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Ufolm



jrarp,




IN TME CUSTODY OF THE

'BOSTON PUBLIC LIBRARY.



SHELF N




ADAMS




COMMENTARIES



ON THE



LAWS



O F



ENGLAND,



BOOK THE THIRD.



B Y

WILLIAM BLACKSTONE, ESQ.

SOLICITOR GENERAL TO HER MAJESTY,



OXFORD,

PRINTED AT THE CLARENDON PRESS.
M. DCC. LXVIII.



CONTENTS.



BOOK III.

Of PRIVATE WRONGS.

CHAP. I.

Of the REDRESS ^PRIVATE WRONGS by the
mere al of the PARTIES. Page i.

CHAP. II.
Of REDRESS by the mere operation of LAW. 1 8.

CHAP. III.
Of COURTS in ge?^eral. 2 2.

CHAP. IV.

Of the PUBLIC COURTS of COMMON LAW
and E CLU i T Y. 30.

CHAP. V.

Of COURTS E c c L E s i A s TI c A L, MILITARY,
and MARITIME* 6 1 .

a 2 CHAP.



CONTENTS.

CHAP. VI.
Of COURTS of a SPECIAL JURISDICTION. 71

CHAP. VII.
Of the COGNIZANCE of PRIVATE WRONGS. 86.

CHAP. VIII.



Of WRO N G s, and their REMEDIES,

the RIGHTS of PERSONS. 115.

CHAP. IX.
Of INJURIES to PERSONAL PROPERTY. 144.

CHAP. X.

Of INJURIES to REAL PROPERTY, and firft of
DISPOSSESSION, or OUSTER, of the FREEHOLD. 167.

CHAP. XI.

Of DISPOSSESSION, or OUSTER, of CHATTELS
REAL. 198.

CHAP. XII.
Of TRESPASS. 208.

CHAP. XIII.

Of Nu S A N CE. 2 1 6.

CHAP.



CONTENTS.

CHAP. XIV.
Of WA s T E. 223.

CHAP. XV.
Of SUBTRACTION. 230.

CHAP. XVI.
Of DISTURBANCE. 236.

CHAP. XVII.

Of INJURIES proceeding from, or affeEling) the
CROWN. 254.

CHAP. XVIII.

Of the PURSUIT of REMEDIES by ACTION;

) firft) of the ORIGINAL WRIT. 270.

CHAP. XIX.

Of PROCE s s. 279.



CHAP. XX.
Of PLEADING. 293,

CHAP. XXI.
Of ISSUE and DEMURRER. 314.

CHAP,



CONTENTS.

CHAP. XXII.
Of the feveral SPECIES o/" TRIAL. 325.

CHAP. XXIII.
Of the TRIAL by JURY. 349.

CHAP. XXIV.
Of JUDGMENT, and it's INCIDENTS. 386.

CHAP. XXV.
Of PROCEEDINGS, in the nature of APPEALS. 402.

CHAP. XXVI.
Of EXECUTION. 412.

CHAP. XXVII.
Of PROCEEDINGS in the COURTS of EQUITY. 426.



A P P E N-



CONTENTS.



APPENDIX.



N. I. Proceedings on a Writ of R i G H T Patent. Page i,

. i. Writ of RIGHT -patent in the COURT BARON. ibid.

. 2. Writ of TOLT, to remove it into the COUNTY COURT, ibid.
. 3. Writ of PON E, to remove it into the Court of COMMON

PLEAS. ii.

. 4. Writ of RIGHT, quia Dominus remifit Curiam. ibid.

. 5. 'The Record, with award of BatteL iii.

. 6. Trial by the grand Aflife. v.

N*. II . Proceedings on an Aftion of Trefpqfs in EJECTMENT,

by Original, in the King's Bench. viL

. i. The Original Writ. ibid.

. 2. Copy of the Declaration againji the cafual Ejeftor; who

gives Notice thereupon to the Tenant in Pojjejjwn. ibid,

. 3. The Rule of Court. ix.

. 4. The Record. ibid.

N. III. Proceedings on an Aflion of DEBT, in the Court of
common Pleas ; removed into the King's Bench by Writ
of ERROR. xiii.

. i. Original. ibid.

