PRIVATE WRONGS.
BOOK III.

CHAPTER THE EIGHTH.

OF WRONGS, AND THEIR REMEDIES, RESPECTING
THE RIGHTS OF PERSONS.

THE former chapters of this part of our commentaries having been employed in defcribing the feveral methods of redreffing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and feveral fpecies of courts; together with the cognizance of wrongs or injuries by private or fpecial tribunals, and the public ecclefiaftical, military, and maritime jurifdictions of this kingdom: I come now to confider at large, and in a more particular manner, the refpective remedies in the public and general courts of common law for injuries or private wrongs of any denomination whatfoever, no exclufively appropriated to any of the former tribunals. And herein I fhall, firft, define the feveral injuries cognizable by the courts of common law, with the refpective remedies applicable to each particular injury: and fhall, fecondly, defcribe the method of purfuing and obtaining thefe remedies in the feveral courts.

FIRFT then, as to the feveral injuries cognizable by the courts of common law, with the refpective remedies applicable to each particular injury. And, in treating of thefe, I fhall at prefent confine myfelf to fuch wrongs as may be committed in the mutual intercourfe between fubject and fubject; which the king as the fountain of juftice is officially bound too redrefs in the or-
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dinary
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dinary forms of law: referving fuch injuries or encroachments as may occur between the crown and the fubject, to be diftinctly confidered hereafter; as the remedy in fuch cafes is generally of a peculiar and eccentrical nature.

NOW, as all wrong may be confidered as merely a privation of right, the one natural remedy for every fpecies of wrong is the being put in poffeffion of that right, whereof the party injured is deprived. This may either be effected by a fpecific delivery or reftoration of the fubject-matter in difpute to the legal owner; as when lands or perfonal chattels are unjuftly withheld or invaded: or, where that is not a poffible, or at leaft not an adequate remedy, by making the fufferer a pecuniary fatisfaction in damages; as in cafe of affault, breach of contract, &c: to which damages the party injured has acquired an incomplete or inchoate right, the inftant he receives the injury ^a; though fuch right be not fully afcertained till they are affeffed by the intervention of the law. The inftruments whereby this remedy is obtained (which are fometimes confidered in the light of the remedy itfelf) are a diverfity of fuits and actions, which are defined by the mirrour ^b to be “the lawful demand of one's right:” or as Bracton and Fleta exprefs it, in the words of Juftinian ^c, jus profequendi in judicio quod alicui debetur.

THE Romans introduced, pretty early, fet forms for actions and fuits in their law, after the example of the Greeks, and made it a rule that each injury fhould be redreffed by it's proper remedy only. “Actiones, fay the pandects, compofitae funt, quibus inter fe hominess difceptarent, quas actions ne populus prout “vellet inftitueret, certas folennefque effe voluerunt ^d.” The forms of thefe actions were originally preferved in the books of the pontifical college, as choice and ineftimable fecrets, till one Cneius Flavius, the fecretary of Appius Claudius, ftole a copy and publifhed them to the people ^e. The concealment was ridiculous:

.{FS}
^a See book II. ch. 29.
^b c. 2. §. 1.
^c Inft. 4. 6. pr.
^d Ff. 1. 2. 2. §. 6.
^e Cio. Pro Muraena. §. 11. de orat. L. 1. c. 41.
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but
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but the eftablifhment of fome ftandard was undoubtedly neceffary, to fix the true ftate of queftion of right; left in a long and arbitrary procefs it might be fhifted continually, and be at length no longer difcernible. Or, as Cicero expreffes it ^f, “funt “jura, funt formulae, de omnibus rebus conftitutae, ne quis aut in “genere injuriae, aut in ratione actionis, errare poffit. Expreffae “enim funt ex uniufcujufque damno, dolore, incommodo, calamitate, “injuria, publicae a praetore formulae, ad quas privata lis accommodatur.” And in the fame manner our Bracton, fpeaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unlefs by authority of parliament ^g. And all the modern legiflators of Europe have found it expedient from the fame reafons to fall into the fame or a fimilar method. With us in England the feveral fuits, or remedial inftruments of juftice, are from the fubject of them diftinguifhed into three kinds; actions perfonal, real, and mixed.

PERSONAL actions are fuch whereby a man claims a debt, or perfonal duty, or damages in lieu thereof; and likewife whereby a man claims a fatisfaction in damages for fome injury done to his perfon or property. The former are faid to be founded on contracts, the latter upon torts or wrongs: and they are the fame which the civil law calls “actions in perfonam, quae adverfus eum “intenduntur, qui ex contractu vel delicto obligatus eft aliquid dare “vel concedere ^h.” Of the former nature are all actions upon debt or promifes; of the latter all actions for trefpaffes, nufances, affaults, defamatory words, and the like.

REAL actions, (or, as they are called in the mirror ^I, feodal actions) which concern real property only, are fuch whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in

.{FS}
^f Pro Qu. Rofcio. §. 8.
^g Sunt quaedam brevia formata fuper certis cafibus de curfu, et de communi confilio totius vergni approbata et conceffa, auae quidem nullatenus mutari poterint abfque confenfu et voluntate corum. (l. 5. de exceptionibus. c. 17. §. 2.)
^h Inft. 4. 6. 15.
^I c. 2. §. 6.
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fee-
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fee-fimple, fee-tail, or for term of life. By thefe actions formerly all difputes concerning real eftates were decided ; but they are now pretty generally laid afide in practice, upon account of the great nicety required in their management, and the inconvenient length of their procefs : a much more expeditious method of trying titles being fince introduced, by other actions perfonal and mixed.

MIXED actions are fuits partaking of the nature of the other two, wherein fome real property is demanded, and alfo perfonal damages for a wrong fuftained. As for inftance, an action of wafte : which is brought by him who hath the inheritance, in remainder or reverfion, againft the tenant for life, who hath committed wafte therein, to recover not only the land wafted, which would make it merely a real action ; but alfo treble damages, in purfuance of the ftatute of Glocefter ^k, which is a perfonal recompence ; and fo both, being joined together, denominate it a mixed action.

