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when acquired, is strictly a perfonal right: yet as it's nature and original, and the means of it's acquifition or loss, fell more directly under our fecond general divifion, of the rights of things; and as, of courfe, the wrongs that affect thefe rights must be referred to the corresponding division in the prefent book of our commentaries; I conceive it will be more commodious and easy to confider together, rather than in a separate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property. And therefore I thall here conclude the head of injuries affecting the abfolute rights of individuals.

WE are next to contemplate thofe which affect their relatrue rights; or fuch as are incident to perfons confidered as members of fociety, and connected to each other by various ties and relations: and, in particular, fuch injuries as may [139] be done to perfons under the four following relations; hufband and wife, parent and child, guardian and ward, mafter and fervant.

I. INJURIES that may be offered to a perfon, confidered as a bufband, are principally three: abduction, or taking away a man's wife; adultery, or criminal converfation with her; and beating or otherwife abufing her. 1. As to the first sort, abduction or taking her away, this may be either by fraud and perfuafion, or open violence: though the law in both cafes fuppofes force and constraint, the wife having no power to confent; and therefore gives a remedy by writ of ravishment, or action of trefpafs vi et armis, de uxore rapta et abducta'. This adion lay at the common law; and thereby the husband fhall recover, not the poffeffion" of his wife, but damages for taking her away: and by ftatute Weft. 1. 3 Edw. I. c. 13. the offender fhall alfo be imprifoned two years, and be fined at the pleasure of the king. Both the king and the husband may therefore have this action; and the husband is also entitled to recover damages in an action on the cafe against such

F. N. B. Sg.

u 2 Inft. 434.

w Ibid.

as perfuade and entice the wife to live feparate from him without a fufficient caufe. The old law was fo ftrict in this point, that, if one's wife miffed her way upon the road, it was not lawful for another man to take her into his houfe, unless she was benighted and in danger of being loft or drowned y: but a ftranger might carry her behind him on horfeback to market, to a juftice of the peace for a warrant against her husband, or to the spiritual court to sue for a divorce 2. 2. Adultery, or criminal converfation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the fpiritual courts; yet, confidered as a civil injury, (and surely there can be no greater,) the law gives a fatisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are ufually very large and exemplary. But thefe are properly [140] increased and diminished by circumstances; as the rank and fortune of the plaintiff and defendant; the relation or connection between them; the feduction or otherwife of the wife, founded on her previous behaviour and character; and the husband's obligation by fettlement or otherwife to provide for those children, which he cannot but fufpect to be fpurious. In this cafe, and upon indictments for polygamy, a marriage in fact must be proved; though generally, in other cafes, reputation and cohabitation are fufficient evidence of marriage (12). 3. The third injury is that of beating a man's wife,

x Law of nifi prius. 74.
y Bro. Abr. t. trespass. 23.
z Ibid. 207. 440.

a Law of nifi prius. 26.

b Burr. 2057.

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(12) Evidence may be given in mitigation of damages, that the husband had criminal connections with other women, or that he was not accustomed to treat his wife with tenderness and affection, or that they did not live together upon terms of harmony or cordiality, for the jury muft collect, from a confideration of fuch circumftances, the extent of the wound which is given to the hufband's feelings and happiness. It is now fettled, that if the jury hould be convinced that the husband confented to the infamy of

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or otherwife ill-ufing her; for which, if it be a common af fault, 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 maltreatment be very enormous, so that thereby the husband is deprived for any time of the company and affiftance of his wife, the law then gives him a feparate remedy by an action of trefpafs, in nature of an action upon the cafe, for this ill-ufage, per quod confortium amifit, in which he thall recover a fatisfaction in damages, Cro. Jac. 501. 538.

his wife, they ought to find a verdict for the defendant. 4 T. R. 651. This is founded either upon the maxim valenti non fit injuria, or upon the confideration that the plaintiff as a profligate particeps criminis, appears under too unfavourable circumftances to receive any countenance or protection in a court of juftice. But if the husband's conduct does not prove actual confent, but only that degree of negligence or levity, which probably contributed to the feduction of his wife, it will not deprive him of a verdict, however it may leffen the damages. But he can maintain no action if he lives entirely feparated from his wife in confequence of a mutual agreement; for the git or foundation of the action is held to confift in the husband's lofs of the comfort and fociety of his wife. 5 T. R. 357.

