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CHAP. I. RIGHTS, &c.

Fourthly, Rights are temporal,

either legal or

equitable; or they are ecclesiastical or spiritual; or cog nizable only in a Prize Court.

it is a freehold or a copyhold interest. If the former, a moiety of the owner's legal interest may be seized under an elegit, but no execution at the suit of a creditor will affect the debtor's copyhold interest; though if he become bankrupt, or be discharged as an insolvent, the entire freehold as well as copyhold interest may be sold for the benefit of the creditors. So with regard to the extent and duration of interest, it may be an estate of inheritance or only for life, and either for a party's own life or for that of another, as dower, or tenancy by courtesy, &c., or it may be only for years, or strictly at will or by sufferance. So with regard to the number of owners, it may be in joint tenancy or coparcenacy or in common; and with regard to the time of enjoyment, it may be in possession, remainder, or reversion; and as to the modes by which these several interests or rights may be acquired or transferred, it may be by descent, or by purchase, as it is technically termed, which includes not only purchases, vulgarly so termed, (where some conveyance upon a sale has been executed,) but also when the estate has been obtained by any other means than by descent; as when the property is merely in possession without strict title, and which possession may enable him to sue a mere wrong-doer in trespass, (h) or even in ejectment, (2) or by special occupancy, prescription, or by alienation, whether by deeds of various kinds, or by matter of record, as by fine or recovery, or by special custom, or by devise. The different modes of acquiring the right (and the exact knowledge of which constitutes the science of conveyancing) frequently affect the remedies, and in practice are essential to be well considered before deciding in any difficulty upon any injury or remedy affecting these rights.

It is further necessary, with respect to private rights and duties, to observe, that they are temporal, or ecclesiastical, or spiritual; the former are generally cognizable only in the Common Law or Equity Courts; the latter only in the Ecclesiastical or Spiritual Courts. Thus alimony and restitution of conjugal rights, and punishment for verbal slander merely imputing fornication or other offence of a spiritual nature, and unattended with special damages, must be proceeded for in the latter Courts. Again: the former or temporal rights are either legal or equitable, and Courts of Law in general only take notice of and remedy the infraction of legal rights, and if an action is to be brought, it must be in the name of the legal

(h) Graham v. Peat, 1 East, 244; 4 Taunt. 548; 8 East, 356.

(i) 2 Saund. by Patteson & Williams,

47 (c); 7 Bingh. 346; 1 Chitty on Pleading, 218, note (e).

owner, being the party in whom the legal right or interest is vested, though he have no beneficial interest; and the person trusting or confiding in the trustee (being the cestui que trust) cannot sue in his own name, (k) still less can he sue his own trustee, (/) but recourse must be had by him to a Court of Equity.(m) Courts of Common Law will not in general notice mere equitable rights, as contradistinguished from the strict legal title and interest, so as to invest the equitable or merely beneficial claimant with the ability to adopt legal proceedings in his own name, although the equitable right may embrace the most extensive, and indeed the exclusive interest in the benefit to be derived from the contract or other subject-matter of litigation. This rule could not be disregarded without destroying the fundamental distinctions wisely constituted between Courts of Common Law and Courts of Equity, with regard to the cognizance of rights and the remedies peculiar to each jurisdiction. If the cestui que trust were permitted to sue at law in his ow name, the benefits and protections intended to result from the intervention of the trustee, clothed with the legal title, might be lost, and the advantages arising from giving the Court of Equity exclusive control over matters of trust would be defeated. Thus if a husband could proceed at law for a legacy left to the separate use of his wife, he might receive and spend the whole, and leave his wife destitute, when, if compelled to resort to a Court of Equity, terms may be imposed and maintenance secured. (1) Besides it would be impossible, consistently with the common principles of jurisprudence, to exclude the power of the trustee to sue in respect of his legal right, and it would be highly mischievous and unjust to permit the defendant to be harassed by two proceedings upon the same contract or transaction. The right of action is therefore wisely vested solely in the party having the strict legal title, in exclusion of the mere equitable claim; and if a right be vested in A. for the use of B., the latter can neither release nor sue at law for an injury. (0) And this rule, though in general established by decisions respecting actions, has a more extensive application and extends to proceedings antecedent to litigation; thus a notice to quit, or a demand, &c., should be in the name of the legal owner

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CHAP. I.