UNDER thefe three heads may every fpecies of remedy by fuit or action in the courts of common law be comprized. But in order effectually to apply the remedy, it is firft neceffary to afcertain the complaint. I proceed therefore now to enumerate the feveral kinds, and to enquire into the refpective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's perfon or his property ; recounting at the fame time the refpective remedies, which are furnifhed by the law for every infraction of right. But I muft firft beg leave to premife, that all civil injuries are of two kinds, the one without force or violence, as flander or breach of contract ; the other coupled with force and violence, as batteries, or falfe imprifonment ^l . Which latter fpecies favour fomething of the criminal kind, being always attended with fome violation of the peace ; for which in ftrictnefs of law a fine ought to be paid to the king,

{FS}
^k 6 Edw I. C. 5.
^l Finch. L. 184.
as
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as well as private fatisfaction to the party injured ^m. And this diftinction of private wrongs, into injuries with and without force, we fhall find to run through all the variety of which we are now to treat. In confidering of which, I fhall follow the fame method, that was purfued with regard to the diftribution of rights : for as thefe are nothing elfe but an infringement or breach of thofe rights, which we have before laid down and explained, it will follow that this negative fyftem, of wrongs, muft correfpond and tally with the former pofitive fyftem, of rights. As therefore we divided ⁿ all rights into thofe of perfons, and thofe of things, fo we muft make the fame general diftribution of injuries into fuch as affect the rights of perfons, and fuch as affect the rights of property.

THE rights of perfons, we may remember, were diftributed into abfolute and relative : abfolute, which were fuch as appertained and belonged to private men, confidered merely as individuals, or fingle perfons ; and relative, which were incident to them as members of fociety, and connected to each other by various ties and relations. And the abfolute rights of each individual were defined to be the right of perfonal fecurity, the right of perfonal liberty, and the right of private property : fo that the wrongs or injuries affecting them muft confequently be of a correfpondent nature.

I. AS to injuries which affect the perfonal fecurity of individuals, they are either injuries againft their lives, their limbs, their bodies, their health, or their reputations.

1. WITH regard to the firft fubdivifion, or injuries affecting the life of man, they do not fall under our prefent contemplation ; being one of the moft atrocious fpecies of crimes, the fubject of the next book of our commentaries.

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^m Finch. L. 198. Jenk. Cent. 185.
ⁿ See book I. Ch. 1.
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2, 3. THE
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2, 3. The two next fpecies of injuries, affecting the limbs or bodies of individuals, I fhall confider in one and the fame view. And thefe may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man's bufinefs is interrupted. A menace alone, without a confequent inconvenience, makes not the injury ; but, to complete the wrong, there muft be both of them together ^o. The remedy for this is in pecuniary damages, to be recovered by action of trefpafs vi et armis ^p, this being an inchoate, though not an abfolute, violence. 2. By affault ; which is an attempt or offer to beat another, without touching him : as if one lifts up his cane, or his fift, in a threatning manner at another ; or ftrikes at him, but miffes him ; this is an affault, infultus, which Finch ^q defcribes to be “ an unlawful fetting upon one's perfon.” This alfo is an inchoate violence, amounting confiderably higher than bare threats ; and therefore, though no actual fuffering is proved, yet the party injured may have redrefs by action of trefpafs vi et armis ; wherein he fhall recover damages as a compenfation for the injury. 3. By battery ; which is the unlawful beating of another. The leaft touching of another's perfon wilfully, or in anger, is a battery ; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the firft and loweft ftage of it : every man's perfon being facred, and no other having a right to meddle with it, in any the flighteft manner. And therefore upon a fimilar principle the Cornelian law de injuriis prohibited pulfation as well as verberation ; diftinguifhing verberation, which was accompanied with pain, from pulfation which was attended with none ^r. But battery is, in fome cafes, juftifiable or lawful ; as where one who hath authority, a parent or mafter, gives moderate correction to his child, his fcholar, or his apprentice. So alfo on the principle of felf-defence : for if one ftrikes me firft, or even only affaults me, I may ftrike in my own defence ; and, if fued for it, may plead fon affault demefne, or that it was the plaintiff's own ori-

{FS}
^o Finch. L. 202.
^p Regiftr. 104. 27 Aff. 11. 7 Edw IV. 24.
^q Finch. L. 202.
^r Ff. 47. 10. 5.
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ginal affault that occafioned it. So likewife in defence of my goods or poffeffion, if a man endeavours to deprive me of them, I may juftify laying hands upon him to prevent him ; and in cafe he perfifts with violence, I may proceed to beat him away ^r. Thus too in the exercife of an office, as that of church-warden or beadle, a man may lay hands upon another to turn him out of church, and prevent his difturbing the congregation ^s And, if fued for this or the like battery, he may fet forth the whole cafe, and plead that he laid hands upon him gently, molliter manus impofuit, for this purpofe. On account of thefe caufes of juftification, battery is defined to be the unlawful beating of another ; for which the remedy is, as for affault, by action of trefpafs vi et armis : wherein the jury will give adequate damages. 4. By mayhem or wounding ; which is an injury ftill more atrocious, and confifts in violently depriving another of the ufe of a member proper for his defence in fight. This is a battery, attended with this aggravating circumftance, that thereby the party injured is for ever difabled from making fo good a defence againft future external injuries, as he otherwife might have done. Among thefe defenfive members are reckoned not only arms and legs, but a finger, an eye, and a fore-tooth ^t, and alfo fome others ^u. But the lofs of one of the jaw-teeth, the ear, or the nofe, is no mayhem at common law ; as they can be of no ufe in fighting. The fame remedial action of trefpafs vi et armis lies alfo to recover damages for this injury ; an injury, which (when wilful) no motive can juftify, but neceffary felf-prefervation. If the ear be cut off, treble damages is given by ftatute 37 Hen. VIII. c. 6. though this is not mayhem at common law. And here I muft obferve, that for thefe three laft injuries, affault, battery, and mayhem, an indictment may be brought as well as an action ; and frequently both are accordingly profecuted : the one at the fuit of the crown for the crime againft the public ; the other at the fuit of the party injured, to make him a reparation in damages.

{FS}
^r Finch. L. 203.
^s 1 Sid. 301.
^t Finch. L. 204.
^u 1 Hawk. P. C. 111.
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VOL. III.
Q
4. INJURIES
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4. INJURIES, affecting a man's health, are where by any unwholefome practices of another a man fuftains any apparent damage in his vigour or conftitution. As by felling him bad provifions or wine ^w ; by the exercife of a noifome trade, which infects the air in his neighbourhood ^x ; or by the neglect or unfkilful management of his phyfician, furgeon, or apothecary. For it hath been folemnly refolved ^y, that mala praxis is a great mifdemefnor and offence at common law, whether it be for curiofity and experiment, or by neglect ; becaufe it breaks the truft which the party had placed in his phyfician, and tends to the patient's deftruction. Thus alfo, in the civil law ^z, neglect or want of fkill in phyficians and furgeons “ culpae adnumerantur ; veluti fi medicus curationem dereliquerit, male quempiam fecuerit, aut perperam ei medicamentum dederit.” There are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a fpecial action of trefpafs, upon the cafe. This action, of trefpafs, or tranfgreffion, on the cafe, is an univerfal remedy, given for all perfonal wrongs and injuries without force ; fo called, becaufe the plaintiff's whole cafe or caufe of complaint is fet forth at length in the original writ ^a. For though in general there are methods prefcribed and forms of action previoufly fettled, for redreffing thofe wrongs which moft ufually occur, and in which the very act itfelf is immediately prejudicial or injurious to the plaintiff's perfon or property, as battery, non-payment of debts, detaining one's goods, or the like ; yet where any fpecial confequential damage arifes which could not be fore-