The judges have declared, that in all actions of this fort it is the peculiar province of the jury to eftimate what pecuniary reparation ought to be granted; and they have refused to grant a new trial for exceffive damages, where a verdict was given for 5000. under circumstances which were fuch, that one learned judge was of opinion they amounted to evidence of confent, and that a verdie ought to have been given for the defendant. 4 T. R. 651. However reluctant the judges may appear to become the arbitrators of the price of adultery, yet that delicacy perhaps ought not to be extended to a verdict; which from the manifeft circumRangs of the cafe cannot poffibly be reconciled with any fair and rational measure of justice.

This action for criminal converfation having in it a mixture of penal profecution, fufficient evidence must be produced to fatisfy the jury of the actual marriage, and the identity, of the parties. Deng, 166.

6

II. INJURIES

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II. INJURIES that may be offered to a perfon confidered in the relation of a parent were likewise of two kinds; 1. Abduction, or taking his children away; and 2. Marrying his fon and heir without the father's confent, whereby during the continuance of the military tenures he loft the value of his marriage. But this last injury is now ceafed, 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 fort 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 alfo 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 befides the heir: fome holding that it would [141] not, upon the fuppofition that the only ground or caufe of action was lofing 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 intereft in them all, to provide for their education. 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 I am inclined to think it was,) it ftill remains an injury, and is remediable by a writ of ravishment, or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; in the fame manner as the husband may have it, on account of the abduction of his wife.

III. Or a fimilar nature to the laft is the relation of guar dian and ward; and the like actions mutatis mutandis, as are given to fathers, the guardian alfo has for recovery of da mages, when his ward is ftolen or ravifhed 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 focage was always and is stili entitled to an action of ravishment, if his ward or pupil be

a Cro. Eliz. 770,

e F. N. B. 95.

f Ibid. 139.
g Ibid.

taken

taken from him: but then he muft account to his pupil for the damages which he fo recovers h. And, as guardian in focage was alfo entitled at common law to a writ of right of ward, de cuftodia terrae et haeredis, in order to recover the poffeffion and cuftody of the infant', fo I apprehend that he is ftill entitled to fue out this antiquated right. But a more fpeedy and fummary method of redreffing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery; which is the fupreme guardian, and has the fuperintendant jurifdiction, of all the infants in the kingdom. And it is exprefsly provided by ftatute 12 Car. II. c. 24. that teftamentary guardians may maintain an action of ravifhment or trefpafs, for recovery of any of [142] their wards, and alfo for damages to be applied to the ufe and

benefit of the infants *.

IV. To the relation between mafier and fervant, and the rights accruing therefrom, there are two species of injuries incident. The one is, retaining a man's hired fervant before his time is expired; the other is beating or confining him in such a manner that he is not able to perform his work. As to the first, the retaining another perfon's fervant during the time he has agreed to ferve his prefent mafter; this as it is an ungentlemanlike, fo it is alfo an illegal act. For every mafter has by his contract purchafed for a valuable confideration the fervice of his domeftics for a limited time; the inveigling or hiring his fervant, which induces a breach of this contract, is therefore an injury to the mafter; and for that injury the faw has given him a remedy by a fpecial action on the cafe: and he may alfo have an action against the fervant for the non-performance of his agreement'. But, if the new master was not apprized of the former contract, no action lies against him, unless he refuses to restore the fervant upon demand. The other point of injury, is that of beating, confining, or difabling a man's fervant, which depends upon the fame

h Hale on F. N. B. 13).

IF. N. B. ibid.

*2 P. Wms. 108.

I F. N. B. 167.
m Ibid. Winch. 51.

principle

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