A SYSTEM OF THE LAWS OF THE STATE OF CONNECTICUT. BOOK FOURTH. Of private wrongs, and the modes of redrefs. CHAPTER FIRST. OF REDRESS OF PRIVATE WRONGS, BY OPERATION OF LAW AND ACT OF THE PARTIES. IN the foregoing Books we have treated at large of the feveral rights of individuals. This has laid a proper foundation for the difcuffion of wrongs or injuries: which are defined to be a violation or deprivation of fuch rights. It is however unneceffàry to go into a minute detail of the feveral injuries by which the rights of mankind are affected; becaufe in treating of rights, it became neceffary in fome measure to point out the injuries: and in delineating the modes of redreffing wrongs, we fhall have occafion to enter into as minute an explication of them, as can be neceffary. It would be impoffible to make a particular defcription of every wrong that a perfon might sustain; we must therefore establish general principles, and then detail the remedies for injuries that come within fuch defcription. Mankind are entitled to reftitution for wrongs, not only by fait at law, but in fome cafes they may obtain it without fuit. Of this I treat in the first place, and then proceed to remedies by actions or fuits; which is the great object of legal establishments. I. The operation of law in two instances vests a person with B the the power of obtaining his right. Thefe are called retainer and remitter. Retainer, is where a perfon makes his creditor his executor, or where the creditor obtains letters of administration: the law enables the executor or adminiftrator in fuch cafes, to retain a fufficiency of the estate of the deceafed in their hands to pay their debts; because they cannot fue themselves, and must be without remedy unless they may retain: 6 but executors in their own wrong cannot retain. Remitter, is where a perfon having the true right to lands is out of poffeffion, and has the freehold caft upon him by fome fubfequent and defective title; he is then by operation of law remitted to his first and certain title, and may by virtue of it maintain poffeffion against any other perfon, notwithstanding the defect in the title by which he came last into poffeffion. This rule results from the confideration, that such perfon can have no legal remedy to confirm or acquire his former good title, and therefore he ought to be remitted to it without fuit. II. The parties, by the intervention of their own acts, may in a variety of inftances do themfelves juftice. 1. Self-defence, or felf-preservation, is properly deemed the primary law of nature. Mankind do not therefore relinquish it upon entering into a state of fociety, but referve to themfelves the power of exercising it upon all neceffary occafions. This right extends not only to one's felf, but is mutual between all perfons that stand in the relation of husband and wife, parent and child, master and fervant. If any man be forcibly attacked by another in his perfon or property, or if any of his relations within the above defcription be thus attacked, he has a right to refift, repel, and defend against fuch forcible injury, by force, and the aggreffor muft be refponfible for all the confequences. If a breach of the peace enfue, or if the aggreffor be wounded, he alone is punishable for the crime, and has no remedy for the battery. If therefore a man will begin the affray, tho he afterwards be feverely beaten, he may be profecuted, and punished for a breach of the peace, and the perfon affaulted has his action against him, and the fubfequent beating by the perfon affaulted, can only go in mitiga a Brownl, 75. b 5 Co. 30. c Co. Lit. 347. 2 Rol. Abr. 59. 1 Hawk. P. C. 131. tion 3 Black, Com. 3. tion of damages. But in these cafes it must be observed as a general rule, that the resistance muft not exceed the proper bounds of defence, by repelling the attack, and putting it out of the power of the affailant to do any further injury. For this purpose not only a breach of the peace, but homicide itself is juftifiable. If however, a perfon exceeds the bounds of defence, he then becomes the aggreffor, and can no longer juftify himself, but is aufwerable for his conduct. 2. Recaption, or reprifal, is where one perfon takes away the goods of another, or wrongfully detains his wife, children or fervant; then fuch owner, hufband, parent or master, may retake them wherever he can find them, provided it be done in a peaceable manner, without committing a riot, or breaking the peace. For if property cannot be reclaimed in a quiet manner, the law drives the party to his remedy by action, as the peace and good order of fociety is of the highest importance, and can never be maintained if the law admits of force and violence in the recaption of property; but in all fuck cafes adequate remedies are furnished by law, which renders it unneceffary to have recourse to fuch dangerous and tumultuous expedients. If a horse be taken from the owner, if he can find him in a common, fair, or public inn, he may retake him: but he has no right to break open a private stable, or enter upon the ground of a third perfon, to take him, unless he were ftolen. But in fuch cafes where the trefpaffer is a perfon of no property, and the owner is in danger of loofing his horse, or whatever property it may be, if he does not retake it, he would for the recaption, by entering another's ftable, or upon another's land, be liable to the fmalleft damages only. 3. A right of entry on lands, belongs to the proprietor in fee, fo long as his right of action continues. In England there is much abftrufe learning on this fubject; but we have no occafion to look into it, becaufe our right of entry is dependent on a fingle principle. Whoever is the proprietor of lands, and can maintain action for the recovery of the poffeffion, may make entry thereon. For as a title is acquired by the poffeffion of fifteen years, the neceffity of the English rules concerning entries, is fuper feded, and it proper to permit a man to enter on lands fo long as he has a is B 2 ■ 3 Black. Com. 4. 3 Inft. 134. right right to bring his action. All entries must be made in a peaceable quiet manner, without tumults, riots, or breaches of the peace; for if the entry be forcible, the perfon turned out of poffeffion, may regain it by virtue of the ftatute concerning forcible entry and detainer, tho he has no title to the lands. 4. The abatement or removal of nuifances, is a right of the perfon injured, without the intervention of law. A nuifance may be defined to be fomething that unlawfully annoys, or does damage to another, and may be abated, taken away or removed, by the perfon who fuftains any damage thereby, provided he does it in a peaceable manner, without committing a riot or breach of the peace. 5. Impounding of creatures, taken damage feafant, or doing daImage upon one's land, is allowed by law to the party injured. By the English law diftrefs of perfonal property for the non-payment of rent, is admitted in favour of the landlord against the tenant but here it is admitted only where creatures are found doing damage, or trefpaffing upon another's land. The mode of proceeding is pointed out by statute. All horses, cattle, fheep, fwine and other creatures, which break into a man's inclosure, may be taken and impounded. It is the duty of the felectmen of every town, to provide fufficient pounds, and on failure they incur a penalty of ten fhillings per month, half to the informer, and half to the county treasury. Eut towns may grant liberty to any parish or part of a town to keep a pound, and the felectmen fhall not be liable for their defects. Towns muft annually appoint key-keepers for pounds, whofe duty it is to receive and fecure creatures brought to the pounds—take proper care of them, and provide them food. The perfon impounding any creatures, fhall as foon as may be, give notice to the owners, if known, upon penalty of forfeiting one fhilling per head for fich creatures, during every day they continue in the pound, with the expence of fupporting them. If the owner be not known then the impounder must give notice to one of the conftables of the town, who fhall cry fuch creatures with their natural and arti-ficial marks, by pofting up the fame in the town where they are impounded, #3 Black. Com. 5. & Statutes, 72. Ibid. 194. |