third injury is that of beating a man's wife, or otherwise illusing her; for which, if it be a common assault, 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 assistance of his wife, the law then gives him a separate remedy by an action of trespass, in nature of an action upon the case, for this ill-usage, per quod consortium amisit; in which he shall recover a satisfaction in damages. II. INJURIES that may be offered to a person considered in the relation of a parent 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 Cro. Jac. 501. 538. for that loss, when the plaintiff has voluntarily renounced them before; upon this principle, the case of Weedon v. Timbrell, 5 T. R. 357. was decided. It should be observed that if the action is in form necessarily trespass vi et armis, which perhaps is not quite settled, the legal foundation of it will not be the consequential damage just stated; but independently of this, upon grounds of policy and morality, the decision may seem questionable; a voluntary separation may sometimes take place under circumstances which still leave the husband both comfort and assistance from the wife, so long as her character remains unimpeached, (as for example, in the care and education of their children,) but which her adultery will deprive him of. Besides, it seems a dangerously easy step in the argument to say, that if the husband can maintain no action, where he has consented to the separation, he can maintain none even where he has not consented to it, against the person who finds the wife in that state of separation, and then seduces her, because that person does not occasion the loss of which he complains. From the case of Chambers v. Caulfield, 6 East's R. 244., it may be inferred, that the decision now under consideration is not to be extended in any way; that the renunciation must be absolute and entire, and that a separation even voluntary, if it was specifically only for a time, or if it left the husband rights in his wife, and claims on her comfort and assistance, would not be a bar to the action. VOL. III. M 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 [141] 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. 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 still remains an injury, and is remediable by writ of ravishment, or action of trespass vi et armis, de filio, vel filia, rapto vel abducto; in the same manner as the husband may have it, on account of the abduction of his wife. (19) 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. 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 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 ". And, as 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', so I apprehend that he is still entitled to sue out this antiquated writ. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an * Cro. Eliz.770. F.N. B. 90. F. N. B. 139. F.N. B. 139. b Hale on F. N. B. 139. (19) The writ referred to in F. N. B. adds, " hærede" to filio or filia; and the form in the register is the same. application to the court of chancery; which is the supreme guardian, and has the superintendant 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 applied to the [142] use and benefit of the infants*. 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 beating or confining him in such a manner that he is not able to perform 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. But, if the new master was not apprized of the former contract, no action lies against him", 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 recompence 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": 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; k2 P.Wms. 108. 1 F. N. B. 167. m F.N.B. 168. Winch. 51. 10 Rep, 130. [143] where masters were entitled to an action against such as beat or ill-treated their servants °. (20) WE 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 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, (21) 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. Pott. Antiq. b. 1. c. 26. (20) It is indirectly in this form of action that the law gives a satisfaction to a parent for the seduction of his daughter. In order, therefore, to maintain it, some evidence, however slight, that the daughter was in the habit of performing acts of service for her father is indispensably necessary, and when these are proved, the age of the daughter or her residence are immaterial; but though the injury may have been committed while the daughter was a minor, yet, if she then formed no part of her father's family, and had left it without any intention of returning, the action is not maintainable. When the legal foundation is once laid by proof of the service, the damages are not to be measured by the loss of that service, but by all the circumstances of the case. It seems hardly necessary to observe that the action may be maintained by any one who fills the situation of master, though he may not be the father of the female seduced; the loss of service being the legal principle on which it rests, and therefore it has been extended even to the case of one suing for the seduction of his adopted child. Irwin v. Dearman, 11 East, 23. (21) Only if next heir male. See Vol. IV. p. 314. CHAPTER THE NINTH. 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 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 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 subsist. FIRST then we are to consider the injuries that may be [145] 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. 1. 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, |