3 the law, in this cafe, refpects the paffions of the human mind; and (when external violence is offered to a man himself, or thofe to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is [4] prompted by nature, and which no prudential motives are ftrong enough to refrain. It confiders, that the future procefs of law is by no means an adequate remedy for injuries accompanied with force; fince it is impoffible to fay, to what wanton lengths of rapine or cruelty outrages of this fort might be carried, unless it were permitted a man immediately to oppofe one violence with another. Self-defence therefore, as it is juftly called the primary law of nature, fo it is not, neither can it be in fact, taken away by the law of fociety. In the English law particularly it is held an excufe for breaches of the peace, nay even for homicide itfelf: but care must be taken, that the refiftance does not exceed the bounds of mere defence and prevention; for then the defender would himfelf become an aggreffor. II. RECAPTION or reprifal is another fpecies of remedy by the mere act of the party injured. This happens, when any one hath deprived another of his property in goods or chattels perfonal, or wrongfully detains one's wife, child, or fervant: in which cafe the owner of the goods, and the hufband, parent, or mafter, may lawfully claim and retake them, wherever he happens to find them; fo it be not in a riotous manner, or attended with a breach of the peace. The reafon for this is obvious; fince it may frequently happen that the owner may have this only opportunity of doing himself juflice: his goods may be afterwards conveyed away or deAtroyed; and his wife, children, or fervants, concealed or carried out of his reach; if he had no fpecdier remedy than the ordinary procefs of law. If therefore he can fo contrive it as to gain poffeflion of his property again, without force or terror, the law favours and will justify his proceeding. But, as the public peace is a fuperior confideration to any one man's private property; and as, if individuals were once ale 3 lat. 134. Hal. Anil $45. 8 lowed lowed to use private force as a remedy for private injuries, all focial justice must cease, the strong would give law to the weak, and every man would revert to a ftate of nature; for these reasons it is provided, that this natural right of recaption fhall never be exerted, where fuch exertion muft occafion [ 5 ] ftrife and bodily contention, or endanger the peace of fociety. If, for instance, my horfe is taken away, and I find him in a common, a fair, or public inn, I may lawfully feife him to my own ufe: but I cannot juftify breaking open a private stable, or entering on the grounds of a third perfon, to take him, except he be feloniously flolen f; but muft have recourfe to an action at law. III. As recaption is a remedy given to the party himself, for an injury to his perfonal property, fo, thirdly, a remedy of the fame kind for injuries to real property, is by entry on lands and tenements, when another person without any right has taken poffeffion thereof. This depends in fome measure on like reasons with the former; and, like that too, must be peaceable and without force. There is fome nicety required to define and diftinguifh the cafes, in which fuch entry is lawful or otherwife: it will therefore be more fully confidered in a subsequent chapter; being only mentioned in this place for the fake of regularity and order. IV. A FOURTH fpecies of remedy by the mereact of the party injured, is the abatement, or removal, of nuances. What nufances are, and their feveral fpecies, we fhall find a more proper place to inquire under fome of the fubfequent divifions. At prefent I fhall only obferve, that whatsoever unlawfully annoys or doth damage to another is a nusance; and fuch nufance may be abated, that is, taken away or removed, by the party aggrieved thereby, fo as he commits no riot in the doing of it. If a houfe or wall is erected fo near to mine that it ftops my antient lights, which is a private rufance, I may enter my neighbour's land, and peaceably 8 5 Rep. 101. 9. Rep. 55. * 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. 565, 566.) B 3 pull pull it down". Or if a new gate be erected across the public highway, which is a common nusance, any of the king's fubjects paffing that way may cut it down, and destroy it. [6] And the reason why the law allows this private and fummary method of doing one's felf justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and ufe, require an immediate remedy; and cannot wait for the flow progress of the ordinary forms of justice. V. A FIFTH cafe, in which the law allows a man to be his own avenger, or to minifter redress to himself, is that of dif treining cattle or goods for nonpayment of rent, or other duties; or, distreining another's cattle damage-feasant, that is, doing damage, or trefpaffing, upon his land. The former intended for the benefit of landlords, to prevent tenants from fecreting or withdrawing their effects to his prejudice; the latter arising from the neceflity of the thing itself, as it might otherwise be impoffible at a future time to ascertain, whofe cattle they were that committed the trespaís or damage. As the law of diftreffes is a point of great ufe and confequence, I fhall confider it with fome minuteness: by inquiring, firft, for what injuries a diftrefs may be taken; fecondly, what things may be distreined; and, thirdly, the manner of taking, disposing of, and avoiding diftreffes. 