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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 expected by the court, agreeably to ancient precedents and the spirit of the act of parliament, that the writ shall be immediately obeyed, and the procedure on it has accordingly been much simplified and improved by the statute 56 Geo. III. c. 100. So that by these admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement; a remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government: for it frequently happens in foreign countries, and has happened in England during temporary suspensions of the statute, that persons apprehended upon suspicion have suffered a long imprisonment, merely because they were forgotten.

The operation of the writ of habeas corpus is by no means confined to the liberation of the person on whose behalf it is issued from illegal confinement in a 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. When, however, a woman or children are brought up by a habeas corpus, the court will only set them free from an improper or unreasonable confinement;-it cannot and will not, for instance, determine the validity of a marriage, or the right to the guardianship of infants, but will leave the person whose liberty is infringed to choose where he will go: and if there be any ground to fear that he will be seized in returning from the court, he will be sent home under the protection of an officer. If a child is too young to have any discretion of its own, the court will deliver it into the custody of its parent, or the person who appears to be its legal guardian.

The remedy, by way of satisfaction, for this injury of false imprisonment, is by an action of trespass, 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.

III. With regard to the third absolute right of individuals, or that of private property, I have to observe that the enjoyment of it, when acquired, is strictly a personal right. Its nature and origin, and the means of its acquisition or loss, were considered in the second book of these commentaries, which related to the rights of things. As the wrongs, then, that affect these rights must be referred to the corresponding division in the present volume, I conceive it will be more commodious and easy to consider together, rather than in a sepa

rate view, the injuries that may be offered to the enjoyments, as well as to the rights, of property. And therefore I shall here conclude the head of injuries affecting the absolute rights of individuals.

We are next to contemplate those which affect their relative rights : as husband and wife, parent and child, guardian and ward, master and servant.

I. Injuries that may be offered to a person, considered as a husband, are principally three: abduction, or taking away a man's 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. The law gives a remedy by action, in which the husband shall recover, not the possession of the wife, but damages for taking her away. 2. Adultery, or 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, the law gives a species of satisfaction to the husband for it, by suit against the adulterer, wherein the damages recovered are usually very large and exemplary. But these are properly 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 otherwise ill-using her; for which the law gives the usual remedy to recover damages.

II. The injuries that may be offered to a person considered in the relation of a parent is that of abduction, or taking away of his child. It was long a matter of doubt whether it was a civil injury or not; but the doubt has now been set at rest, no action being maintainable by the parent, except for the value of the lost services of the child, who is regarded as a servant. It is only in the character of master that the suit is maintainable; but in such an action 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 Court of Chancery, 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 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 of the inferior is totally unregarded. 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.

Injuries to property in possession; unlawful taking-action of replevin, unlawful detainer-action of detinue-trover. Injuries to property en action-debt-covenant-promises-Statute of Frauds-Lord Tenterden's Act-Ordinary assumpsits-Work done-Goods sold-Money receivedMoney paid-Accounts stated-For non-performance of implied undertakings-Warranties.

WE are now to consider the injuries that may be 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.

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.

1. The former, or deprivation of possession, is also devisable into two branches: 1. the unjust and unlawful taking them away; and

2, the unjust detaining them, though the original taking might be lawful.

1. And first of an unlawful taking. The right of property in all external things being solely acquired by occupancy, and preserved and transferred by grants, deeds, and wills, which are a continuation of that occupancy; it follows as a necessary consequence, that 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. For there must be an end of all social commerce between man and man, 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 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 so wrongfully taken, with damages for the loss sustained by such unjust invasion: which is effected by action of replevin, an institution ascribed to Granvil, chief justice to King Henry II. It is chiefly resorted to in one instance of an unlawful taking, that of a wrongful distress,* but the action lies upon any unlawful taking whatever. This and the action of detinue are the only actions, in which the actual specific possession of the identical personal chattel is restored to the proper owner.

An action of replevin 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. These replevins, or re-deliveries of goods detained from the owner to him, were originally, and till recently, effected by the sheriff; but are now 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

* In the case of a distress, the goods are from the first taking in the custody of the law, and the taking them back by force is denominated a rescous, for which the distrainor has a remedy in damages, either by an action for the rescue, in case they were going to the pound, or by an action for the pound-breach, in case they were actually impounded.

the distrainor, and, 2, that if the right be determined against him he will return the distress again. 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, and that the law never wantonly inflicts. The registrar, therefore, on receiving security, is immediately to cause the chattels taken in distress to be restored into the possession of the party distrained upon, making use of even force, if necessary; the party replevying being then bound to bring in his action of replevin either in one of the superior courts or in the county court of the district wherein the distress was taken. In the latter case the defendant, on giving security to defend the action with effect, and to prove that he had good ground for believing either that the title to some hereditament, toll, fair, or franchise was in question, or that the rent or damage in respect of which the distress was taken exceeded twenty pounds, may have the suit removed into any one of the superior courts, by certiorari. Upon the action being thus removed, and in actions of replevin, brought at once in the superior courts, a declaration is delivered, in which the plaintiff 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, or the right of his wife; 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 truth and legal merits of either avowry or cognizance, the cause 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, by the default or nonsuit of the plaintiff, 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.

II. Deprivation of possession may also be by an unjust detainer of another's goods, 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 re

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