judges denying the same, on sight of the warrant, or oath that the same is refused, forfeit severally to the party grieved the sum of 5001.

8. That this writ of habeas corpus shall run into the counties palatine, cinque ports, and other privileged places, and the islands of Jersey and Guernsey.

9. That no inhabitant of England (except persons contracting, or convicts praying to be transported; or having committed some capital offence in the place to which they are sent) shall be sent prisoner to Scotland, Ireland, Jersey, Guernsey, or any places beyond the seas, within or without the king's dominions; on pain that the party committing, his advisers, aiders, and assistants, shall forfeit to the party grieved a sum not less than 500l. to be recovered with treble costs; shall be disabled to bear any office of trust or profit; shall incur the penalties of præmunire; and shall be incapable of the king's pardon.

This important statute extends (we may observe) only to the case of commitments for such criminal charges as can produce no inconvenience to public justice by a temporary enlargement of the prisoner; all other cases of unjust imprisonment being left to the habeas corpus at common law. But even upon writs at the common law it is now expected by the court, agreeable to ancient precedents and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement.

Besides the efficacy of the writ of habeas corpus in liberating the subject from illegal confinement in a public prison, it also extends its influence to remove every unjust restraint of personal freedom in private life, though imposed by a husband or a father; but when women or infants are brought before the court by a habeas corpus, the court will only set them free from an unmerited or unreasonable confinement, and will not determine the validity of a marriage, or the right of the guardianship, but will leave them at liberty to choose where they will go; and if there be any reason to apprehend that they will be seized in returning from the court, they will be sent home under the protection of an officer. But if a child be too young to have any discretion of its own, then the court will deliver it into the custody of its parent, or the person who appears to be its legal guardian.

If an equivocal return be made to a habeas corpus, the court will immediately grant an attachment.

The satisfactory remedy for this injury of false imprisonment is by an action of trespass vi et armis, usually called an action of false imprisonment; which is generally, and almost unavoidably, accompanied with a charge of assault and battery also; and therein the party shall recover damages for the injury he has received; and also the defendant is, as for all other injuries committed with force, or vi et armis, liable to pay a fine to the king for the violation of the public peace.

CHAPTER VI.

Of Abduction and Adultery.

HAVING considered the injuries which affect individuals in their own persons, and shewn the different remedies for them, we are next to treat of those which may affect them in their relationship to others, and for which the law has provided an adequate remedy: and, first, with regard to husband and wife. The injuries that may be offered to a person considered as a husband are principally these: abduction, or taking away his wife; adultery, or criminal conversation with her; and beating, or otherwise abusing her.

1. As to the first sort, abduction, or taking her away, this may either be by fraud and persuasion, or open violence, though the law in both cases supposes force and restraint, the wife having no power to consent, and therefore gives a remedy by writ of ravish, or action of trespass vi et armis. This action lay at the common law; and thereby the husband may recover, not the possession of his wife, but damages for taking her away; and by Westm. 1. 3 Edw. I. c. 13. the offender may also be imprisoned two years, and be fined at the pleasure of the king. the king and the husband may have this action; and the husband is also entitled to recover damages, in an action on the case against such as persuade and entice the wife to live separate from him without sufficient cause.

Both

2. Adultery, or criminal conversation with a man's wife, though it is, as a public crime, left by the laws to the coercion of the spiritual courts, yet, considered as a civil injury, the law gives a satisfaction to the husband for it by action of trespass vi et armis against the adulterer, wherein the damages recovered are usually very large and exemplary. This crime was severely punished by the ancient law of the land; but at the present day it belongs to the ecclesiastical-courts. Several attempts, indeed, have been made to bring it within the pale of criminal jurisdiction, but without effect and it is therefore considered by the temporal courts merely as a civil injury.

A variety of circumstances concur in regulating the quantum of damages in actions of Crim. Con.; such as the rank and quality of the plaintiff, the condition of the defendant, and his being a friend, relation, or dependent of the plaintiff; the seduction or otherwise of the wife, founded on her previous behaviour and character; and the husband's obligation, by settlement or otherwise, to provide for those children which he cannot but suspect to be spurious. And in this case, and upon indictment for polygamy, a marriage in fact must be proved, though generally in

other cases, reputation and cohabitation are sufficient evidence of marriage.

In mitigation of damages, evidence may be offered that the husband carried on a criminal correspondence with other women, in an open, notorious, and undisguised manner; or that he treated his wife harshly and unkindly; or that they did not live affectionately together.

A husband cannot maintain an action, if he live entirely separated from his wife in consequence of a mutual agreement; for the git or foundation of the action is held to consist in the husband's loss of the comfort and society of his wife.