{FS}
^w 1 Roll. Abr. 90.
^x 9 Rep. 57. Hutt. 135.
^y Lord Raym. 214.
^z Inft 4. 3. 6 & 7.
^a For example : “ Rex vicecomiti falutem. Si A fecerit te fecurum de clamore fuo profequendo, tune pone per vadium et falvos plegios B, quod fit coram juftitiariis noftris apud Weftmonafterium in octabis fancti Michaelis, oftenfurus quare cum idem B ad dextrum oculum ipfius A cafualiter laefum bene et competenter curandum apud S. pro quadam pecuniae fumma prae manibus foluta affumpfiffet, idem B curam fuam circa oculum praedictum tam negligenter et improvide oppofuit, quod idem A defectu ipfius B vifum oculi predicti totaliter amifit, ad damnum ipfius A viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Tefle meipfo apud Weftmonafterium & c.” (Regiftr. Brev. 105.)
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feen and provided for in the ordinary courfe of juftice, the party injured is allowed, both by common law and the ftatute of Weftm. 2. c. 24. to bring a fpecial action on his own cafe, by a writ formed according to the peculiar circumftances of his own particular grievance ^b. For wherever the common law gives a right or prohibits an injury, it alfo gives a remedy by action ^c ; and therefore, wherever a new injury is done, a new method of remedy muft be purfued ^d. And it is a fettled diftinction ^e, that where an act is done which is in itfelf an immediate injury to another's perfon or property, there the remedy is ufually by an action of trefpafs vi et armis : but where there is no act done, but only a culpable omiffion ; or where the act is not immediately injurious, but only by confequence and collaterally ; there no action of trefpafs vi et armis will lie, but an action on the fpecial cafe, for the damages confequent on fuch omiffion or act.

5. LASTLY ; injuries affecting a man's reputation or good name are, firft, by malicious, fcandalous, and flanderous words tending to his damage and derogation. As if a man, malicioufly and falfely, utter any flander or falfe tale of another : which may either endanger him in law, by impeaching him of fome heinous crime, as to fay that a man hath poifoned another, or is perjured ^f ; or which may exclude him from fociety, as to charge him with having an infectious difeafe ; or which may impair or hurt his trade or livelyhood, as to call a tradefman a bankrupt, a phyfician a quack, or a lawyer a knave ^g. Words fpoken in derogation of a peer, a judge, or other great officer of the realm, which are called fcandalum magnatum, are held to be ftill more heinous ^h ; and, though they be fuch as would not be actionable in the cafe of a common perfon, yet when fpoken in difgrace of fuch high and refpectable characters, they amount to an atrocious injury : which is redreffed by an action on the cafe

{FS}
^b See pag 51.
^c 1 Salk. 20. 6 Mod. 54.
^d Cro. Jac. 478.        
^e 11 Mod. 180. Lord Raym. 1402. Stra. 635.
^f Finch. L. 185.
^g Ibid. 186.
^h 1 Ventr. 60.
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Q q
founded
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founded on many antient ftatutes ⁱ ; as well on behalf of the crown, to inflict the punifhment of imprifonment on the flanderer, as on behalf of the party, to recover damages for the injury fuftained. Words alfo tending to fcandalize a magiftrate, or perfon in a public truft, are reputed more highly injurious than when fpoken of a private man ^k. It is faid, that formerly no actions were brought for words, unlefs the flander was fuch, as (if true) would endanger the life of the object of it ^l. But, too great encouragement being given by this lenity to falfe and malicious flanderers, it is now held that for fcandalous words of the feveral fpecies before-mentioned, that may endanger a man in law, may exclude him from fociety, may impair his trade, or may affect a peer of the realm, a magiftrate, or one in public truft, an action on the cafe may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import fuch defamation as will of courfe be injurious, it is neceffary that the plaintiff fhould aver fome particular damage to have happened ; which is called laying his action with a per quod. As if I fay that fuch a clergyman is a baftard, he cannot for this bring any action againft me, unlefs he can fhew fome fpecial lofs by it ; in which cafe he may bring his action againft me, for faying he was a baftard, per quod he loft the prefentation to fuch a living ^m. In like manner to flander another man's title, by fpreading fuch injurious reports as, if true, would deprive him of his eftate (as to call the iffue in tail, or one who hath land by defcent, a baftard) is actionable, provided any fpecial damage accrues to the proprietor thereby ; as if he lofes an opportunity of felling the land ⁿ. But mere fcurrility, or opprobrious words, which neither in themfelves import, nor are in fact attended with, any injurious effects, will not fupport an action. So fcandals, which concern matters

{FS}
ⁱ Weftm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11.
^k Lord Raym. 1369.
^l 2 Vent. 28.
^m 4 Rep. 17. 1 Lev. 248.
ⁿ Cro. Jac. 213. Cro. Eliz. 197.
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merely
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merely fpiritual, as to call a man heretic or adulterer, are cognizable only in the ecclefiaftical court ^o ; unlefs any temporal damage enfues, which may be a foundation for a per quod. Words of heat and paffion, as to call man rogue and rafcal, if productive of no ill confequence, and not of any of the dangerous fpecies before-mentioned, are not actionable : neither are words fpoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumftance of ill will : for, in both thefe cafes, they are not malicioufly fpoken, which is part of the definition of flander ^p. Neither (as was formerly hinted ^q) are any reflecting words made ufe of in legal proceedings, and pertinent to the caufe in hand, a fufficient caufe of action for flander ^r. Alfo if the defendant be able to juftify, and prove the words to be true, no action will lie ^s, even though fpecial damage hath enfued : for then it is no flander or falfe tale. As if I can prove the tradefman a bankrupt, the phyfician a quack, the lawyer a knave, and the divine a heretic, this will deftroy their refpective actions ; for though there may be damage fufficient accruing from it, yet, if the fact be true, it is damnum abfque injuria ; and where there is no injury, the law gives no remedy. And this is agreeable to the reafoning of the civil law ^t: “ eum, qui nocentem infamat, non eft aequum et bonum ob eam rem condemnari ; delicta enim nocentium nota effe oportet et expedit.”

