Entered, according to Act of Congress, in the year 1867, by

FRANCIS HILLIARD,

In the Clerk's Office of the District Court of the District of Massachusetts.

350670

Cambridge Press.

DAKIN AND METCALF.

PREFACE.

THE following work is specially designed to be a sequel or supplement to another book which has been received with some favor by the profession,-"The Law of Torts or Private Wrongs." This explanation is necessary, in order to save the present treatise from the charge of being more desultory and disconnected than any legal text-book ought to be. Had my original plan been more comprehensive, the contents of the following pages might, without marked impropriety, have been scattered among the successive chapters of the former work. Constituting, therefore, as they now do, the material of a separate book, they require to be read in connection with the former one, before the question of their pertinency, utility, and methodical propriety can be fairly passed upon. A few remarks will explain the plan of the present book.

In treating of remedies for torts, of course it is not proposed to enter into a consideration of those matters of mere process or practice, which are for the most part common to all suits at law, whether founded upon contracts or upon wrongs; and which are generally and variously regulated in the several States by express statute. such a plan would be included the writ, service, entry, trial, verdict, judgment, execution, and numerous other incidental points, all of great practical importance, but

In

having no special connection with the main subject of this work, and the law pertaining to which depends so extensively upon positive legislation.

Another limitation of the plan of the present work, depending on somewhat different considerations, is, that it omits those remedies which are directed to the recovery of compensation; and is confined to that restricted class, which claims specifically the property, personal or real, alleged to be wrongfully taken or detained; including replevin, and real action or ejectment;· the action of detinue, though it belongs to the same class, being now substantially obsolete. With reference to actions for damages, the remedy has to some extent unavoidably been treated, in the work to which the present is a supplement, in connection with the wrong itself. Thus it would be impossible to treat of the wrong of conversion, without at the same time treating of the remedy of trover. And so with the wrong and remedy, both entitled trespass, and the wrong of negligence, redressed by the action on the case. But, with regard to the specific remedies, which we are about to consider, it is far otherwise. There is no particular wrong for which replevin is the appropriated remedy. And, in reference to the unlawful withholding of real property, the wrong of disseisin and the remedy of ejectment are so inseparably connected together, or rather the remedy so far regulates and controls the wrong, that to treat of the subject at all was found inconsistent with the plan of the former work, and the whole was reserved for future consideration.

There are, however, three topics, applicable alike to all torts, and still strictly coming under the head of remedies, which will be found fully treated in the present work.