. 2. Procefs. ibid.
. 3. Bill of Middlefex, and Latitat thereupon, in the Court

of King's Bench. xviii.

. 4. Writ of Quo minus in the Exchequer. xix.

. 5. Special Bail; on the Arrefl of the Defendant, purfuant to

the Teftatum Capias, in page xiv. ibid.

. 6. The Record, as removed by Writ of ERROR. xxi.

. 7. Procefs of Execution. xxvi.



COMMENTARIES

ON THE

LAWS OF ENGLAND,

BOOK THE THIRD,

OF PRIVATE WRONGS;

CHAPTER THE FIRST.
OF THE REDRESS OF PRIVATE WRONGS

BY THE MERE ACT OF THE PARTIES.



T the opening of thefe commentaries 2 municipal law
was in general defined to be, " a rule of civil con-
" duct, prefcribed by the fupreme power in a ftate,
" commanding what is right, and prohibiting what
"is wrong b ." From hence therefore it followed, that the pri-
mary objects of the law are the eftablifhment of rights, and the
prohibition of wrongs. And this occafioned c the distribution of
thefe collections into -two general heads -, under the former of
which we have already confidered the rights that were defined
and eftablifhed, and under the latter are now to confider the
wrongs that are forbidden and redrefled, by the laws of England.

a Introd. . 2. contraria. Cic. I \Pbilifp.l 2, Draft./, I. e.-^.

b Sanfiio jufta, jubciis honefta, et frskitcHi c Book I. ch. I.

VOL. III. A IN




2 PRIVATE BOOK III.

I N the proiecution of the firfl of thefe enquiries, we diflin-
guillied rights into two forts : firfl, fuch as concern or are an-
nexed to the perlbns of men, and are then called jura perfona-
rutti, or the rights of perfons ; which, together with the means of
acquiring and loling them, compofed the firfl book of thefe
commentaries : and, fecondly, fuch as a man may acquire over
external objects, or things unconnected with his perfon, which
are called jura rerum, or the rights of things , and thefe, with the
means of transferring them from man to man, were the fubject of
the fecond book. I am now therefore to proceed to the confide-
deration of wrongs ; which for the moil part convey to us an idea
merely negative, as being nothing elfe but a privation of right.
For which reafon it was neceflary, that, before we entered at all
into the difcufiion of wrongs, we fhould entertain a clear and
diflinct notion of rights : the contemplation of what is jus being
neceffarily prior to what may be termed injuria, and the defini-
tion ofjas precedent to that of nefas.

WRONGS are divifible into two forts or fpecies ; private
wrongs, and public wrongs. The former are an infringement or
privation of the private or civil rights belonging to individuals,
confidered 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, confider-
ed as a community ; and are diflinguifhed by the harfher appel-
lation of crimes and mifdemefnors. To invefligate the firfl of thefe
fpecies of wrongs, with their legal remedies, will be our em-
ployment in the prefent book ; and the other fpecies will be re-
ferved till the next or concluding volume.

TH E more effectually to accomplifh the redrefs of private in-
juries, courts of juflice are inflituted in every civilized fociety,
in order to protect the weak from the infults of the flronger, by
expounding and enforcing thofe laws, by which rights are defi-
ned, and wrongs prohibited. This remedy is therefore princi-
pally






-



Ch. i. WRONGS. 3

pally to be fought by application to thefe courts of juflice ; that
is, by civil fuit or action. For which reafon our chief employ-
ment in this volume will be to confider the redrefs of private
wrongs, by fuit or aftion in courts. But as fome injuries are of
fuch a nature, that they furnifh or require a more fpeedy reme-
dy, than can be had in the ordinary forms of juflice, there is al-
lowed in thofe cafes an extrajudicial or eccentrical kind of re-
medy j of which I mall firft of all treat, before I confider the.
feveral remedies by fuit: and, to that end, mail diflribute the-.^ ^ -^ ^ u
redrefs of private wrongs into three feveral fpecies ; firft, that -.,..,; ,, ..... . v ..
which is obtained by the mere aft of the parties themfelves ; fe*-
condly, that which is effected by the mere al and operation of ;
law ; and, thirdly, that which arifes from fuit or aSlion in courts; '^
which confifts in a conjunction of the other two, the act of &j^ ^ ''^\\ V
Paai es co-operating, with the act. of law. ...... , ,. ^X^

. ,

AND, firft, of that redrefs of private injuries, which is ob-
tained by the mere act of the parties. This is of two forts -,
firft, that which arifes from the act of the injured party only ;
and, fecondly, that which arifes from the joint act of all the
parties together : both which I mall confider in their order.