A SECOND way of affecting a man's reputation is by printed or written libels, pictures, figns, and the like ; which fet him in an odious or ridiculous ^u light, and thereby diminifh his reputation. With regard to libels in general, there are, as in many other cafes, two remedies ; one by indictment and another by action. The former for the public offence ; for every libel has a tendency to break the peace, or provoke others to break it : which offence is the fame whether the matter con-

{FS}
^o Noy. 64. 1 Freem. 277.
^p Finch. L. 186. 1 Lev. 82. Cro. Jac. 91.
^q pag. 29.
^r Dyer. 285. Cro. Jac. 90.
^s 4 Rep. 13.
^t Ff. 47. 10. 18.
^u 2 Show. 314. 11 Mod. 99.
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tained
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tained be true or falfe ; and therefore the defendant, on an indictment for publifhing a libel, is not allowed to alledge the truth of it by way of juftification ^w. But in the remedy by action on the cafe, which is to repair the party in damages for the injury done him, the defendant may, as for words fpoken, juftify the truth of the facts, and fhew that the plaintiff has received no injury at all ^x. What was faid with regard to words fpoken, will alfo hold in every particular with regard to libels by writing or printing, and the civil actions confequent thereupon : but as to figns or pictures, it feems neceffary always to fhew, by proper innuendo's and averments of the defendant's meaning, the import and application of the fcandal, and that fome fpecial damage has followed ; otherwife it cannot appear, that fuch libel by picture was underftood to be levelled at the plaintiff, or that it was attended with any actionable confequences.

A THIRD way of deftroying or injuring a man's reputation is, by preferring malicious indictments or profecutions againft him ; which, under the mafk of juftice and public fpirit, are fometimes made the engines of private fpite and enmity. For this however the law has given a very adequate remedy in damages, either by an action of confpiracy ^y, which cannot be brought but againft two at the leaft ; or, which is the more ufual way, by a fpecial action on the cafe for a falfe and malicious profecution ^z. In order to carry on the former (which gives a recompenfe for the danger to which the party has been expofed) it is neceffary that the plaintiff fhould obtain a copy of the record of his indictment and acquittal ; but, in profecutions for felony, it is ufual to deny a copy of the indictment, where there is any, the leaft, probable caufe to found fuch profecution upon ^a. For it would be a very great difcouragement to the public juftice of the kingdom, if profecutors, who had a tolerable ground of fufpicion, were liable to be fued at law whenever their indictments

{FS}
^w 5 Rep. 125.
^x 11 Mod. 99.
^y Finch. L. 605.
^z F. N. B. 116.
^a Carth, 421. Lord Raym. 253.
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mifcarried
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mifcarried. But an action for a malicious profecution may be founded on fuch an indictment whereon no acquittal can be ; as if it be rejected by the grand jury, or be coram non judice, or be infufficiently drawn. For it is not the danger of the plaintiff, but the fcandal, vexation, and expenfe, upon which this action is founded ^b. However, any probable caufe for preferring it is fufficient to juftify the defendant.

II. WE are next to confider the violation of the right of perfonal liberty. This is effected by the injury of falfe imprifonment, for which the law has not only decreed a punifhment, as a heinous public crime, but has alfo given a private reparation to the party ; as well by removing the actual confinement for the prefent, as, after it is over, by fubjecting the wrongdoer to a civil action, on account of the damage fuftained by the lofs of time and liberty.

TO conftitute the injury of falfe imprifonment there are two points requifite : 1. The detention of the perfon ; and, 2. The unlawfulnefs of fuch detention. Every confinement of the perfon is an imprifonment, whether it be in a common prifon, or in a private houfe, or in the ftocks, or even by forcibly detaining one in the public ftreets ^c. Unlawful, or falfe, imprifonment confifts in fuch confinement or detention without fufficient authority : which authority may arife either from fome procefs from the courts of juftice ; or from fome warrant from a legal officer having power to commit, under his hand and feal, and expreffing the caufe of fuch commitment ^d ; or from fome other fpecial caufe warranted, for the neceffity of the thing, either by common law, or act of parliament ; fuch as the arrefting of a felon by a private perfon without warrant, the impreffing of mariners for the public fervice, or the apprehending of waggoners for mifbehaviour in the public fervice, or the apprehending of waggoners for mifbehaviour in the public highways ^e. Falfe imprifonment alfo may arife by executing a lawful warrant or procefs at an unlaw-

{FS}
^b 10 Mod. 219. Stra. 691.
^c 2 Inft. 589.
^d Ibid. 46.
^e Stat 7 Geo. III. c. 42.
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ful
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ful time, as on a funday ^f ; or in a place privileged from arrefts, as in the verge of the king's court. This is the injury. Let us next fee the remedy : which is of two forts ; the one removing the injury, the other making fatisfaction for it.

THE means of removing the actual injury of falfe imprifonment, are fourfold. 1. By writ of mainprize. 2. By writ de odio et atia. 3. by writ de homine replegiando. 4. By writ of habeas corpus.

1. THE writ of mainprize, manucaptio, is a writ directed to the fheriff, (either generally, when any man is imprifoned for a bailable offence, and bail hath been refufed ; or fpecially, when the offence or caufe of commitment is not properly bailable below) commanding him to take fureties for the prifoner's appearance, ufually called mainpernors, and to fet him at large ^g. Mainpernors differ from bail, in that a man's bail may imprifon or furrender him up before the ftipulated day of appearance ; main-pernors can do neither, but are barely fureties for his appearance at the day : bail are only fureties, that the party be anfwerable for the fpecial matter for which they ftipulate ; main-pernors are bound to produce him to anfwer all charge whatfoever ^h.

2. THE writ de odio et atia was antiently ufed to be directed to the fheriff, commanding him to enquire whether a prifoner charged with murder was committed upon juft caufe of fufpicion, or merely propter odium et atiam, for hatred and ill-will ; and, if upon the inquifition due caufe of fufpicion did not appear, then there iffued another writ for the fheriff to admit him to bail. This writ, according to Braction ⁱ, ought not to be denied to any man ; it being expreffly ordered to be made out gratis, without any denial, by magna carta, c. 26. and ftatute Weftm. 2.

{FS}
^f Stat. 29 Car. II. c. 7.
^g F. N. B. 250. 1 Hal. P. C. 141. Coke on bail and mainpr. Ch. 10.
^h Co. ibid. ch. 3.
ⁱ l. 3. tr. 2. c. 8.
{FE}
13 Edw. I.
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13 Edw. I. c. 29. But the ftatute of Glocefter, 6 Edw. I. c. 9. reftrained it in the cafe of killing by mifadventure or felf-defence, and the ftatute 28 Edw. III. c. 9. abolifhed it in all cafes whatfoever : but as the ftatute 42 Edw. III. c. 1. repealed all ftatutes then in being, contrary to the great charter, fir Edward Coke is of opinion ^k that the writ de otio et atia was thereby revived.

