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present Book; and the other species will be reserved till the next or concluding Volume.
The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak
from the insults of the stronger, by expounding and enforcing The redress for a private wrong those laws, by which rights are defined, and wrongs prohibited. is by parties themselves, by This remedy is therefore principally to be sought by application operation of law, or by suit to these courts of justice; that is, by civil suit or action. For
which reason our chief employment in this Volume will be to consider the redress of private wrongs, by suit or action in court. But as there are certain injuries of such a nature, that some of them furnish and others require a more speedy remedy, than can be had by the ordinary forms of justice, there is allowed in any such case an extrajudicial or eccentrical kind of remedy; of which I shall first treat, before considering the several remedies by suit and action: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit, action, or other proceeding in court, and consists in a conjunction of the other two, the act of the parties co-operating with the act of law. [*3]
* And, first of that redress of private injuries, which is obtained by
the mere act of the parties. This is of two sorts; I. That which arises Redress by act
from the act of the injured party only; and, II. That which arises of the parties. from the joint act of all the parties together.
I. Of the former sort, or that which arises from the sole act of I. By sole act of party injured. the injured party, is,
1. The defence of one's self, or the mutual and reciprocal defence of each other by husband and wife, parent and child, master and servant. (d) (427)
For if the party himself, or any one thus related to him, be 1. Self-defence.
forcibly attacked in person or property, it is lawful for him to (d) It is said (Leward v. Basely, 1 Ld. Raym. servitium amisit. But according to 2 Rol. Abr. 62, and Bul. N. P. 18) that a master cannot 546, D. pl. 2; Seaman v. Cuppledick, Owen, justify an assault in defence of his servant, 151 ; Bac. Abr. Master and Servant, P., such because he might have an action per quod an interference by the master is lawful.
(427) A reasonable apprehension of loss of life, or of great and immediate bodily harm, will justify the killing of an assailant, if self-defense appears at the time to be the only mode of escape, although in fact there was no actual danger. Logue v. The Commonwealth, 38 Penn. St. 265 ; Shorter v. The People, 2 N. Y. (2 Comst.) 193; Meredith v. Commonwealth, 18 B. Monr. (Ky.) 49 ; Pond v. People, 8 Mich. 150 ; Maher v. People, 24 Ill. 241; State v. Collins, 32 Iowa, 36; State v. Sloan, 47 Mo. 604.
The same circumstances which will excuse or justify homicide in self-defense will excuso or justify it in defense of one's family, relatives, or servants. Pond v. People, 8 Mich. 150 ; Murphy v. People, 37 III. 447; People v. Campbel, 30 Cal. 312. But they will not justify the taking of life in defense of a concubine. Parker v. State, 31 Tex. 132.
Where the noise and disturbance of a mob is such as to endanger the life of a person who is sick, the same force may be employed in quelling the riot which would be justifiable if the life of such person were endangered by a direct attack. Patten v. People, 18 Mich. 314.
The right to take life in the defense of property is a natural right, as well as in defense of person and habitation ; but the law limits its exercise to the prevention of forcible and atrocious crimes. State v. Moore, 31 Conn. 479. The destruction of the life of a child in parturition, to save the life of the mother, is justifiable. See 2 Whart. Crim. Law, 85 1029,
repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray. (e)
The law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or one to whom he bears so near a connexion) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. The future process of law may be by no means an adequate remedy for an injury accompanied with force; and it is impossible to say, to what wanton lengths of rapine or cruelty an outrage of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is sometimes held to furnish an excuse for a breach of the peace, nay even for homicide itself (f); but care must be taken, that the resistance does not * exceed the bounds of mere defence and prevention; for then the defender would himself become an
[*4] aggressor. (428)
2. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens, when any one has deprived another of his
property in goods or chattels personal, or wrongfully detains one's 3. Recaption.
wife, child, or servant: in which case the owner of the goods, the husband, parent, or master, may lawfully claim and retake such property or person, wherever found; so it be not in a riotous manner, or attended with a breach of the peace (g). The reason for which is obvious; since the owner may have this only opportunity of doing himself justice: his goods might be afterwards conveyed away or destroyed; and his wife, child, or servant, concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore where personal property has been forcibly taken its rightful owner can so contrive as to regain possession of it, without violence or terror, the law favours and will justify his proceeding (h). But as the public peace must be considered rather than any one man's right of property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons
(e) 2 Rol. Abr. 546; 1 Hawk. P. C. 483, s. party who obtained them, for the fraud viti. 23.
ates the sale, and prevents the property from (f) Post, vol. iv.