O F the firft fort, or that which arifes from the fole act of the
injured party, is,

I. THE defence of one's felf, or the mutual and reciprocal
defence of fuch as ftand in the relations of hufband and wife,
parent and child, mafter and fervant. In thefe cafes, if the party
himfelf, or any of thefe his relations, be forcibly attacked in his
perfon 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 cafe, re-
fpects the paffions of the human mind ; and (when external vio-
lence is offered to a man himfelf, or thofe to whom he bears a
near connection) makes it lawful in him to do himfelf that im-

* 2 Roll. Abr. 546. i Hawk. P. C. 1 3 '

A 2 mediate




4 PRIVATE BOOK III.

mediate juftice, to which he is prompted by nature, and which
no prudential motives are ftrong enough to reftrain. It confiders
that the future procefs of law is by no means an adequate remedy
for injuries accompanied with force; fmce it is impoffible to fay,
to what wanton lengths of rapine or cruelty outrages of this fort
might be carried, unlefs it were permitted a man immediately

?lf mi*. *t !** /^v* A*/ to oppofe one violence with another. Self-defence therefore, as
JJL **/ * y * t*v it is juftly called the primary law of nature, fo it is not, neither
v*MiJ, o^*4 **jf* can it be in fact, taken away by the law of fociety. In the
i tri *- u . t * **". Englifli law particularly it is held an excufe for breaches of the



X^W^*AJ J^^ru^peace, nay even for homicide itfelf : but care muft be taken,
Stil /**' ' ** i-/fcs t ^ iat the refiftance does not exceed the bounds of mere defence
J Sul t~~ Iv&Ji***** an d prevention ; for then the defender Avould himfelf become an




J*j*kt 9 II. RECAPTION or reprifal is another fpecies of remedy by

the mere ac"l of the party injured. This happens, when any one
hath deprived another of his property in goods or chattels per-
fonal, or wrongfully detains one's wife, child, or fervant ; in
which cafe the owner of the goods, and the hufband, parent, or
mafter, may lawfully claim and retake them, wherever he hap-
pens to find themj fo it be not in a riotous manner, or attended
with a breach of the peace e . The reafon for this is obvious ;
fince it may frequently happen that the owner may have this only

, \ vy -x opportunity of doing himfelf juftice : his goods may be after-
wards conveyed away or deftroyed ; and his wife, children, or
fervants, concealed or carried out of his reach ; if he had no
fpeedier remedy than the ordinary procefs of law. If therefore
he can fo contrive it as to gain pofTeffion of his property again,
without force or terror, the law favours and will juftify his pro-
ceeding. But, as the public peace is a fuperior confideration to
any one man's private property; and as, if individuals were once
allowed to ufe private force as a remedy for private injuries, all
focial juftice muft ceafe, the ftrong would give law to the weak,
and every man would revert to a ftate of nature; for thefe reafons

* slnft. 134. Hal, Anal. $.46.

it



Ch, r. WRONGS, 5

it is provided, that this natural right of recaption mall never be
exerted, where fuch exertion muft occafion ftrife and bodily con-
tention, or endanger the peace of fociety. If, for inftance, my
horfe is taken away, and I find him in a common, a fair, or a
public inn, I may lawfully feife him to my own ufe : but I can-
not juftify breaking open a private ftable, or entering on the
grounds of a third perfon, to take him, except he be felonioufly
ftolen ' -, but muft have recourfe to an action at law.

III. A s recaption is a remedy given to the party himfelf, for
an injury to his ferfonal property, fo, thirdly, a remedy of the
fame kind for injuries to real property is by entry on lands and
tenements, when another perfon without any right has taken
polTeflion thereof. This depends in fome meafure on like reafons
with the former -, and, like that too, muft be peaceable and
without force. There is fome nicety required to define and dif-
tinguifh the cafes, in which fuch entry is lawful or otherwife :
it will therefore be more fully confidered in a fubfequent chap-
ter , being only mentioned in this place for the fake of regularir
ty and order.