3. The third injury we have now to treat of 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 name of the husband and wife jointly: but if the beating or other mal-treatment 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 the nature of an action upon the case, for this ill-usage.

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 a writ of ravishment, or action of trespass vi et armis, in the same manner as the husband may have it on account of the abduction of his wife.

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.

CHAPTER VII.

Of Seduction.

IN no case whatever of seduction, unless a woman has had a promise of marriage, can she herself obtain any reparation for the injury she has sustained from her seducer. And even where her weakness and credulity have been imposed upon by the most solemn promises of marriage, unless they have been overheard or made in writing, she cannot recover any compensation, being incapable of giving evidence in her own cause.

Nor can a parent maintain an action in the temporal courts, but by proving, that, from the consequence of the seduction, his daughter is less able to assist him as a servant, or that the seducer, in the pursuit of his daughter, was a trespasser upon his premises. Hence no action can be maintained for the seduction of a daughter, which is not attended with a loss of service, or an injury to pro

D

perty. Therefore, in that action for seduction which is in most general use, viz. a per quod servitium amisit, the father must prove that his daughter, when seduced, actually assisted in some degree, however inconsiderable, in the housewifery of his family; and that she has been rendered less serviceable to him by her pregnancy. Or, the action would probably be sustained upon the evidence of a consumption, or any other disorder contracted by the daughter in consequence of her seduction.

It is immaterial what is the age of the daughter; but it is necessary that at the time of the seduction she should be living in, or be considered part of her father's family.

In this action, as the daughter does not necessarily receive any part of the damages recovered, she is a competent witness, and is generally produced to prove the fact of the seduction. But in such cases, as in actions for adultery, the damages are estimated from the rank and situation of the parent, or from the degree of affliction which, under all circumstances, he may be supposed to suffer.

This action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman resides; especially if the case be such that she can bring no action herself.

Another action for seduction is a common action for trespass, which may be brought when the seducer has illegally entered the father's house; in which action the debauching his daughter may be stated and proved as an aggravation of the trespass. Or, where the seducer carries off the daughter from her father's house, an action might be brought for enticing away his servant.

CHAPTER VIII.

Of Distress and Replevin.

A DISTRESS, in law, is the taking of a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed.

The most usual injury for which a distress may be taken is that of nonpayment of rent. A distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him who is entitled to receive it.-For neglecting to do suit to the lord's court, or other personal service, the lord may distrain of common right.-For amercements in a court-leet, a distress may be had of common right; but not for amercement in a court-baron, without a special prescription to warrant it. Another injury for which distress may be taken is, where a man finds beasts of a stranger wandering in his grounds damage-feasant, that is, doing him hurt or damage, by treading

down his grass, or the like; in which case the owner of the soil may distrain them, till satisfaction be made him for the injury.Lastly, for several duties and penalties inflicted by special acts of parliament (as for assessments made by commissioners of sewers, or for the relief of the poor), remedy by distress and sale is given. As to the things which may be distrained, or taken in distress, we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead, therefore, of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reasons of their particular exemptions. And,

1. As every thing which is distrained is presumed to be the property of the wrong-doer, it will follow that such things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and all animals feræ naturæ) cannot be distrained, yet if deer, which are feræ naturæ, 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 distrained for rent.

2. Whatever is in the present use or occupation of any man is for the time privileged and protected from any distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses drawing a cart may (cart and all) be distrained for rent-arrear; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another's ground, the horse (notwithstanding his rider) may be distrained, and led away to the pound.*

3. Valuable things in the way of trade are not liable to distress; as a horse standing in a smith's shop to be shoed, or in a common inn; or cloth at a tailor's house; or corn sent 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 customers.† But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to a tenant or a stranger, are distrainable by him for rent; for otherwise a door would be open to infinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant's default the chattels are distrained, so that he cannot tender them when called upon. With regard to a stranger's beasts which are found on the tenant's land, the following distinctions are however taken. If they are put in by consent, of the owner of the beasts, they are distrainable immediately afterwards for rent arrears by the landlord. So also, if a stranger's cattle break the fences, and commit a trespass by coming on the

This is said on the authority of 1 Sid. 440. But per Hargrave " the opinion was extra-judicial, and may be questioned," (see Co. Lit. 47. a. n. 12; and it has since been overruled, in the case of Storey v. Robinson, 6 Term Rep. 138. This privilege, however, does not extend to horses or carriages at liberty, or cattle agisting. Francis v. Wyatt, 3 Burr. 1498.