« EelmineJätka »
THE LAWS OF ENGLAN:D..
BOOK THE THIRD.
Of Private rongs.
OF THE REDRESS OF PRIVATE WRONGS BY THE MERE
ACT OF THE PARTIES.
Ar the opening of these commentaries,(a) municipal law was in general defined to be, “a
rule of civil conduct, prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong."(6) From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned(c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redi essed, by the laws of England. *In the prosecution of the first of these inquiries, we distinguished
[*2 rights into two sorts: first, such as concern, or are annexed to, the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries : and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.
Wrongs are divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries : the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misde() Introd. 2.
( Book i. ch. 1.
I imagine this to be a misquotation of the following passage:—"Est enim lex nihil
meanours. To investigats the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding one.
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 those laws, by which rights are defined and wrongs prohibited. This remedy is therefore *3]
principally to be sought by application to these *courts of justice; that is,
by.ciyil suit or action. For which reason our chief employment in this book, will be to consider the redress of private wrongs by suit or action in courts. 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 in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit : 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 or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.
And first of that redress of private injuries which is obtained by the mere act of the parties
. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
of the first sort, or that which arises from the sole act of the injured party, is
I. The defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray.(d) For the law in this case respects the passions of the human mind, and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do *4]
himself that immediate justice to which he *is prompted by nature, and
which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages 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 it is not, neither
(4) 2 Roll: Abr. 546. 1 Hawk. P. C. 131.
2 It is said that, according to 1 Salk. 407, 1 Ld. Raym. 62, and Bul. N. P. 18, a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But, according to 2 Rol. Abr. 546, D. pl. 2, Owen, 151, Bac. Abr. Master and Servant. P., such an interference by the master is lawful ; and lord Hale (1 vol. 484) says, “ That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself; for they are in a mutual relation to one another.” But though, as observed by the learned commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or å repetition of it; and therefore, in a plea by a father, master, &c., founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c., if the defendant had not interfered ; and if it be merely alleged that the plaintiff
' had assaulted or beat, &c., it will be demurrable, for if the assault on the master, &c. be over, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as An indifferent person, to preserve the peace. 2 Stra. 954.--Chitty.
can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicide itself: 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.
II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or. servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them
wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace.(e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favours and will justify his proceeding. But as the public peace is a superior consideration to any man's private 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 it is provided that this natural right of recaption *shall never be exerted where such exertion must occasion strife and bodily con
[*5 tention, or endanger the peace of society. If, for instance, 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 at law.3
III. As recaption is a remedy given to the party himself for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements when another person without any right has taken possession thereof. This depends in some measure on like ( 3 Inst. 134. Hal. Anal. 8 46.
2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566. In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrong-doer, even without a previous request; but, unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands on the wrong-doer in order to recover it, (8 T. R. 78. 2 Roll. Abr. 56, 208. 2 Roll. Abr. 565, pl. 50. 2 Leonard 302. Selv. N. P. tit. Assault and Battery ;) nor can he without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr. 55, 56, 308. 2 Roll. Abr. 565, I. pl. 2. Bac. Abr. Trespass, F.-Chitty.
If the possession of one's property be held by another, the owner may take possession if he can do so without tumult and riot or breach of the peace; but he has no right to use unreasonable violence. Davis vs. Whitridge, 2 Strobh. 232.
The owner of personal property left in the possession of a third person may by his own act repossess himself of such property, though it be taken from the possession of such third person by virtue of a writ of replevin; and the plaintiff in the replevin cannot maintain trespass against him. Spencer vs. McGowen, 13 Wend. 256. One whose chattel has been wrongfully taken from him may enter upon the land of the taker for the purpose of retaking it, without subjecting himself even to nominal damages. Chambers vs. Bedell, 2 Watts & Serg. 225.-SHARSWOOD.