passing by it, Earl of Bristol v. Wilsmore, 1 (9) 3 Inst. 134; Hale, Anal. s. 46. Where B. & Cr. 514. goods have been obtained with a precon- (h) Burridge v. Nicholetts, 6 H. & N. 383; ceived design of not paying for them, the Smith v. Wright, Id. 821. seller may lawfully retake them from the
(428) The same rule prevails in this country. The taking of life in self-defense is justifi. able only where escape by retreat from immediate and impending danger appears at the time impracticable. People v. Lamb, 2 Keyes, 360; Peoplo v. Sullivan, 7 N. Y. (3 Seld.) 396 ; Shorter v. People, 2 N. Y. (2 Comst.) 193 ; Commonwealth v. Drum, 58 Penn. St. 9. But retreat is not always a condition which must precede the right to self-defense. Creek v. State, 24 Ind. 154; Philips v. Commonwealth, 2 Duvall (Ky.), 328; and see Bohannon v. Commonuealth, 8 Bush (Ky.), 481 ; 8 Am. Rep. 474. A person assaulted in his own dwelling may lawfully resist the assault, even to the taking of life if necessary, without attempting to retreat. M'Pherson v. State, 22 Ga. 478; Pond v. People, 8 Mich. 150. Or if a person is prevented from entering his own house by an intruder, he may lawfully use such force as may be necessary to effect an entrance. DeForest v. State, 21 Ind. 23.
it is provided, that this natural right of recaption shall never be exerted, where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him [*5] on a common, at a fair, or at a public inn, I may lawfully seize * him
to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen (i); but must have recourse to an action at law. (429)
3. As recaption is a remedy given to the party himself, for an injury to his personal property, so, a remedy of the same kind for an injury to real prop3. Re-entry on
erty is sometimes permitted by entry on lands and tenements,
when another person without any right has taken or retains possession thereof. (430) This depends in some measure on like reasons with the former; and like that too must be peaceable and without force or violence which might endanger the public peace. There is some nicety required in defining and distinguishing circumstances in which such entry might be lawful or otherwise; and especially in determining whether notice should be given before re-entry and eviction to the person who is wrongfully in possession (k).
4. A fourth species of remedy by the mere act of the party injured, is the abatement, or removal of a nuisance. (431) What a nuisance is, we shall find
(1) 2 Roll. Rep. 55, 56, 208; 2 Roll. Abr. Harvey v. Bridges, 1 Exch. 261 ; 14 M. & W. 565, 566.
442. (k) Neuton v. Harland, 1 M. & Gr. 644 ;
(429) The law permits a party to resort to every possible means for the recaption of his property, short of a breach of the peace. Spencer v. M'Gowen, 13 Wend. 256 ; Hyatt v. Wood, 4 Johns. 150; Kenny v. Planer, 3 Daly (N. Y.), 131. But it does not permit him to enter upon the premises of a third person, who is not a wrong-doer, for that purpose, with. out first obtaining the owner's permission (Blake v. Jerome, 14 Johns. 406; Newkirk v. Sabler, 9 Barb. 652); and his attempt to do so may be forcibly resisted. Ib.
(430) The statutes of the various States respecting forcible entries and detainers do not affect the right of the owner of real estate, having a right of entry, to enter peaceably upon one who is in possession without right. Hyatt v. Wood, 4 Johns. 150; People v. Fields, 1 Lans. 222 ; Commonwealth v. Rees, 2 Brewst. (Pa.) 561; Winterfield v. Stauss, 24 Wis. 394; Foster v. Kelsey, 36 Vt. 199 ; Tucker v. Phillips, 2 Metc. (Ky.) 416.
One tenant in common has a right to take peaceable possession of the premises owned in common, even though the possession is acquired by stealth. Wood v. Phillips, 43 N. Y. (4 Hand) 152. And in the absence of the occupant no one being left in possession, the party having the legal right to possession may enter upon the premises, although he is obliged to force a door in order to do so. Mussey v. Scott, 32 Vt. 82; State v. Pridgen, 8 Ired. 84.
(431) Whenever a person can maintain an action for a nuisance he may enter and abate it, even though, at the time, it caused but nominal damage. Amoskeag Mauufacturing Co. v. Goodule, 46 N. H. 53 ; Adams v. Barney, 25 Vt. 225 · Casebeer v. Morory, 55 Penn. St. 419.
But if he takes the remedy into his own hands he must proceed in a reasonable manner, doing no unnecessary injury to the adverse party. Great Falls Co. v. Worster, 15 N. H, 412 ; State v. Moffett, 1 Greene (Iowa), 348.