IV. A FOURTH fpecies of remedy by the mere act of the
party injured, is the abatement, or removal, of nufances. What
nufances are, and their feveral fpecies, we mall find a more pro-
per place to enquire under fome of the fubfequent divifions. At
prefent I fhall only obferve, that whatfoever unlawfully annoys or
doth damage to another is a nufance ; and fuch nufance may be
abated, that is, taken away or removed, by the party aggrieved
thereby, fo as he commits no liot in the dbing of it E . If a houfc
or wall is erected fo near to mine that it flops my antient lights,
which is a private nufance, I may enter my neighbour's land,
and peaceably pull it down h . Or if a new gate be erected acrofs
the public highway, which is a common nufance, any of the king's
fubjects paffing that way may cut it down, and deftroy it j . And

f 2 Roll. Rep. 55, 56. 208. 2 Roll. Abr. * Salk. 459.
565, 566. i Cro, Car. 184,

* 5 Rep. ioi. 9 Rep. 55^




6 PRIVATE BOOK III.

the reaibn why the law allows this private and fummary method
of doing one's felf juftice, is becaufe injuries of this kind, which
obftrucl: or annoy fuch things as arc of daily convenience and
ufe, require an immediate remedy; and cannot wait for the flow
progrefs of the ordinary forms of juftice.

*ffcJUvi* ^ ' ^ FIFTH ca f i n which the law allows a man to be his

"7 / own avenger, or to minifter redrefs to himfelf, is that of dljlrein-

ing cattle or goods for nonpayment of rent, or other duties ; or,
diftreining another's cattle damagc-fea /ant, that is, doing damage,
or trefpafling, upon his land. The former intended for the be-
nefit of landlords, to prevent tenants from fecreting or withdraw-
ing their effects to his prejudice ; the latter arifing from the ne-
cefiity of the thing itfelf, as it might otherwife be impofiible at
a future time to afcertain, whofe cattle they were that committed
the trefpafs or damage.

A s the law of diftrefles is a point of great ufe and confequence,
I mall confider it with fome minutenefs, by enquiring, firft,
for what injuries a diftrefs may be taken ; fecondly, what things
may be diftreined ; and, thirdly, the manner of taking, difpo-

" ' * n re

fing of, and avoiding diftrefles.

i. AND, firft, it is neceflary to premife, that a diftrefs \ dip.
trittio, is the taking of a perfonal chattel out of the pofleflion of
the wrongdoer into the cuftody of the party injured, to procure
a fatisfadtion for the wrong committed, i. The moft ufual in-
jury, for which a diftrefs may be taken is that of nonpayment of
rent. It was obferved in a former volume k that diftrefles were
incident by the common law to every rent-fervice, and by parti-
cular refervation to rent-charges alfo; but not to rent-feck, till the
ftatute 4Geo. II. c. 28. extended the fame remedy to all rents
alike, and thereby in effect abolifhed all material diftin&ion be-
tween them. So that now we may lay it down as an univerfal

1 The thing itfelf taken by this procefs, books very frequently called a diftrefs.
as well as the piocefs itfelf, is in our law- k Book II. ch. 3.

principle,



Ch. i. WRONGS. 7

principle, that a diftrefs may be taken for any kind of rent in ar-
rear ; the detaining whereof beyond the day of payment is an
injury to him that is entitled to receive it. 2. For neglefting to
do fuit to the lord's court ', or other certain perfonal fervice m ,
the lord may diftrein, of common right. 3. For amercements
in a court-leet a diftrefs may be had of common right, but not
for amercements in a court-baron, without a fpecial prefcription
to warrant it ". 4. Another injury, for which diftreftes may be
taken, is where a man finds beafls of a ftranger wandering in his
grounds, damage-feafant ; that is, doing him hurt or damage,
by treading down his grafs, or the like; in which cafe the owner
of the foil may diftrein them, till fatisfa<5lion be made him for
the injury he has thereby fuftained. 5. Laftly, for feveral duties
and penalties innidted by fpecial adts of parliament, (as for aftefT-
ments made by commiffioners of fewers , or for the relief of the
poor p ) remedy by diftrefs and fale is given ; for the particulars
of which we muft have recourfe to the ftatutes themfelves : re-
marking only, that fuch diflreffes q are partly analogous to the
antient diftrefs at common law, as being repleviable and the
like ; but more refembling the common law procefs of execution, '
by feinng and felling the goods of the debtor under a writ of
jieri facias, of which hereafter.