* With respect to land and houses also, resumption of possession by the mere act of the party is frequently allowed. Thus, if a tenant omit at the expiration of his tenancy to deliver up possession, the landlord may legally, in his absence, break open the outer door and resume possession, though some articles of furniture remain therein; and, if the landlord put his cattle on the land, and the tenant distrain them as damage-feasant, he may be sued. 1 Bing. R. 158. 7 T. R. 431, 432. 1 Price R. 53. And. 109. 6 Taunt. 202. If the landlord, in resuming possession, be guilty of a forcible entry with strong hand, or other illegal breach of the peace, he will be liable to an indictment. 7 T. R. 432. 3 T. R. 295. 6 Taunt. 202. 8 T. R. 364, 403. But the circumstance of the owner of property using too much force in regaining possession, but taking care to avoid personal injury to the party resisting, will not enable the latter to sue him. See cases in
reasons with the former; and like that, too, must be peaceable and without forco There is some nicety required to define and distinguish the cases in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.
IV. A fourth species of remedy by the mere act of the party injured is the abatement or removal of nuisances. What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it.(9) If a house or wall is erected so near to mine that it stops my antient lights, which is a private nuisance, I may enter my neighbour's land and peaceably pull it down.(h) Or if a new gate be erected across the public highway, which is a common nuisance, any of the king's sub*6]
jects passing that way may cut it down and destroy it.(i) *And the reason
why 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 (*) Rep. 101. 9 Rep. 55.
(*) Salk. 459.
(°) Cro. Car. 184. last two notes. But if any unnecessary violence to the person be used in rescuing or defending possession of real or personal property, the party guilty of it is liable to be sued. 8 T. R. 299. Id. 78. 1 Saund. 296, n. 1. So, as the law allows retaking of the possession of land, it also sanctions the due defence of the possession thereof; and therefore, though if one enter into my ground I must request him to depart before I can lay hands on him to turn him out, yet if he refuse I may then push him out, and if he enter with actual force I need not first request him to be gone, but may lay hands on him immediately. 8 T. R. 78. 1 Salk. 641. See 1 Bing. 158.--Chitty.
5 Thus, in case of a public nuisance, if a house be built across a highway, any person may pull it down; and it is said he need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate, illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. ? Salk. 458. As to private nuisances, they also may be abated; and therefore it was recently held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet and so diminish. ing the water used by the latter for his cattle, the party injured may enter on the soil of the other and abate the nuisance, and justify the trespass ; and this right of abatement is not confined merely to a house, mill, or land. 2 Smith's Rep. 9. 2 Rol. Abr. 565. 2 Leon. 202. Com. Dig. Pleader, 3 M. 42. 3 Lev. 92. So it seems that a libellous print or paper, affecting a private individual, may be destroyed, or (which is the safer course) taken and delivered to a magistrate. 5 Coke, 125, b. 2 Camp. 511. Per Best, J., in the Earl Lonsdale vs. Nelson, 2 Bar. & Cres. 311, "nuisances, by an act of commission, are committed in defiance of those whom such nuisances injure, and the injured party may dbate them without notice to the person who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is an unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it: in such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of lord Hale, and appeal to a court of justice ;" and see, further, 3 Dowl. & R. 556. And it was held in the same case, that where a person is bound to repair works connected with a port, and neglects to do so, another person cannot justify an entry to repair without averring and proving that immediate repairs were necessary, and the party's right to use the port. As to cutting trees, “if the boughs of your trees grow out into my land, I may cut them.” Per Croke, J., Rol. Rep. 394. 3 Buls. 198. Vin. Abr. Trees, E. & tit. Nuisance, W. 2, pl. 3.
The abater of a private nuisance cannot remove the materials further than necessary, or convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as, if a house be built too high, only so much of it as is too high should be pulled down. 9 Rep. 53. God. 221. 2 Stra. 686.-Cutty.
are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.
