Gambar halaman
PDF
ePub

is, as a public crime, left to the coercion of the spiritual courts ; yet, for the civil injury, the law gives a species of satisfaction to the husband, by enabling him to claim damages in a suit for a divorce against the adulterer. These damages are increased and diminished by circumstances; as the rank and fortune of the plaintiff and defendant; the relation or connection between them; the seduction or otherwise of the wife, founded on her previous behaviour and character: and the profligacy of the husband. 3. The third injury is that of beating a man's wife, or othewise ill-using her; for which the law gives the usual remedy to recover damages.

II. The injury that may be offered to a person in the relation of a parent is that of abduction, or taking away of the child, for which the law allows an action for the value of the lost services of the child, who is, in this instance, regarded as a servant ; for it is only in the character of master that the suit is maintainable. In such an action, however, damages may be given, not only as compensation for the lost services, but also for the wounded feelings of the parent.

III. Of a similar nature to the last is the relation of guardian and ward; and the like action which is given to a father, the guardian also has for recovery of damages, when his ward is taken away from him. But the usual method of redressing all complaints relating to wards and guardians is by an application to the Chancery division of the High Court, which is the supreme guardian, and has the superintendent jurisdiction of all the infants in the kingdom.

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 has expired; the other is beating or confining him in such a manner that he is not able to perform his work. And for either injury the law gives him a remedy by action for the damages which he has sustained, or for the value of the servant's labour. The master may also have an action against the servant for the non-performance of his agreement. In these relative injuries, notice is only taken of the wrong done to the superior of the parties related, while the loss to the inferior is totally un

INJURIES TO HUSBAND.

315

regarded. One reason for which may be this: that the inferior has 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 has no separate interest in anything during her coverture. 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.

CHAPTER VI.

OF INJURIES TO PERSONAL PROPERTY.

WE are now to consider the injuries that may be offered to the rights of personal property; and, of these, firstly, to the rights of personal property in possession, and then to those that are in action only.

I. The rights of personal property in possession are liable to two species of injuries: 1. The amotion or deprivation of that possession: and 2. The abuse or damage of the chattels, while the possession continues in the legal owner.

The former, or deprivation of possession, is also devisable into branches: the unlawful taking them away; and the unlawful detaining them, though the original taking might be lawful.

And first of an unlawful taking. When I once have gained a rightful possession of any goods or chattels, 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 unless private possessions 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 simple-minded

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 an injury, the next consideration is, what particular remedy the law has given for it. And this is, firstly, the restitution of the goods themselves wrongfully taken, with damages for the loss sustained. This is effected by an action of replevin, which is chiefly resorted to in one instance of an unlawful taking, that of a wrongful distress, but lies upon any unlawful taking whatever. This and the action of detinue are the only actions, in which the specific possession of the identical chattel is restored to the owner.

A replevin is founded upon a distress taken wrongfully: being a re-delivery of the pledge, or thing taken in distress, to the owner; upon his giving security to try the right of the distress, and to restore it, if the right be adjudged against him. These replevins, or re-deliveries of goods detained from the owner to him, are granted by the registrar of the county court of the district, in which the distress is taken, upon security being given to him by the replevisor, 1, that he will pursue his action against the distrainor, and, 2, that if the right be determined against him he will return the distress. And as the end of all distresses is only to compel the party distrained upon to satisfy the debt or duty owing from him, this end is as well answered by such security as by retaining the very distress, which might frequently occasion great inconvenience to the owner. The registrar, therefore, on receiving security, causes the chattels taken in distress to be restored to the party distrained upon, making use of force, if necessary; and the party replevying is then bound to bring his action of replevin either in the High Court or in the county court of the district wherein the distress was taken. He therein complains of the trespass committed upon him by the seizure of his goods; and the distrainor, who is now the defendant, makes avowry; that is, he avows taking the distress in his own right, and sets forth the reason of it, as for rent arrear, damage done, or other cause; or else, if he justifies in another's right as his bailiff or servant, he is said to make cognizance; that is, he acknowledges the taking, but insists that such taking was legal, as he acted by the command of one who had a right to distrain. On the merits of either avowry or

[blocks in formation]

cognizance, the action is determined. If it be determined for the plaintiff, viz., that the distress was wrongfully taken, he has already got his goods back into his own possession, and shall keep them, and moreover recover damages: if the defendant prevails, then he shall have a writ de retorno habendo, whereby the goods or chattels, which were distrained and then replevied, are returned again into his custody, to be sold or otherwise disposed of, as if no replevin had been made.

Deprivation of possession may also be by an unlawful detainer, though the original taking was lawful. As if I lend a man a horse, and he afterwards refuses to restore it, this injury consists in the detaining, and not in the original taking, and the regular method for me to recover possession is by action of detinue. In this action of detinue, it is necessary to ascertain the thing detained, in such manner as that it may be specifically known and recovered. Therefore it cannot be brought for money, corn, or the like: for that cannot be known from other money or corn; unless it be in a bag or sack, for then it may be marked. In order therefore to ground this action which is only for detaining, these points are necessary: 1, that the defendant came lawfully into possession of the goods; 2, that the plaintiff have a property; 3, that the goods themselves be of some value; and, 4, that they be ascertained in point of identity. Upon this the court, if judgment be for the plaintiff, assesses the value of the goods detained, and also damages for the detention. If a re-delivery is impossible, damages only may be assessed. So if the chattels have been re-delivered to the owner, after action brought, damages for the detention only need be assessed; the judgment in this action being generally conditional; that the plaintiff recover the goods, or if they cannot be had, their value, and damages for the detention.

There is another action by which to obtain a satisfaction for the wrongful taking, or detention of chattels, viz., the action of trover and conversion, which was originally an action for recovery of damages against such person as had found another's goods, and refused to deliver them on demand, but converted them to his own use; from which finding and converting, it was called an action of trover and conversion. In this action it was not requisite to describe the goods; and ultimately actions of trover were per

mitted to be brought against any man, who had in his possession, by any means whatsoever, the personal goods of another, and sold them or used them without the consent of the owner, or refused to deliver them when demanded. The injury lies in the conversion: for any man may take the goods of another into his possession if he finds them; but no finder is allowed to acquire a property therein, unless the owner be unknown: and therefore he must not convert them to his own use, which the law presumes him to do, if he refuses to restore them to the owner: for which reason such refusal alone is primâ facie evidence of a conversion. The fact of the finding, or trover, is therefore totally immaterial: for if the plaintiff proves that the goods are his property, and that the defendant had them in his possession, it is sufficient. But a conversion must be proved: and then the plaintiff shall recover damages, equal to the value of the thing converted.

As to the damage that may be offered to things personal, while in the possession of the owner, as hunting a man's deer, shooting his dogs, poisoning his cattle, or in anywise taking from the value of any of his chattels, or making them in a worse condition than before, these are injuries too obvious to need explanation. The owner's remedy is by an action for damages, which ought to bear proportion to the injury which he proves that his property has sustained. And it is not material whether the damage be done by the defendant himself, or his servants by his direction; for the action will lie against the master as well as the servant. And if a man keeps a dog or other brute animal, used to do mischief, as by worrying sheep, or the like, the owner must answer for the consequences, if he knows of such evil habit.

II. We are next to consider injuries affecting the right of things in action only; or such rights as arise from contracts; the nature of which were explained in the preceding book. The violation, or non-performance, of these contracts might be extended into as great a variety of wrongs, as the rights which we then considered: but I shall now consider them in a twofold division only; viz., contracts express, and contracts implied.

Express contracts include three species: debts, covenants, and promises.

« SebelumnyaLanjutkan »