or they regard his interest in some particular relation (being termed his relative rights,) as to his wife, child, ward, apprentice, or servant. His duties towards them constitute their rights or claims upon him. And see Hill v. Reardon, 2 Sim. & Stu. 431. But this rule does not extend to take away the jurisdiction of the Court of Chancery, where a person, in whose favour an adjudication has been made, is affected by a trust or by fraud, that Court then having jurisdiction to enforce the trust or relieve against the fraud. Same (c) The Mayor of Lyme Regis v. Henley, CHAP. I. RIGHTS, &C. Secondly, Rights to Personal Property. The rights to personal property involve the consideration of the nature of the thing itself, and the extent of the interest therein, and the modes by which the rights thereto may be acquired and transferred. There are certain peculiar properties affecting most personal property, and which render it in legal estimation inferior to real property, and consequently distinguish it in various important respects. These are, principally, that it gives no right to vote on various occasions, as real property does: secondly, that property in personal chattels may be originated or created without any written document, and that it may be alienated or transferred from one to another by mere delivery or verbal assignment, without title-deeds; whereas in general some deed or written document is essential to the transfer of real property: thirdly, the whole interest in most tangible personal property may be taken in execution and sold, when at most only a part of the annual value of real property can be taken by a single creditor: fourthly, upon death the legal interest passes to the executor or administrator of the owner; whereas real property descends to the heir, unless legally devised: fifthly, if felony be committed by the owner, the whole of his personal property is forfeited; whereas only the profits of his real estate is forfeited during his life, and upon his death it descends to his heir. These are only a few of the leading distinctions; sufficient, however, to establish the importance of the division. The term personalty includes every thing moveable, whether animate or inanimate, when the law considers them to be the subject of property, and sometimes things quasi moveable, as tenants' fixtures; and whether tangible or not, such as choses in action, or things which cannot be beneficially obtained without suit; and there are some description of interests which, though connected with and issuing out of realty, yet, being temporary and only for years, are considered merely as personalty, such as leases for years. So canal shares are in general only personal property, and therefore give the owner no right to vote for a member of parliament; (d) though sometimes shares in bridges, rivers, &c. are real property. (e) So because a company, having only the navigation of a river, have no interest in the soil or realty, they are not rateable to the relief of the poor, although they have a dam erected in the river. (ƒ) Like real property, the interest in personalty may (d) Hollis v. Goldfinch, 1 Bar. & Cres. 205; King v. Thomus, 9 Bar.& Cres. 114, acc.; but see Buckridge v. Ingram, 2 Ves. 651; Howe v. Chapman, 4 Ves. 542, contrâ. (e) Rogers on Elections, 27. 3 Bar.& Adol. 139. be either absolute for ever, or only temporary for life or for years, or it may be solely in one person, or in several as joint tenants or tenants in common; or with respect to the time of enjoyment it may be in possession or in remainder or reversion; and the modes of creating or transferring it are various, viz. by mere possession, (generally sufficient against all wrong-doers,) or by prerogative or forfeiture, by custom, by gift or grant, by bankruptcy, by will or testament, or under the statute of distribution, but principally by contracts, which, though formerly otherwise, has now become by far the most frequent and important ground of claim to personal chattels, and to debts and damages for the nonperformance of contracts. CHAP. I. RIGHTS, &C. perty. The rights to real property are various, as regards, first, the Thirdly, Rights subject-matter or nature of the thing itself; as whether it be corporeal or tangible, or incorporeal or nontangible: corporeal being houses, lands, and every other visible, tangible and immoveable property; and the latter or incorporeal being a property which cannot in general be touched, and has no corpus; such as rights of common, or rights of way and other easements, and rights which, though they may be enjoyed in, upon, over or relating to land or other corporeal property, yet in consideration of law constitute no right to the land itself. There is also one description of property connected with land which may be either real or personal property, depending on the statute which creates it; as canal shares, which under some acts are real property, and under others mere personalty, although issuing in some respects out of land. (g) These distinctions will be found of the utmost practical importance, not only as they affect the modes of creating and transferring the right and the wrong, and remedies relating thereto, but also as regards the extent of the incidents connected with the property. Thus a person who has a freehold interest in houses or land, is entitled to vote in the election of a member to serve in parliament, as part of or appurtenant to the principal right; but not so the owner of a mere right of common or other easement, though perhaps it may in reality be much more valuable than the house or land, but which seems in general, by the terms of the original grant or by usage, limited in beneficial enjoyment to itself, and has no excrescent or collateral right or appurtenant growing out of the same. Real property, secondly, is to be regarded with respect to the tenure and quantity of interest, and principally whether (g) Buckeridge v. Ingram, 2 Ves. 652; and Hollis v. Goldfinch, 1 Bar. & Cres. 205; The King v. Thomas, 9 Bar. & Cres. |