V. A fifth case in which the law allows a man to be his own avenger, (or to minister redress to himself, is that of distraining cattle or goods for the nonpayment of rent, or other duties ; or distraining another's cattle damage-feasant,
* As to distresses in general, see Gilbert on Distresses, by Hunt; Bradley on Dist.; Com. Dig. Distress; Bac. Abr. Distress; Vin. Abr. Distress ; 2 Saunders, index, Distress; Wilkinson on Replevin. As the law allows a creditor to arrest the person of his debtor as a security for his being forthcoming at the determination of the suit, so in certain cases it permits a landlord to distrain for arrears of rent, in order to compel the payment of it. It is laid down that the remedy for recovery of rent by way of distress was derived from the civil law; for anciently, in the feudal law, the neglect to attend at the lord's courts, or not doing feudal service, was a forfeiture of the estate ; but these feudal forfeitures were afterwards turned into distresses according to the pignotary method of the civil law; that is, the land let out to the tenant is hypothecated, or as a pledge in his hands, to answer the rent agreed to be paid to the landlord; and the whole profits arising from the land are liable to the lord's seizure for the payment and satisfaction of it. Gilb. Dist. 2. Gilb. Rents, 3. Bacon on Govt. 77. Vigillius, 257, 271, 326. Cromp: Int. 9. 2 New R. 224. The distress could not at common law, before the stat. 2 W. and M. c. 5, be sold, but could only be impounded and detained, in order to induce the tenant to perform the feudal service. Distresses, therefore, were at common law only allowed when the relation of landlord and tenant subsisted, and when, consequently, there remained feudal service to be performed ; and hence the necessity at the present day that the landlord distraining should, at the time of the distress, be entitled to the legal reversion; and hence the consequence that if a landlord, after rent has become due, and before payment, conveys his legal estate to another, he cannot distrain, (Gilb. Action Debt, 411. Bro. Debt, pl. 93. Vaughan, 40. Bac. Abr. Distress, A.;) and, for the same reason, it is necessary to aver in an avowry and cognizance that at the time of the distress the tenancy subsisted. The common law was altered, as far as regards tenants holding over, by the 8 Anne, c. 14, which provided that if a person retain possession of the estate after the expiration of his tenancy, the landlord, if his interest continue, may distrain within six months. Before this statute it was usual, and still may be expedient, to provide that the last half-year's rent shall be paid at a day prior to the determination of the lease, so as to enable the landlord to distrain before the removal of the tenant. Co. Litt. 47, b. If by agreement or custom the tenant has an away-going crop, and right to hold over to clear the same, the landlord may, during such excrescence of the term, distrain at common law. 1 Hen. Bla. 8. So the 11 Geo. II. c. 19, s. 8 enables a landlord to distrain for double rent if a tenant do not deliver up possession after the expiration of his own notice to quit, by which he incurs double rent so long as he holds over. When a lessor has not the legal estate or reversion, he should reserve a power to distrain, which will entitle him to do so. Co. Litt. 47, a. 5 Co. 3. But though the principal object of a distress was to compel the performance of feudal services, and, consequently, if rent be reserved on a letting merely of personal property, no distress can be taken, (5 Co. 17. 3 Wils. 27,) yet a distress may be made for rent of a ready-furnished house or lodging, because it is then considered that the rent issues out of the principal, -the real property demised. 2 New Rep. 224.
Accepting a note of hand and giving a receipt for the rent does not, till payment, preclude the landlord from distraining; and so if the landlord accept a bond, but a judgment obtained on either of such instruments would preclude the right of distress. See Bull. N. P. 182. An agreement to take interest on rent in arrear does not take away the right of distress. 2 Chit. R. 245. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had in equity. Per Comyns, B., Exch. Trin. 5 & 6 Geo. II. 1 Selw. N. P. 6 ed. 673.
To entitle a person to distrain for non-payment of money, it must be due under a demise, and for rent fixed and certain in its nature; and therefore, if a person be let into possession under an agreement for a lease which does not contain words of immediate dem-se, no distress can be made, unless from a previous payment of rent or other circumstance a tenancy from year to year can be inferred; and the only rernedy is by action for use and occupation. 2 Taunt. 148. 5 B. & A. 322. 13 East, 19. So, as lord Coke quaintly says, (Co. Litt. 96, a.,) it is a maxim in law that no distress can be taken for any services that are not put into certainty nor can be reduced to any certainty, for id certum est quod certum reddi potest
, but yet in some cases there may be a certainty in uncertainty. There fore, if a man hold land, paying so much per acre, although in the terms of the demise the number of acres be not fired, the lord may distrain, (Vin. Abr. Distress, E. Sea form of avowry, 3 Chitty on Pl. 4th edit
. 1051;) but where an estate has been let without in any way fixing the amount of rent, the only remedy is by action. Chitty.