2. SEC o N D LY ; as to the things which may be diftreined,
or taken in diftrefs, we may lay it down as a general rule, that
all chattels perfonal are liable to be diftreined, unlefs particularly
protected or exempted. Inftead therefore of mentioning what
things are diftreinable, it will be eafier to recount thofe which
are not fo, with the reafon of their particular exemptions r . And,
i. As every thing which is diftreined is prefumed to be the pro-
perty of the wrongdoer, it will follow that fuch things, wherein
no man can have an abfolute and valuable property (as dogs, cats,

1 Bro. Atr. tit. diftreft. 15. P Stat. 43 Eliz. C. 2.

111 Co. Litt. 46. t 4 Burr. 589.

- Brownl. 36. Co. Litt. 47.

Stat. 7 Ann. c. 10,

rabbets,






8 PRIVATE BOOK III.

rabbets, and all animals ferae naturae*} cannot be diftreined.
Yet if deer (which we, ferae naturae] are kept in a private in-
clofure for the purpofe of fale or profit, this fo far changes their
nature by reducing them to a kind of ftock or merchandize,
that they may be diftreined for rent s . 2. Whatever is in the
.perfonal ufe or occupation of any man, is for the time privi-
leged and protected from any diftrefs j as an ax with which a
man is cutting wood, or a horfe while a man is riding him.
But horfes, drawing a cart, may (cart and all) be diilreined
for rent-arrerej and alfo if a horfe, though a man be riding
him, be taken damage-feafant , or trefpafiing in another's grounds,
the horfe notwithstanding his rider may be diftreined and led
away to the pound'. 3. Valuable things in the way of trade
lhall not be liable to diftrefs. As a horfe {landing In a fmith's
Ihop to be fhoed, or in a common inn ; or cloth at a taylor's
houfe ; or corn fent to a mill, or a market. For all thefe are pro-
tected and privileged for the benefit of trade ; and are fuppofed
in common prefumption not to belong to the owner of the houfe,
but to his cuftomers. But, generally fpeaking, whatever goods
and chattels the landlord finds upon the premifes, whether they
in fact belong to the tenant or a ftranger, are diftreinable by him
for rent : for otherwife a door would be opened to infinite frauds
upon the landlord ; and the ftranger has his remedy over by ac-
tion on the cafe againft the tenant, if by the tenant's default the
chattels are diftreined, fo that he cannot render them when called
upon. With regard to a ftranger's beafts which are found on the
tenant's land, the following diftindlions are however taken. If
they are put in by confent of the owner of the beafts, they are
diftreinable immediately afterwards for rent-arrere by the land-
lord v . So alfo if the ftranger's cattle break the fences, and com-
mit a trefpafs by coming on the land, they are diftreinable im-
mediately by the leffor for his tenant's rent, as a punifhment to
the owner of the beafts for the wrong committed through his
negligence ". But if the lands were not fufficiently fenced fo as

5 Davis v. Powel. C. B. H:L I I-G. II. v Cro. Eliz. 549.

* I Sid. 440. u Co. Litt. 47.