In the removal of a nuisance the party abating it is liable to the owner only for a wanton or unnecessary injury; and, in determining whether this liability exists, the kind of property constituting the nuisance and the attending circumstances must be considered. City of Indianapolis v. Miller, 27 Ind. 394.
But a private person cannot abate a public nuisance unless it obstructs his own right (Brown v. Perkins, 78 Mass. [12 Gray] 89); and occasions him some damage not shared by the rest of the community. Fort Ploin Bridge Co. v. Smith, 30 N. Y. (3 Tiff.) 44; see Francis v. Schoellkopf, 53 N. Y. (8 Sick.) 152.
4. Abatement of nuisance.
a more proper place hereafter to inquire. At present we may
observe generally, that whatsoever unlawfully annoys or does damage to another, is a nuisance; and such nuisance may sometimes be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it (?). If a wall is erected so near to my house that it stops my ancient lights, which is a private nuisance, I may enter my neighbour's land, and peaceably pull it down. Likewise if a bar or gate be wrongfully erected across the public highway, which is a common nuisance, any of the queen's subjects passing that way may, if necessary for the exercise of that right, cut it down and destroy *it (m). And the reason why
[*6] the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy; and cannot wait for the slow progress of the ordinary forms of justice.
Before proceeding to abate a nuisance, a notice to remove it is sometimes requisite (n).
5. A fifth case, in which the law allows a man to be his own
avenger, or to minister redress to himself, is that of distress, whether for rent in arrear or damage feasant, which has been noticed in our preceding volume. (432)
6. The seizing of a heriot when due on the death of a tenant is another species of self-remedy, likewise already noticed (6).
6. Seizure of heriot.
II. Such being the several remedies which may be had by the I Remedy by joint act of all mere act of the party injured, those will next be mentioned the parties.
which arise from the joint act of all the parties. 1. Accord and satisfaction as between the party injuring and the party injured, will bar an action for such injury. If a man contract to build a 1. Accord and
house or deliver a horse, and fail in it; for this breach of consatisfaction.
tract the sufferer may have his remedy by action; but if he accept a sum of money, or other thing, as a satisfaction, this may operate as a a redress of his grievance, and entirely take away his right * of
[*] action (p). (433) But payment of a less sum cannot be per se an accord and satisfaction of a greater ascertained sum (2).
(1) Penruddock's Case, 5 Rep. 100; Baten's would have a right to do it even though the Case, 9 Rep. 55.
owner was there and forbade him. The law (m) Dimes v. Petley, 15 Q. B. 276; Bateman of England appears to me, both in spirit and v. Bluck, 18 id. 870. In Hyde v. Graham, 1 on principle, to prevent persons from redressH. & C. 598, Pollock, C. B., referring to the ing their grievances by their own act." instances above given, “ where a person is (n) Jones v. Williams, 11 M. & W. 176 ; allowed to obtain redress by his own act, as Perry v. Fitzhoue, 8 Q. B. 757; Davies v. Wilwell as by operation of law” (post, p. 11), liams, 16 id. 546; Dimes v. Petley, 15 id. 276. observes that such “occasions are very few,” (0) Ante, vol. ii. and “ might constantly lead to breaches of (p) Blake's Case, 6 Rep. 43; Peytoe's Case, the peace; for if a man has a right to remove 9 Rep. 79. a gate placed across the land of another, he (9) Sibree v. Tripp, 15 M. & W. 23.
(432) Many of the States in the Union have, by express statute, abolished the remedy by distress for rent. See note 217, Vol. 1, ante, 471.
(433) It has been held in some of the United States that a satisfaction moving from a stranger will not constitute a bar to a right of action. Daniels v. Hallenbeck, 19 Wend. 408 ; Clmo v. Borst, 6 Johns. 37; Stark's Adm’rs v. Thompson's Ex'rs, 3 Monr. (Ky.) 296.
Bat this doctrine has not been universally adopted. Leavitt v. Morrow, 6 Ohio St. 71 ;
2. Arbitration is where the parties, injuring and injured, submit matters in dispute, concerning any personal chattel or personal wrong, to the judgment
of two or more arbitrators, who are to decide the controversy; 2. Arbitration.
and if they do not agree, it is usual to add, that another person be called in as umpire (imperator or impar (r)), to whose sole judgment it is then referred (s): or one arbitrator may be originally appointed. The decision, in any such case, is called an award. And, if the award stands, the question is thereby as fully determined, and the right, which was in contest, transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice. The right to real property, however, could
(7") Whart. Angl. Sacr. i. 772 ; Nicols. Scot. (8) See 17 & 18 Vict. c. 125, s. 14. Hist. Libr. ch. 1, prope finem.
