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supposes force and constraint, the wife having no power to consent, and therefore gives a remedy by writ of an action of trespass vi et armis. This action lay at the common law, and thereby the husband shall recover, not the possession of his wife, but damages for taking her away: and by statute Westm. I. 3 Edw. I. c. 13. the offender shall also be imprisoned two years, and be fined at the pleasure of the king. 2. Criminal conversation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the spiritual courts; yet, considered as a civil injury, (and surely there can be no greater) the law gives a satisfaction to the husband for it by action of trespass vi et armis against the seducer, wherein the damages recovered are usually very large and exemplary. 3. The third injury is that of beating a man's wife, or otherwise ill using 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. An injury may be offered to a person considered in the relation of a parent by abduction, or

taking his children away, and this is remediable by an action of trespass.

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 enticed away from him. But a more speedy and summary method of redressing all complaints relative to wards and guardians hath of late obtained by an application to the court of chancery, which is the supreme guardian, and has the superintendant 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 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, and for that injury the law has given a remedy by special action on the case, and also 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.

CHAPTER IX.

OF INJURIES TO PERSONAL PROPERTY,

I SHALL now consider such injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

And, first, the rights of personal property in possession, and then those that are in action only. I. 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, 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. 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.

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, though wrongfully taken, with damages for the loss sustained by such unjust invasion; which is effected by action of replevin. This obtains only in one instance of an unlawful taking, that of a wrongful distress: in the case of a distress, the goods are from the first taking in the custody of the law, and not merely in that of the distreinor: and therefore they may not only be identified, but also restored to their possessor, without any material change in their condition. And, being thus in the custody of the law, the taking them back by force is looked upon as an atrocious injury, and denominated a rescous, for which the distreinor has a remedy for damages, either by writ of rescous, in case they were going to the pound, or by writ de parca fracto, or pound breach, in case they were actually impounded. He may also at his option bring an action on

the case for this injury and shall therin, if the distress were taken for rent, recover treble damages.

An action of replevin, the regular way of contesting the validity of the transaction, is founded upon a distress taken wrongfully and without sufficient cause: 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. But if the distress be carried out of the county, or concealed, then the sheriff may return that the goods, or beasts, are eloigned, elongata, carried to a distance, to places to him unknown: and thereupon the party replevying shall have a writ of capias in withernam, or in vetito namio; a term which signifies a second or reciprocal distress, in lieu of the first which was eloigned. It is therefore a command to the sheriff to take other goods, of the distreinor, in lieu of the distress formerly taken, and eloigned or withheld from the owner. So that here is now distress against distress; one being taken to answer the other, by way of reprisal, and as a punishment for the illegal behaviour of the original distreinor. For which reason goods taken in withernam cannot be replevied, till the original distress is forthcoming.

But, in common cases, the goods are delivered back to the party replevying, who is then bound to bring his action of replevin; which may be prosecuted in the county court, be the distress of what value it may. But either party may remove it to

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