3. THE writ de homine replegiando ^l lies to replevy a man out of prifon, or out of the cuftody of any private perfon, (in the fame manner that chattels taken in diftrefs may be replevied, of which in the next chapter) upon giving fecurity to the fheriff that the man fhall be forthcoming to anfwer any charge againft him. And, if the perfon be conveyed out of the fheriff's jurifdiction, the fheriff may return that he is eloigned, elongatus ; upon which a procefs iffues (called a capias in withernam) to imprifon the defendant himfelf, without bail or mainprize ^m, till he produces the party. But this writ is guarded with fo many exceptions ⁿ, that it is not an effectual remedy in numerous inftances, efpecially where the crown is concerned. The incapacity therefore of thefe three remedies to give complete relief in every cafe hath almoft intirely antiquated them, and hath caufed a general recourfe to be had, in behalf of perfons aggrieved by illegal imprifonment, to

4. THE writ of habeas corpus, the moft celebrated writ in the Englifh law. Of this there are various kinds made ufe of by the courts at Weftminfter, for removing prifoners from one court into another for the more eafy adminiftration of juftice. Such is the habeas corpus ad refpondendum, when a man hath a coufe of action againft one who is confined by the procefs of fome inferior court ; in order to remove the prifoner, and charge him with

{FS}
^k 2 Inft. 43. 55. 315.
^l F. N. B. 66.
^m Raym. 474.
ⁿ Nifi captus eft per fpeciale praeceptum noftrum, vel capitalis juftifiarii noftri, vel pro morte hominus, vel pro forefiet noftra, vel pro aliquo alio retto, quare fecundum confuctudinem Angliae non fint replegiabilis. (Regiftr. 77.)
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this new action in the courts above ^o. Such is that ad fatisfaciendum, when a prifoner hath had judgment againft him in an action, and the plaintiff is defirous to bring him up to fome fuperior court to charge him with procefs of execution ^p. Such alfo are thofe ad profequendum, teftificandum, deliberandum, deliberandum, & c ; which iffue when it is neceffary to remove a prifoner, in order to profecute or bear teftimony in any court, or to be tried in the proper jurifdiction wherein the fact was committed. Such is, laftly the common writ ad faciendum et recipiendum, which iffues out of any of the courts of Weftminfter-hall, when a perfon is fued in fome inferior jurifdiction, and is defirous to remove the action into the fuperior court ; commanding the inferior judges to produce the body of the defendant, together with the day and caufe of his caption and detainer (whence the writ is frequently denominated an habeas corpus cum caufa) to do and receive whatfoever the king's court fhall confider in that behalf. This is a writ grantable of common right, without any motion in court ^q ; and it inftantly fuperfedes all proceedings in the court below. But, in order to prevent the furreptitious difcharge of prifoners, it is ordered by ftatute 1 & 2 P. & M. c. 13. that no habeas corpus fhall iffue to remove any prifoner out of any gaol, unlefs figned by fome judge of the court out of which it is awarded. And, to avoid vexatious delays by removal of frivolous caufes, it is enacted by ftatute 21 Jac. I. c. 23. that, where the judge of an inferior court of record is a barrifter of three years ftanding, no caufe fhall be removed from thence by habeas corpus or other writ, after iffue or demurrer deliberately joined : that no caufe, if once remanded to the inferior court by writ of procedendo or otherwife, fhall ever afterwards be again removed : and that no caufe fhall be removed at all, if the debt or damages laid in the declaration do not amount to the fum of five pounds. But an expedient ^r having been found out to elude the latter branch of the ftatute, by procuring a nominal plaintiff to bring another action for five pounds or upwards, (and then by the courfe of the court

{FS}
^o 2 Mod. 198.
^p 2 Lilly prac. Reg. 4.
^q 2 Mod. 306.
^r Bohun inftit. Legal. 85. edit. 1708.
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the
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the habeas corpus removed both actions together) it is therefore enacted by ftatute 12 Geo. I. c. 29. that the inferior court may proceed in fuch actions as are under the value of five pounds, notwithftanding other actions may be brought againft the fame defendant to a greater amount.

BUT the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad fubjiciendum ; directed to the perfon detaining another ; and commanding him to produce the body of the prifoner with the day and caufe of his caption and detention, ad faciendum, fubjiciendum, et recipiendum, to do, fubmit to, and receive, whatfoever the judge or court awarding fuch writ fhall confider in that behalf ^s. This is a high prerogative writ, and therefore by the common law iffuing out of the court of king's bench not only in term-time, but alfo during the vacation ^t, by a fiat from the chief juftice or any other of the judges, and running into all parts of the king's dominions : for the king is at all times intitled to have an account, why the liberty of any of his fubjects is reftrained ^u, wherever that reftraint may be inflicted. If it iffues in vacation, it is ufually returnable before the judge himfelf who awarded it, and he proceeds by himfelf thereon ^w ; unlefs the term fhould intervene, and then it may be returned in court ^x. Indeed, if the party were privileged in the courts of common pleas and exchequer, as being an officer or fuitor of the court, an habeas corpus ad fubjiciendum might alfo have been awarded from thence ^y : and, if the caufe of imprifonment were palpably illegal, they might have difcharged him ^z ; but, if he were committed for any criminal mater, they could only have remanded him, or taken bail for his

{FS}
^s St. Trials. viii. 142.
^t The pluries habeas corpus directed to Berwick in 43 Eliz. (cited 4 Burr. 836.) was tefte'd die Tovis prox' poft quinden' fancts Martini. It appears, by referring to the dominical letter of that year, that this quondena (Nov. 25.) happened that year on a faturday. The thurfday after wa therefore the 30^th of November, two days after the expiration of the term.
^u Cro. Jac. 543.
^w 4 Burr. 856.
^x Ibid. 460. 542. 606.
^y 2 Inft. 55. 4 Inft. 293. 2 Hal. P. C. 144. 2 Ventr. 22.
^z Vaugh. 155.
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appearance in the court of king's bench ^a ; which occafioned the common pleas to difcountenance fuch applications. It hath alfo been faid, and by very refpectable authorities ^b, that the like habeas corpus may iffue out of the court of chancery in vacation : but, upon the famous application to lord Nottingham by Jenks, notwithftanding the moft diligent fearches, no precedent could be found where the chancellor had iffued fuch a writ in vacation ^c_, and therefore his lordfhip refufed it.

