Book III. We may obferve that in these relative injuries, notice is only taken of the wrong done to the fuperior of the parties

muft prove that his daughter, when feduced, actually affifted in fome degree, however inconfiderable, in the housewifery of his family; and that he has been rendered lefs ferviceable to him by her pregnancy and I should think the action would be sustained upon the evidence of a confumption or any real diforder, contracted by the daughter, in confequence of her feduction, or of her shame and forrow for the violation of her honour. It is immaterial what is the age of the daughter, but it is neceffary that at the time of the feduction fhe fhould be living in, or be confidered part of, her father's family. 4 Burr. 1878. 3 Wilf. 18. And Mr. J. Wilson, in a cafe upon the northern circuit, was of opinion, that a young woman who was upon a visit at a relation's house, and was there feduced, might be confidered, in fupport of this action, as in the fervice of her father, or as part of his family. In this action, as the daughter does not neceffarily receive any part of the damages recovered, she is a competent witnefs, and is generally produced to prove the circumftances of the feduction. But in fuch cases, as in actions for adul tery, the damages are estimated from the rank and fituation of the parent, or from the degree of affliction which, under all the circumftances, he may be fuppofed to fuffer. It should feem that this action may be brought by a grandfather, brother, uncle, aunt, or any relation under the protection of whom, in loco parentis, a woman refides; especially if the cafe be fuch that fhe can bring no action herself: but the courts would not permit a perfon to be punished twice by exemplary damages for the fame injury. 2 T. R. 4.

Another action for feduction is a common action for trefpafs, which may be brought when the feducer illegally entered the father's houfe; in which action the debauching his daughter may be ftated and proved as an aggravation of the trefpafs. 2 T. R. 1787.

In this action the feduction may be proved, though it may not have been followed by the confequences of pregnancy or the lofs of fervice. But thefe are the only actions which have been extended by the modern ingenuity of the courts, to enable an unhappy parent to recover a recompenfe under certain circumstances, for the injury he has fuftained by the seduction of his daughter.

related

related by the breach and diffolution of either the relation itself, or at least the advantages accruing therefrom; while the lofs of the inferior by fuch injuries is totally unregarded. One reafon for which may be this: that the inferior hath no kind of property in the company, care, or affiftance of the fuperior, as the fuperior is held to have in those of the inferior; and therefore the inferior can fuffer no lofs or injury. The wife cannot recover damages for beating her husband, for fhe hath no separate interest in any thing during her coverture. ''The child hath no property in his father or guardian; as they have in him, for the fake of giving him education and nurture. Yet the wife or the child, if the husband or parent be flain, have a peculiar fpecies of criminal profecution allowed them, in the nature of a civil fatisfaction; which is called an appeal, and which will be considered in the next book. And fo 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 ftipulated contract, he fuffers no injury, and is therefore entitled to no action, for any battery or imprisonment which fuch mafter may happen to endure.

CHAPTER THE NINTH,

OF INJURIES TO PERSONAL PROPERTY.

N the preceding chapter we confidered the wrongs or in

IN

juries that affected the rights of perfons, either considered as individuals, or as related to each other; and are at prefent to enter upon the difcuffion of fuch injuries as affect the rights of property, together with the remedies which the law has given to repair or redress them.

AND here again we must follow our former divifion of property into personal and real: perfonal, which consists in goods, money, and all other moveable chattels, and things thereunto incident; a property, which may attend a man's perfon wherever he goes, and from thence receives it's denomination and real property, which confifts of fuch things as are permanent, fixed, and immoveable; as lands, tenements, and hereditaments of all kinds, which are not annexed to the person, nor can be moved from the place in which they fubfift.

a See book II. ch. 2.

FIRST then we are to confider the injuries that may be offered to the rights of perfonal 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: the amotion or deprivation of that poffeffion; and the abuse or damage of the chattels, while the poffeffion continues in the legal owner. The former, or deprivation of poffeffion, 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. The right of property in all external things being folely acquired by occupancy, as has been formerly stated, and preserved and tranfferred by grants, deeds, and wills, which are a continuation. of that occupancy; it follows as a neceffary confequence, that when I once have gained a rightful poffeffion of any goods or chattels, either by a juft occupancy or by a legal transfer, whoever either by fraud or force difpoffeffes me of them is guilty of a tranfgreffion against the law of society, which is a kind of fecondary law of nature. For there must be an end of all focial commerce between man and man, unless private poffeffions be fecured from unjust invafions: and, if an acquifition of goods by either force or fraud were allowed to be a fufficient title, all property would foon be confined to the most strong, or the most cunning; and the weak and fimpleminded part of mankind (which is by far the most numerous divifion) could never be fecure of their poffeffions.

THE wrongful taking of goods being thus most clearly an injury, the next confideration is, what remedy the law of England has given for it. And this is, in the first place, the reftitution of the goods themselves fo wrongfully taken, with damages for the lofs sustained by such unjust invasion; which [146]

Book II. ch. 25a

с

is effected by action of replevin: an inftitution, which the mirror afcribes to Glanvil, chief juftice to king Henry the fecond. This obtains only in one inftance of an unlawful taking, that of a wrongful diftrefs; and this and the action of detinue (of which I fhall prefently fay more) are almost the only actions, in which the actual specific poffeffion of the identical perfonal chattel is restored to the proper owner. For things perfonal are looked upon by the law as of a nature so tranfitory and perishable, that it is for the most part impoffible either to afcertain their identity, or to reitore them in the fame condition as when they came to the hands of the wrongful poffeffor. And, fince it is a maxim that "lex neminem cogit ad vana, feu impoffibilia," it therefore contents itself in general with restoring, not the thing itself, but a pecuniary, equivalent to the party injured; by giving him a fatisfaction in damages. But in the cafe of a diftrefs, the goods are from the first taking in the custody of the law, and not merely in that of the diftreinor; and therefore they may not only be identified, but also reftored to their first poffeffor, 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 refcous, for which the diftreinor has a remedy in 'damages, either by writ of refeous, in cafe they were going to the pound, or by writ de parco fracto, or poundbreach, in cafe they were actually impounded. He may alfo at his option bring an action on the cafe for this injury: and fhall therein, if the diftrefs were taken for rent, recover treble damages. The term, refcous, is likewife applied to the forcible delivery of a defendant, when arrefted, from the officer who is carrying him to prifon. In which circumtances the plaintiff has a fimilar remedy by action on the cafe, or of rescous : or, if the fheriff makes a return of such [147] rescous to the court out of which the procefs iffued, the refcuer will be punished by attachment ".

cc. 2. § 6.

d F. N. B. 101.

c Ibid. 100.

f Stat. 2 W. & M. Seff. 1. c. 5.

g 6 Mod. 211.

h Cro. Jac. 419. Saik. 586.

AN