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OF THE ENFORCEMENT OF RIGHTS, AND THE
a mere personal act.
I. THERE are two modes in which private Part IV.
Tit. I. injuries are prevented by a mere personal act; namely, defence, and stoppage in tran- of wrong by situ.
1. The defence, even by force, of oneself, or the Defence. mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant, is a preventive course which the law allows; and the breach of the peace which results is chargeable upon him who began the affray. 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 aggressor. (3 Bl. Com., quoted 3 Ste. Com. 338.)
2. Stoppage in transitu is the resumption Stoppage in by a vendor of the possession of goods which have been transmitted to, but have not yet come into the actual or constructive posses
II. Redress by the act of
act of the in.
PART IV. sion of, a purchaser who has become insol
vent. The vendor is not obliged to seize the goods on the road. Notice to the carrier is sufficient. (Sm. Merc. Law, 553-4, 559, 562; Tudor's Ca. on M. L. 549.)
II. Redress of private injuries by the mere the parties. act of the parties is of two sorts : first, that
which arises from the act of the injured party; and, secondly, that which arises from
the joint act of both or all the parties. 1. Redress by
1. Of redress by the act of the injured party, jured party. there are several modes: recaption or reprisal,
entry on lands, abatement or removal of nuisances, distress, and seizure.
(1) Recaption or reprisal is the recovery, by the act of the party deprived, of his property in goods or chattels personal, or of his wife, child, or servant. This personal reco
. very is allowable, provided it be not in a riotous manner, or attended with a breach of the peace or a violation of legal rights. If, therefore, my horse is taken away, and I find him in a common, a fair, or 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, but must have recourse to an action, (Bl. Com., quoted 3 Ste. Com. 338-9.)
(2) A remedy of the same kind, for in- Part IV.
Tit. I. juries to real property, is, by entry on lands, when another person, without any right, has (2) Entry. taken possession of them ; in which case the party entitled may make a formal but peaceable entry on the lands, declaring that he thereby takes possession. He may enter on any part in the same county, declaring it to be in the name of the whole; but if the lands are in different counties, he must make a distinct entry in each county. If, however, a person enters with a strong force or with violence, or if he forcibly detains after a peaceable entry, unless there has been three years' peaceable enjoyment under such entry, the magistrate may restore possession to the party put out. (Bl. Com., quoted 3 Ste. Com. 339-40.)
(3) Another species of remedy by the mere (3) Abate. act of the party injured, is the abatement or removal of nuisances, whether public or private. (Bl. Com., quoted 3 Ste. Com. 338; Broom Com, 224-5.)
If a man apprehends that a nuisance will be committed, he has no right to enter upon his neighbour's land to prevent it, but he may make a peaceable entry to abate and put a stop to an existing private nuisance,
Excessive exercise of a
PART IV. The occupier should, however, first be reTit. I.
quired to abate it himself, unless the nuisance causes such imminent danger to life as to render it unsafe to wait for its removal by the occupier. And a public nuisance cannot be abated by a private individual; unless it injures him in some peculiar manner, distinct from that in which the public generally are affected by it; in which case he may abate it so far as may be necessary to the enjoyment of his own rights. (Add. Torts, 99-101; Gibbon, 401; Broom Com. 224-7.)
The exercise of a limited right, when used limited right. to excess so as to produce a nuisance, may, if
necessary, be entirely stopped, until confined within its proper limits. (Add. Torts, 101.)
( (4) Another mode of redress by the mere act of the parties is by distraining. A distress is usually made either for rent in arrear, or for damage feasant, that is, for damage done. (Bl. Com., quoted 3 Ste. Com. 339.) Of distress for rent we have already spoken.
An owner or occupier of land may seize animals and chattels injuring or trespassing upon his land, and detain them until a fair compensation for the injury is tendered to him, unless they are under the personal care and the immediate control of some one.
Distress for damage feasant.
he must distrain them at the time, and be- Part IV.
Tit. I. fore they leave his land. If, however, the trespassing of cattle is owing to the fault of the owner of the land, in not fencing where he ought, and there is no default on the part of the persons in charge of the cattle, no distress can be made. (Add. Torts, 372-3;
, 3 Ste. Com. 341; Gilbert, 24.)
Tender of sufficient amends before the distress makes the distress wrongful; the remedy for which is by replevin, or action for a trespass, or for the wrongful seizure and conversion of the things. Tender of sufficient amends after distress, and before the things are impounded (that is, put into a place of security) for the purpose of the distress, makes the detainer wrongful, for which an action will lie for the detention of the goods. The demand of an exorbitant sum for a compensation does not exempt the person whose goods are seized from the necessity of tendering a proper compensation. (Add. Torts, 365, 374-5, 379; Tomlin's Law Dict.; Wharton's Law Lex.)
Persons impounding animals must feed them, and may either recover from the owner not more than double the value of the food, or, after seven days, and after three days' further public notice, may sell them, or