IN the court of king's bench it was, and is ftill, neceffary to apply for it by motion to the court ^b, as in the cafe of all other prerogative writs (certiorari, prohibition, mandamus, & c) which do not iffue as of mere courfe, without fhewing fome probable caufe why the extraordinary power of the crown is called in to the party's affiftance. For, as was argued by lord chief juftice Vaughan ^e, “ it is granted on motion, becaufe it cannot be had of courfe ; and there is therefore no neceffity to grant it : for the court ought to be fatisfied that the party hath a probable caufe to be delivered.” And this feems the more reafonable, becuafe (when once granted) the perfon to whom it is directed can return no fatisfactory excufe for not bringing up the body of the prifoner ^f. So that, if it iffued of mere courfe, without fhewing to the court or judge fome reafonable ground for awarding it, a traitor or felon under fentence of death, a foldier or mariner in the king's fervice, a wife, a child, a relation, or a domeftic, confined for infanity or other prudential reafons, might obtain a temporary enlargement by fuing out an habeas corpus, though fure to be remanded as foon as brought up to the court. And therefore fir Edward Coke, when chief juftice, did not fcruple in 13 Jac. I. to deny a habeas corpus to one confined by the court of admiralty for piracy ; there appearing, upon his own fhewing, fufficient grounds to confine him ^g. On the other hand, if a

{FS}
^a Carter. 221. 2 Jon. 13.
^b 4 Inft. 182. 2 Hal. P. C. 147.
^c Lord Nott. MSS Rep. July 1676.
^d 2 Mod. 306. 1 Lev. 1.
^e Bufhell's cafe. 2 Jon. 13.
^f Cro. Jac. 543.
^g 3 Bulftr. 27.
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probable
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probable ground be fhewn, that the party is imprifoned without juft caufe ^h, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “ may not be denied, but ought to be granted to every man that is committed, or detained in prifon, or otherwife reftrained, though it be by the command of the king, the privy council, or any other ⁱ. ”

IN a former part of thefe commentaries ^k we expatiated at large on the perfonal liberty of the fubject. It was fhewn to be a natural inherent right, which could not be furrendered or forfeited unlefs by the commiffion of fome great and atrocious crime, nor ought to be abridged in any cafe without the fpecial permiffion of law. A doctrine co-eval with the firft rudiments of the Englifh conftitution ; and handed down to us from our Saxon anceftors, notwithftanding all their ftruggles with the Danes, and the violence of the Norman conqueft : afferted afterwards and confirmed by the conqueror himfelf and his defcendants : and though fometimes a little impaired by the ferocity of the times, and the occafional defpotifm of jealous or ufurping princes, yet eftablifhed on the firmeft bafis by the provifions of magna carta, and a long fucceffion of ftatutes enacted under Edward III. To affert an abfolute exemption from imprifonment in all cafes, is inconfiftent with every idea of law and political fociety ; and in the end would deftroy all civil liberty, by rendering it's protection impoffible : but the glory of the Englifh law confift in clearly defining the times, the caufes, and the extent, when, wherefore, and to what degree, the imprifonment of the fubject may be lawful. This induces an abfolute neceffity of expreffing upon every commitment the reafon for which it is made ; that the court upon an habeas corpus may examine into it's validity ; and according to the circumftances of the cafe may difcharge, admit to bail, or remand the prifoner.

{FS}
^h 2 Inft. 615.
ⁱ Com. journ. 1 Apr. 1628.
^k Book I. ch. 1.
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AND yet, carly in the reign of Charles I, the court of king's bench, relying on fome arbitrary precedent (and thofe perhaps mifunderftood) determined ^l that they could not upon an habeas corpus either bail or deliver a prifoner, though committed without any caufe affigned, in cafe he was committed by the fpecial command of the king, or by the lords of the privy council. This drew on a parliamentary enquiry, and produced the petition of right, 3 Car. I. which recites this illegal judgment, and enacts that no freeman hereafter fhall be fo imprifoned or detained. But when, in the following year, Mr Selden and others were committed by the lords of the council, in purfuance of his majefty's fpecial command, under a general charge of “ notable contempts and ftirring up fedition againft the king and government,” the judges delayed for two terms (including alfo the long vacation) to deliver an opinion how far fuch a charge was bailable. And, when at length they agreed that it was, they however annexed a condition of finding fureties for the good behaviour, which ftill protracted their imprifonment ; the chief juftice, fir Nicholas Hyde, at the fame time declaring ^m, that “ if they were again remanded for that caufe, perhaps the court would not afterwards grant a habeas corpus, being already made acquainted with the caufe of the imprifonment.” But this was heard with indignation and aftonifhment by every lawyer prefent ; according to Mr Selden's own account of the matter, whofe refentment was not cooled at the diftance of four and twenty years ⁿ.

THESE pitiful evafions gave rife to the ftatute 16 Car. I. c. 10. §. 8. whereby it was enacted, that if any perfon be committed by the king himfelf in perfon, or by his privy council, or by any

{FS}
^l State Tr. Vii. 136.
^m Ibid. 240.
ⁿ “ Efiam mdicum tone primaries, nifi illud faceremus, referipii illius forenfis, qui libertates perfonalis omnimodae vindex legitimus eft fere flous, ufum omnimdum palam pronuntia vit (fui femper fimilis) nobis perpetuo in pofterum denegandum. Quod, ul odiofiffimum juris prodigium, fcientioribus bic univerfis cenfi tum.” (Vindic. Mar. clauf. Edit. A.D.1653.)
of
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of the members thereof, he fhall have granted unto him, without any delay upon any pretence whatfoever, a writ of habeas corpus, upon demand or motion made to the court of king's bench or common pleas ; who fhall thereupon, within three court days after the return is made, examine and determine the legality of fuch commitment, and do what to juftice fhall appertain, in delivering, bailing, or remanding fuch prifoner, Yet ftill in the cafe of Jenks, before alluded to ^o, who in 1676 was committed by the king in council for a turbulent fpeech at Guildhall ^p, new fhifts and devices were made ufe of to prevent his enlargement by law ; the chief juftice (as well as the chancellor) declining to award a writ of habeas corpus ad fubjiciendum in vacation, though at laft he thought proper to award the ufual writs ad deliberandum, & c, whereby the prifoner was difcharged at the Old Bailey. Other abufes had alfo crept into daily practice, which had in fome meafure defeated the benefit of this great conftitutional remedy. The party imprifoning was at liberty to delay his obedience to the firft writ, and might wait till a fecond and a third, called an alias and a pluries, were iffued, before he produced the party : and many other vexatious fhifts were practiced to detain ftate-prifoners in cuftody. But whoever will attentively confider the Englifh hiftory may obferve, that the flagrant abufe of any power, by the crown or it's minifter, has always been productive of a ftruggle ; which either difcovers the exercife of that power to be contrary to law, or (if legal) reftrains it for the future. This was the cafe in the prefent inftance. The oppreffion of an obfcure individual gave birth to the famous habeas corpus act, 31 Car. II. c. 2. which is frequently confidered as another magna carta ^q of the kingdom ; and by confequence has alfo in fubfequent times reduced the method of proceeding on thefe writs (though not within the reach of that ftatute, but iffuing merely at the common law) to the true ftandard of law and liberty.