Heaton v. Angier, 7 N. H. 397. An accord and satisfaction by one of several joint obligors is valid. Strang v. Holmes, 7 Cow. 224; Knickerbacker v. Colver, 8 id. 111; Merchants’ Bank v. Curtiss, 37 Barb. 317; Ellis v. Bitzer, 2 Ham. 89.
In order that an accord and satisfaction shall be a legal bar to an action it must be full, perfect and complete, Clark v. Dinsmore, 5 N. H. 136 ; Frentress v. Markle, 2 Greene (Iowa), 553. An accord not executed is no bar to an action on a pre-existing demand. Coit v. Houston, 3 Johns. Cas. 243 ; Mayfield v. Cotton, 21 Texas, 1; Blackburn v. Ormsby, 41 Penn. St. 97; Mansur v. Keaton, 46 Me. 346 ; Cushing v. Wyman, 44 id. 121 ; Tuckerman v. Nerohall, 17 Mass. 581; Spring v. Lovett, 11 Pick. 417; Williams v. Stanton, 1 Root (Conn.), 426 ; Woodward v. Miles, 24 N. H. 289. But an agreement to accept a new contract in satisfaction and discharge of a former contract or debt is a good accord executed, whether the new contract is performed or not. Ib.; Thatcher v. Dudley, 2 Root (Conn.), 169 ; Goodrich v. Stanley, 24 Conn. 621; Palmer v. Yuger, 20 Wis. 91 ; Babcock v. IInvokins, 23 Vt. 561. The payment
of a less sum than the full amount of a liquidated demand, and its acceptance in full satisfaction, will not be a bar to an action for the residue. Harriman v. Harriman, 12 Gray (Mass.), 341 ; Bunge v. Koop, 48 N. Y. (3 Sick.) 225 ; Warren v. Skinner, 20 Conn. 561 ; Rose v. Hall, 26 id. 395; llarper v. Graham, 20 Ohio, 105 ; Matheroson v. Strafford Bank, 45 N. H. 104; Williams v. Langford, 15 B. Monr. (Ky.) 566 ; Markel v. Spilter, 28 Ind. 488 ; Ryan v. Ward, 48 N. Y. (3 Sick.) 204.
But part payment of an unliquidated demand, or of a disputed demand, will be a bar to an action for the residue, if accepted in full satisfaction of the demand. McDaniel v. Lapham, 21 Vt. 222 ; Bateman v. Daniels, 5 Blackf. (Ind.) 71 ; Palmerton v. Ilurford, 4 Denio, 166; Pierce v. Pierce, 25 Barb. 243: Marvin v. Treat, 37 Conn. 96 ; 9 Am. Rep. 307.
So the acceptance of a sum less than is due in full satisfaction of a demand will operate as a bar to an action for the recovery of the residue, if the part payment was made before the debt was due (Harper v. Graham, 20 Ohio, 105; Goodnou v. Smith, 18 Pick. 414; Brooks v.White, 2 Metc. [Mass.] 283); or at another place than that stipulated. Harper v. Graham, 20 Ohio, 105; Rose v. Hall, 26 Conn. 295; Fenwick v. Phillips, 3 Metc. (Ky.) 88; Smith v. Brown, 3 Hawks. (N. C.) 580.
So the delivery and acceptance of any collateral thing of any value, though less than the amount of the debt or demand, will be a bar to an action, if delivered and received as a satisfaction for the claim. Blynn v. Chester, 5 Day, 360 ; Le Page v. McCrea, 1 Wend. 164; and see Reed v. Bartlett, 19 Pick. 273.
The acceptance of the note of a third person in full payment of a demand. Kellogg v. Richards, 14 Wend. 116 ; Le Page v. McCrea, 1 id. 164; Brooks v. White, 2 Metc. (Mass.) 283 ; Stagg v. Alexander, 55 Barb. 70. Or of the debtor's note with security. Boyd v. Ilitchcock, 20 Johns. 76.
Or even the negotiable note of the debtor himself, for a less sum than the original demand, may be pleaded as an accord and satisfaction in bar of an action to recover more than the amount secured by such note. Harper v. Graham, 20 Ohio, 105 ; see 2 Am. Lead. Cas. 263. The payment of any sum accepted as a satisfaction of damages for a personal injury is sufficient. Lourie v. Verner, 3 Watts (Penn.), 317.
In some of the United States the effect of part payment in satisfaction of a demand has been declared by statute.