to



Ch. i. WRONGS. 9

to keep out cattle, the landlord cannot diftrein them, till they
have been levant and couchant flevantcs et ciibantes) on the land ;
that is, have been long enough there to have laid down and rofe
up to feed ; which in general is held to be one night at lead :
and then the law prefumes, that the owner may have notice
whither his cattle have ftrayed, and it is his own negligence not
to have taken them away. Yet, if the lefTor or his tenant were
bound to repair the fences and did not, and thereby the cattle
cfcaped into their grounds without the negligence or default of the
owner ; in this cafe, though the cattle may have been levant and
conchant, yet they are not diftreinable for rent, till actual notice
is given to the owner that they are there, and he neglects to re-
move them w : for the law will not fuffer the landlord to take
advantage of his own or his tenant's wrong. 4. There are alfo
other things privileged by the antient common law ; as a man's
tools and utenfils of his trade, the ax of a carpenter, the books
of a fcholar, and the like : which are faid to be privileged for
the fake of the public, becaufe the taking them away would
difable the owner from ferving the commonwealth in his ftation.
So, beafts of the plough, averia carucae, and flieep, are privileged
from diftrefles at common law x ; while goods or other fort of
beafts, which Bradlon calls catalla otiofa, may be diftreined. But,
as beafts of the plough may be taken in execution for debt, fo
they may be for diftreffes by ftatute, which partake of the nature
of executions y . And perhaps the true reafon, why thefe and the
tools of a man's trade were privileged at the common law, was
becaufe the diftrefs was then merely intended to compel the pay-
ment of the rent, and not as a fatisfadtion for it's nonpayment :
and therefore, to deprive the party of the inftruments and means of
paying it, would counteract the very end of the diftrefs z . 5. No-
thing mall be diftreined for rent, which may not be rendered
again in as good plight as when it was diftreined : for which
reafon milk, fruit, and the like, cannot be diftreined ; a diftrefs

w Lutw. 1580. y 4 Burr. 589.

* Stat. 51 Hen. III. ft, 4. & dijtritlitne * Ibid. 588.
Jcaccarii.

VOL. III. B at



io PRIVATE BOOK III.

at common law being only in the nature of a pledge or fecurity,
to be reftored in the fame plight when the debt is paid. So,
antiently, {heaves or (hocks of corn could not be diftreined, be-
caufe fome damage muft needs accrue in their removal : but a
cart loaded with corn might ; as that could be fafely reftored.
But now by ftatute 2 W. oc M. c. 5. corn in (heaves or cocks,
or loofe in the ftraw, or hay in barns or ricks, or otherwife, may
be diftreined as well as other chattels. 6. Laftly, things fixed
to the freehold may not be diftreined ; as caldrons, windows,
doors, and chimneypieces : for they favour of the realty. For
this reafon alfo corn growing could not be diftreined ; till the
ftatute ii Geo. II. c. 19. empowered landlords to diftrein corn,
grafs, or other produces of the earth, and to cut and gather
them when ripe.

L E T us next confider, thirdly, how diftrefles may be taken,
difpofed of, or avoided. And, firft, I muft premife, that the law
of diftrefles is greatly altered within a few years laft paft. For-
merly they were looked upon in no other light than as a mere
pledge or fecurity, for payment of rent or other duties, or fatif-
fadtion for damage done. And fo the law ftill continues with re-
gard to diftrefles of beafts taken damage-feafant, and for other
caufes, not altered by ac~l of parliament -, over which the dif-
treinor has no other power than to retain them till fatisfsclion is
made. But diftrefles for rent-arrere being found by the legifla-
ture to be the fhorteft and moft effectual method of compelling
the payment of fuch rent, many beneficial laws for this purpofe
have been made in the prefent century ; which have much al-
tered the common law, as laid down in our antient writers.

I N pointing out therefore the methods of diftreining, I mail
in general fuppofe the diftrefs to be made for rent ; and remark,
where neceflary, the differences between fuch diftrefs, and one
taken for other caufes,

IN



Ch. i. WRONGS. n

I N the firft place then, all diftrefles muft be made by day, un-
lefs in the cafe of damage-feafant ; an exception being there al-
lowed, left the beads mould efcape before they are taken'. And,
when a perfon intends to make a diftrefs, he muft, by himfelf
or his bailiff, enter on the demifed premifes ; formerly during
the continuance of the leafe, but now b he may diftrein within
fix months after the determination of fuch leafe whereon rent
is due. If the leflbr does not find fufficient diftrefs on the pre-
mifes, formerly he could refort no where elfe ; and therefore te-
nants, who were knavifh, made a practice to convey away their
goods and ftock fraudulently from the houfe or lands demifed, in
order to cheat their landlords. But now c the landlord may dif-
trein any goods of his tenant, carried off the premifes clandef-
tinely, wherever he finds them within thirty days after, unlefs



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