{FS}
^o pag. 132.
^p State Trials. Vii. 471.
^q See book I. ch. 1.
{FE}

1. THE
   

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`THE ftatute itfelf enacts, 1. That the writ fhall be returned and the prifoner brought up within a limited time according to the diftance, not exceeding in any cafe twenty days. 2. That fuch writs fhall be endorfed as granted in purfuance of this act, and figned by the perfon awarding them ^r. 3. That on complaint and requeft in writing by or on behalf of any perfon committed and charged with any crime (unlefs committed for treafon or felony expreffed in the warrant, or for fufpicion of the fame, or as acceffory thereto before the fact, or convicted or charged in execution by legal procefs) the lord chancellor or any of the twelve judges, in vacation, upon viewing a copy of the warrant or affidavit that a copy is denied, fhall (unlefs the party has neglected for two terms to apply to any court for his enlargement) award a habeas corpus for fuch prifoner, returnable immediately before himfelf or any other of the judges ; and upon the return made fhall difcharge the party, if bailable, upon giving fecurity to appear and anfwer to the accufation in the proper court of judicature . 4. That officers and keepers neglecting to make due returns, or not delivering to the prifoner of his agent within fix hours after demand a copy of the warrant of commitment, or fhifting the cuftody of a prifoner from one to another, without fufficient reafon or authority (fpecified in the act) fhall for the firft offence forfeit 100 l. and for the fecond offence 200 l. to the party grieved, and be difabled to hold his office. 5. That no perfon, once delivered by habeas corpus, fhall be recommitted for the fame offence on penalty of 500 l. 6. That every perfon committed for treafon or felony fhall, if he requires it the firft week of the next term or the firft day of the next feffion of oyer and terminer, be indicted in that term or feffion, or elfe admitted to bail ; unlefs the king's witneffes cannot be produced at that time : and if acquitted, or if not indicted and tried in the fecond term or feffio, he fhall be difcharged from his imprifonment for fuch imputed offence : but that no perfon, after the affifes fhall be

{FS}
^r Thefe two claufes feem to be tranfpofed, and fhould properly be placed after the following provifions.
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opened for the county in which he is detained, fhall be removed by habeas corpus, till after the affifes are ended ; but fhall be left to the juftice of the judges of affife. 7. That any fuch prifoner may move for and obtain his habeas corpus, as well out of the chancery or exchequer, as out of the king's bench or common pleas ; and the lord chancellor or judges denying the fame, on fight of the warrant or oath that the fame is refufed, forfeit feverally to the party grieved the fum of 500 l. 8. That this writ of habeas corpus fhall run into the counties palatine, cinque ports, and other privileged places, and the iflands of Jerfey and Guernfey. 9. That no inhabitant of England (except perfons contracting, or convicts praying, to be tranfported ; or having committed fome capital offence in the place to which they are fent) fhall be fent prifoner to Scotland, Ireland, Jerfey, Guernfey, or any places beyond the feas, within or without the king's dominions : on pain that the party committing, his advifors, aiders, and affiftants fhall forfeit to the party grieved a fum not lefs than 500 l. to be recovered with treble cofts ; fhall be be difabled to bear any office of truft or profit ; fhall incur the penalties of praemunire ; and fhall be incapable of the king's pardon.

THIS is the fubftance of that great and important ftatute : which extends (we may obferve) only to the cafe of commitments for fuch criminal charge, as can produce no inconvenience to public juftice by a temporary enlargement of the prifoner : all other cafes of unjuft imprifonment 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 antient precedents ^s and the fpirit of the act of parliament, that the writ fhould be immediately obeyed, without waiting for any alias or pluries ; otherwife an attachment will iffue. By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjuft and illegal confinement. A remedy the more neceffary, becaufe the oppreffion does not always arife from the ill-nature, but fometimes from the mere inattention, of govern-

{FS}
^s 4 Burr. 856.
{FE}
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ment. For it frequently happens in foreign countries, (and has happened in England during temporary fufpenfions ^t of the ftatute) that perfons apprehended upon fufpicion have fuffered a long imprifonment, merely becaufe they were forgotten.

THE fatisfactory remedy for this injury of falfe imprifonment, is by an action of trefpafs, vi et armis, ufually called an action of falfe imprifonment ; which is generally, and almoft unavoidably, accompanied with a charge of affault and battery alfo : and therein the party fhall recover damages for the injury he has received ; and alfo 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.

III. WITH regard to the third abfolute right of individuals, or that of private property, though the enjoyment of it, when acquired, is ftrictly a perfonal right ; yet as it's nature and original, and the means of it's acquifition or lofs, fell more directly under our fecond general divifion, of the rights of things ; and as, of courfe, the wrongs that affect thefe rights muft be referred to the correfponding divifion in the prefent book of our commentaries ; I conceive it will be more commodious and eafy to confider together, rather than in a feparate view, the injuries that may be offered to the enjoyment, as well as to the rights, of property. And therefore I fhall here conclude the head of injuries affecting the abfolute rights of individuals.

WE are next to contemplate thofe which affect their relative rights ; or fuch as are incident to perfons confidered as members of fociety, and connected to each other by various ties and relations : and, in particular, fuch injuries as may be done to perfons under the four following relations ; hufband and wife, parent and child, guardian and ward, mafter and fervant.

{FS}
^t See Vol. I. pag. 136.
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I. INJURIES that may be offered to a perfon, confidered as a bufband, are principally three : abduction, or taking away a man's wife ; adultery, or criminal converfation with her ; and beating or otherwife abufing her. 1. As to the firft fort, abduction or taking her away, this may either be by fraud and perfuafion, or open violence : though the law in both cafes fuppofes force and conftraint, the wife having no power to confent ; and therefore gives a remedy by writ of ravifhment, or action of trefpafs vi et armis, de uxore rapta et abducta ^u. This action lay at the common law ; and thereby the hufband fhall recover, not the poffeffion ^w of his wife, but damages for taking her away : and by ftatute Weftm. 1. 3 Edw. I. c. 13. the offender fhall alfo be imprifoned two years, and be fined at the pleafure of the king. Both the king and the hufband may therefore have this action ^x : and the hufband is alfo intitled to recover damages in an action on the cafe againft fuch as perfuade and intice the wife to live feparate from him without a fufficient caufe ^y. The old law was fo ftrict in this point, that, if one's wife miffed her way upon the road, it was not lawful for another man to take her into his houfe, unlefs fhe was benighted and in danger of being loft or drowned ^z : but a ftranger might carry her behind him on horfeback to market, to a juftice of the peace for a warrant againft her hufband, or to the fpiritual court to fue for a divorce ^a. 2. Adultery, or criminal converfation with a man's wife, though it is, as a public crime, left by our laws to the coercion of the fpiritual courts ; yet, confidered as a civil injury, (and furely there can be no greater) the law gives a fatisfaction to the hufband for it by an action of trefpafs vi et armis againft the adulterer, wherein the damages recovered are ufually very large and exemplary. But thefe are properly increafed or diminifhed by circumftances ^b ; as the rank and fortune of the plaintiff and defendant ; the rela-

