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

whatever, unless she has had a promise of marriage, can a woman herself obtain any reparation for the injury fhe has fuftained from the feducer of her virtue. And even where her weakness and credulity have been impofed upon by the most folemn promises of marriage, unless they have been overheard or made in writing, fhe cannot recover any compenfation, being incapable of giving evidence in her own caufe. Nor can a parent maintain any action in the temporal courts against the person who has done this wrong to his family, and to his honour and happiness, but by stating and proving, that from the consequences of the seduction his daughter is lefs able to affist him as a fervant, or that the seducer in the purfuit of his daughter was a trefpaffer upon his premifes. Hence no action can be maintained for the feduction of a daughter, which is not attended with a loss of service or an injury to property. Therefore, in that action for feduction which is in most general use, viz. a per quod fervitium amifit, the father must prove that his daughter, when seduced, actually affifted in fome degree, however inconfiderable, in the housewifery of his family; and that she has been rendered less ferviceable 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 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. Wilfon, in a cafe upon the northern circuit, was of opinion, that a young woman who was upon a vifit at a relation's house, and was there seduced, 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 witness, and is generally produced to prove the fact of the feduction. But in fuch cases, as in actions for adultery, the damages are estimated from the rank and fituation of the parent, or from the degree of affliction which, under all the cir cumftances, he may be fuppofed to fuffer. It fhould 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

related by the breach and diffolution of either the relation itself, or at leaft 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 feparate intereft 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 species of criminal prosecution allowed them, in the nature of a civil fatisfaction; which is called an appeal, and which will be confidered in the next book. And fothe fervant, whofe mafter is difabled, does not thereby lose his maintenance or wages. He had no property in his mafter; 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 imprifonment which fuch mafter maj happen to endure.

woman refides; efpecially if the cafe be fuch that she can bring no action herfelf: 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 has illegally entered the father's house; in which action the debauching his daughter may be ftated and proved as an aggravation of the trespass. 2 T. R. 166:

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 circumftances, for the injury he has fuftained by the feduction of his daughter.

AN

CHAPTER THE NINTH.

OF INJURIES TO PERSONAL
PROPERTY.

IN

'N the preceding chapter we confidered the wrongs or injuries that affected the rights of perfons, either considered as individuals, or as related to each other; and are at prefent to enter upon the discussion of such injuries as affect the rights of property, together with the remedies which the law has given to repair or redrefs them.

AND here again we must follow our former divifion1 of property into perfonal and real: perfonal, which confifts 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 perfon, nor can be moved from the place in which they fubfift.

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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 perfonal property in poffeffion, and then thofe that are in action only.

I. THE rights of perfonal property in poffeffion are liable to two fpecies of injuries: the amotion or deprivation of that poffeffion; and the abufe or damages of the chattels, while the poffeffion continues in the legal owner. The former, or deprivation of poffeffion, is alfo 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 preferved and transferred 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 fociety, 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 invasions: 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 moft strong, or the moft 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 consideration is, what remedy the law of England has given for it. And this is, in the firft place, the reftitution of the goods themselves fo wrongfully taken, with [146] damages for the lofs fuftained by such unjust invasion; which is effected by action of replevin: an inftitution, which the mirror afcribes to Glanvil, chief justice 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 presently 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 fo tranfitory and perishable, that it is for the most part impoffible either to afcertain their identity, or to reftore 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 distress, the goods are from the firft taking in the cuftody of the law, and not merely in that of the distreinor; and therefore they may not only be identified, but also restored to their first poffeffor, without any material change in their condition. And, being thus in the cuftody 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 refcous, 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 arrested, from the officer who is carrying him to prifon. In which circumftances the plaintiff has a fimilar remedy by action on the case, or of rescous : or, if the sheriff makes a return of such [147] refcous to the court out of which the process iffued, the refcuer will be punished by attachment".

AN action of replevin, the regular way of contefting the validity of the tranfaction, is founded, I said, upon a distress taken wrongfully and without fufficient caufe: being a redelivery of the pledge, or thing taking in diftrefs, to the