1. AND, first, it is neceffary to premife, that a distress j, districtio, is the taking of a personal chattel out of the poffeffion of the wrongdoer into the cuftody of the party injured, to procure a fatisfaction for the wrong committed. 1. The moft ufual injury, for which a diftrefs may be taken, is that of nonpayment of rent. It was obferved in a former volume, that diftreffes were incident by the common law to every rentfervice, and by particular refervation to rent-charges alfo; but not to rent-feck, tiil the ftatute 4 Geo. II. c. 28. ex h Salk. 459. Cro. Car. 184. j The thing itself taken by this pro cefs, as well as the process itself, is in our lawbooks very frequently called a diftrefs. k Book II. ch. 3. tended tended the fame remedy to all rents alike, and thereby in effect abolished all material diftinction between them (2). So that now we may lay it down as an univerfal principle, that a distress be taken for may kind of rent in arrear; [71 any the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it. 2. For neglecting to do fuit to the lord's court', or other certain perfonal fervice, the lord may diftrein, of common right. 3 For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it". 4. Another injury, for which diftreffes may be taken, is where a man finds beafts of a ftranger wandering in his grounds, damage-feasant; that is, doing him hurt or damage, by treading down his grafs, or the like; in which cafe the owner of the foil may distrein them, till fatisfaction be made him for the injury he has thereby substained. 5 Laftly, for several duties and penalties inflicted by fpecial acts of parliament, (as for affeffments made by commiffioners of fewers, or for the relief of the poor) remedy by diftrefs and fale is given; for the particu lars of which we must have recourfe to the ftatutes themfelves remarking only that fuch diftreffes are partly analogous to the antient diftrefs at common law, as being reple-. viable and the like; but more refembling the common, law process of execution, by feifing and felling the goods of the debtor under a writ of fieri facias, of which hereafter, 2. SECONDLY; as to the things which may be diftreined, or taken in diftrefs, we may lay it down as a general rule, that all chattels perfonal are liable to be diftreined, unless particularly protected or exempted. Instead therefore of mentioning what things are diftreinable, it will be easier to re 1 Bro. Abr. tit. diftrefs. 15. m Co. Litt. 45. n Brownl. 36. • Stat. 7 Ann. c. 10, (2) See 2 vol. page 42.. count count those which are not fo, with the reafon of their particular exemptions. And, 1. As every thing which is diftreined is prefumed to be the property of the wrongdoer, it will follow that fuch things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and [8] all animals ferae naturae) cannot be diftreined. Yet if deer (which are ferae naturae) are kept in a private inclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandize, that they may be diftreined for rent'. 2. Whatever is in the perfonal ufe or occupation of any man, is for the time privileged and protected from any diftrefs; as an ax with which a man is cutting wood, or a horfe while a man is riding him. But horses, drawing a cart, may (cart and all) be diftreined for rent-arrere ; and also if a horse, though a man be riding him, be taken damage-feafant, or trefpaffing in another's grounds, the horse (notwithstanding his rider) may be diftreined and led away to the pound' (3). 3. Valuable things in the way of trade shall not be liable to diftrefs. As a horfe ftanding in a fmith's shop to be shoed, or in a common inn; or cloth at a taylor's houfe; or corn fent to a mill, or a market. For 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, but to his cuftomers. But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a ftranger, are diftreinable by him for rent: for otherwife a door would be open to infinite frauds upon the landlord; and the ftranger has his remedy over by action on the cafe against the tenant, if by the tenant's default the chattels are diftreined, fo that he cannot render them when called upon. With regard to a ftranger's beafts which are found on the (3) The contrary feems to be the better opinion, the authorities for which are collected in Harg. Co. Litt. 47. tenant's |