{FS}
^u F. N. B. 89.
^w 2 Inft. 434.
^x Ibid.
^y Law of nifi prius. 74.
^z Bro. Abr. t. trefpafs. 213.
^a Ibid. 207. 440.
^b Law of nifi prius. 26.
{FE}
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tion or connection between them ; the feduction or otherwife of the wife, founded on her previous behaviour and character ; and the hufband's obligation by fettlement or otherwife to provide for thofe children, which he cannot but fufpect to be fpurious. 3. The third injury is that of beating a man's wife or otherwife ill ufing her ; for which, if it be a common affault, battery, or imprifonment, the law gives the ufual remedy to recover damages, by action of trefpafs vi et armis, which muft be brought in the names of the hufband and wife jointly : but if the beating or other maltreatment be very enormous, fo that thereby the hufband is deprived for any time of the company and affiftance of his wife, the law then gives him a feparate remedy by an action upon the cafe for this ill-ufage, per quod confortium amifit, in which he fhall recover a fatisfaction in damages ^c.

II. INJURIES that may be offered to a perfon confidered in the relation of a parent were likewife of two kinds ; 1. Abduction, or taking his children away ; and 2. Marrying his fon and heir without the father's confent, whereby during the continuance of the military tenures he loft the value of his marriage. But this laft injury is now ceafed, together with the right upon which it was grounded : for, the father being no longer entitled to the value of the marriage, the marrying his heir does him no fort of injury, for which a civil action will lie. As to the other, of abduction or taking away the children from the father, that is alfo a matter of doubt whether it be a civil injury, or no ; for, before the abolition of the tenure in chivalry, it was equally a doubt whether an action would lie for taking and carrying away any other child befides the heir : fome holding that it would not, upon the fuppofition that the only ground or caufe of action was lofing the value of the heir's marriage ; and others holding that an action would lie for taking away any of the children, for that the parent hath an intereft in them all, to provide for their education ^d. If therefore before the abolition of thefe tenures it was an injury to the father to take away the reft of his children, as

{FS}
^c Cro. Jac. 501. 538.
^d Cro. Eliz. 770.
{FE}
well
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well as his heir, (as I am inclined to think it was) it ftill remains an injury, and is remediable by a writ of ravifhment, or, action of trefpafs vi et armis, de filio, vel filia, rapto vel abducto ^e ; in the fame manner as the hufband may have it, on account of the abduction of his wife.

III. OF a fimilar nature to the laft is the relation of guardian and ward ; and the like actions mutatis mutandis, as are given to fathers, the guardian alfo has for recovery of damages, when his ward is ftolen or ravifhed away from him ^f. And though guardianfhip in chivalry is now totally abolifhed, which was the only beneficial kind of guardianfhip to the guardian, yet the guardian in focage was always ^g and is ftill intitled to an action of ravifhment, if his ward or pupil be taken from him : but then he muft account to his pupil for the damages which he fo recovers ^h. And, as guardian in focage was alfo intitled at common law to a writ of right of ward, de cuftodia terrae et haercdis, in order to recover the poffeffion and cuftody of the infant ⁱ, fo I apprehend that he is ftill intitled to fue out this antiquated writ. But a more fpeedy and fummary method of redreffing all complaints relative to wards and guardians hath of late obtained, by an application to the court of chancery ; which is the fupreme guardian, and has the fuperintendent jurifdiction, of all the infants in the kingdom. And it is expreffly provided by ftatute 12 Car. II. c. 24. that teftamentary guardians may maintain an action of ravifhment or trefpafs, for recovery of any of their wards, and alfo for damages to be applied to the ufe and benefit of the infants ^k.

IV. To the relation between mafter and fervant, and the rights accruing therefrom, there are two fpecies of injuries incident. The one is, retaining a man's hired fervant before his time is expired ; the other, beating or confining him in fuch a manner

{FS}
^e F. N. B. 90.
^f Ibid. 139.
^g Ibid.
^h Hale on F. N. B. 139.
ⁱ F. N. B. Ibid.
^k 2 P. W^ms. 108.
{FE}
that
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Ch. 8.

that he is not able to perform his work. As to the firft ; the retaining another perfon's fervant during the time he has agreed to ferve his prefent mafter ; this, as it is an ungentlemanlike, fo it is alfo an illegal act. For every mafter has by his contract purchafed for a valuable confideration the fervice of his domeftics for a limited time : the inveigling or hiring his fervant, which induces a breach of this contract, is therefore an injury to the mafter ; and for that injury the law has given him a remedy by a fpecial action on the cafe : and he may alfo have an action againft the fervant for the non-performance of his agreement ^l. But, if the new mafter were not apprized of the former contract, no action lies againft him ^m, unlefs he rufufe to reftore the fervant upon demand. The other point of injury, is that of beating, confining, or difabling a man's fervant, which depends upon the fame principle as the laft ; viz. the property which the mafter has by his contract acquired in the labour of the fervant. In this cafe, befides the remedy of an action of battery or imprifonment, which the fervant himfelf as an individual may have againft the aggreffor, the mafter alfo, as a recompence for his immediate lofs, may maintain an action of trefpafs, vi et armis ; in which he muft allege and prove the fpecial damage he has fuftained by the beating of his fevant, per quod fervitium amifit ⁿ : and then the jury will make him a proportionable pecuniary fatisfaction. A fimilar practice to which, we find alfo to have obtianed among the Athenians ; where mafters were entitled to an action againft fuch as beat or ill treated their fervants ^o.

WE may obferve that, in thefe relative injuries, notice is only taken of the wrong done to the fuperior of the parties related, by the breach and diffolution of either the relation itfelfs, 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 fupe-

{FS}
^l F. N. B. 167.
^m Ibid. Winch. 51.
ⁿ 9 Rep. 113. 10 Rep. 130.
^o Pott. Antiqu. B. 1. c. 26.
{FE}
rior
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BOOK III.
Ch. 8.

rior is held to have in thofe of the inferior ; and therefore the inferior can fuffer no lofs or injury. The wife cannot recover damages for beating her hufband, 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 hufband 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 confidered in the next book. And fo the fervant, whofe mafter is difabled, does not thereby lofe 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 intitled to no action, for any battery or imprifonment which fuch mafter may happen to endure.
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