Page images

principle as the lait; 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 imprison. ment, which the servant himself as an individual may have against the aggressor, the master also, as a recompense for kis 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 fervi tium amifit"; and then the jury will make him a proportionable pecuniary satisfaction. A similar practice to which, we find also to have obtained among the Athenians ; where mal ters were entitled to an action against such as beat or ill treated their servants °(13).

* 9 Rep. 113. 10 Rep. 310.

• Pott. Antiqu. b. I. c. 26.

(13) It appears to be a remarkable omission in the law of Eng. land, which with such scrupulous solicitude guards the rights of in. dividuals, and secures the morals and good order of the commu. nity, that it should have afforded so little protection to female char. tity. It is true that it has defended it by the punithment of death from force and violence, but has left it exposed to perhaps greater danger from the artifices and folicitations of seduction. In no cale whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury the has sustained from the seducer of her virtue. And even where her weakness and cre.' dulity have been imposed upon by the moit solcnn promises of: marriage, unless they have been overheard or made in writing, the cannot recover any compenfation, being incapable of giving evidence in her own cause. Nor can a parent maintain any ac. tion in the temporal courts againit the person who has done this wrong to his family, and to his honour and happiness, but by Itating and proving, that from the consequences of the seduction his daughter is less able to aslift him as a servidit, or that the fee ducer in the pursuit of his daughter was a trespasser upon his pre. miles. Hence no action can be maintained for the feduction of . a daughter, which is not attended with a loss of service or an in. jury to property. Therefore, in that action for fedu&tion which is in most general vse, viz. a per quod fervitium anift, the farlier

We may observe that in these relative injuries, notice is only taken of the wrong done to the superior of the parties

must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that Me has been rendered less serviceable to him by her pregnancy: and I should think the action would be sustained upon the evidence of a consumption or any real disorder, contraéted by the daughter, in consequence of her seuluction, or of her shame and forrow 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 feduction The hould be living in, or be considered part of, her father's family. 4 Burr, 1878. 3 Will. 18. And Mr. J. Wilson, in a case opon the northern circuit, was of opinion, that a young woman who was upon a viît at a relation's house, and was there seduced, might be confidered, in support of this a&tion, as in the service of her father, or as part of his family. In this action, as the daughter does not necessarily receive any part of the damages recovered, she is a competent witness, and is generally produced to prove the circumItances of the reduction. But in such cases, as in actions for adultery, the damages are estimated from the rank and situation of the parent, or from the degree of amiction which, under all the cir.

cumstances, he may be supposed to suffer. 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 refides ; especially if the case be such that the 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 feducer illegally entered the father's house; in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. 27'. R. 1787.

In this action the reduction may be proved, though it may not have been followed by the consequences of pregnancy or the loss of fervice. But 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.


related by the breach and diffolution 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 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, and which will 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.

[merged small][merged small][ocr errors]




TN the preceding chapter we considered the wrongs or in. 1 juries 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 divisiona of property into personal and real : perfonal, which conäfts 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 it's 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 subfift.

a See book II. ch. 2.

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 poffefion, and then those that are in action only.

1. The rights of personal property in polleffion are liable to two fpecies of injuries: the amotion or deprivation of that poffesfion; 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 detaining them, though the original taking might be lawful.

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 once have 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 poflellions 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 simpleminded 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 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 [ 146 )

b Book II. ch. 25.
M 2

. is

« PreviousContinue »