RIGHTS, &c.

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CHAP. I. RIGHTS, &c.

II. INJURIES whether PRIVATE OF PUB

LIC.

and party who must afterwards sue or prosecute, and not merely in the name of the party beneficially and equitably interested, though he may properly join, to show his concurrence in the proceeding for his benefit. However a cestui que trust in actual possession may in general sue a wrong-doer in trespass for an injury to the possession, for in that case the title would not come in question, and bare possession is sufficient against a wrong-doer. (p) Nor is the distinction between legal and equitable rights confined in its consequences to the jurisdiction or form of the remedy, it affects in various cases the right itself, at least as regards collateral incidents. Thus if a person be in possession of an estate merely under an agreement of purchase, without an actual conveyance, and have children and die, he had merely an equitable estate, and it follows that if his widow subsequently reside with his children on the estate, she does not thereby acquire a parochial settlement as if her husband had had the legal estate, because a widow can never be guardian in socage of an equitable interest, but only where a legal estate has descended on her child, although at any instant a Court of Equity would have decreed a conveyance of the legal estate to such father or child. (q) So if under colour of war the personal property of a person be illegally captured, he cannot try his right to restoration or compensation in any temporal Court, but must sue alone in the Prize Court, having jurisdiction over prize questions by special commission from the King. (r)

Injuries like rights are private or public, and as they affect the person, personal or real property, naturally follow the same arrangement as that of rights. In considering them, so as to decide on the proper remedy, it will be found in general necessary to ascertain four points: 1st. The nature of the property and right affected, and whether it was public or private, corporeal or incorporeal; 2dly. The mode of committing the injury, as whether it was a felony or only a misdemeanor, or a tort, or a breach of contract; and if a tort, whether it was committed under colour of process, and whether it was direct and immediate or only consequential, and whether it was with or without force, and if the latter, whether it was a nonfeazance, misfeazance, or malfeazance; and 3dly. Upon what occasion or

(p) 1 East, 244; 2 Saund. 47 (d).
(q) Rex v. Toddington, 1 Bar. & Ald.
560; 2 Mod. 176; Co. Lit. 87, b. note

1, by Hargreave; Vin. Ab. Guardian, I. (r) Ante, 2, note (b).

for what purpose the injury was committed, and whether primá CHAP. I. facie lawful or illegal; and sometimes, 4thly, With what intent INJURIES, &c. it was done, as whether with or without malice.

nature of the

nature of the

injury itself.

Thus, first, with respect to the nature of the thing affected Material to conand right thereto. Injuries to the person, and to personal and sider first the real property corporeal in the possession of the claimant, may thing affected, and right therebe direct and with force, and the remedy may be trespass vi et to. armis; but if the property were incorporeal and not tangible, or not in possession, and the interest were in remainder or reversion, then the injury to such a right cannot be considered as committed directly with force, and consequently it would be incorrect to describe it or its consequent damage as committed with force; and as the character of another is not corporeal or visible, the injury must be stated accordingly, and the remedy in the latter instance is case for the consequential injury. Secondly. Injuries may be by nonfeazance, misfeazance, or Secondly. The malfeazance; nonfeazance, the not doing that which it was a legal obligation, or duty, or contract to perform; misfeazance, the performance, in an improper manner, of an act, which it was either the party's duty or his contract to perform, or which he had a right to do; and malfeazance, the unjustifiable performance of some act which the party had no right, or which he had contracted not to do. These several modes of committing private injuries are compensated by peculiar and appropriate remedies, in which the cause of action must be properly described. Again: if the injury were committed by improperly putting in force either criminal or civil process duly and regularly issued, no action of trespass could be supported, but the proper remedy would be, after an acquittal or verdict for the defendant, an action on the case for maliciously, and without probable cause, arresting the party, or otherwise causing such lawful process to be put in force; for, excepting in cases of excess, no man can be treated as a trespasser for acting under lawful process, and according to its direction, however maliciously he may have obtained it. (s)

Again: it is of the utmost importance to consider whether Whether the inthe injury complained of was strictly an injury public or jury was public or private, and private, as the answer will not only regulate the conduct of whether a ferarties acting for themselves, but also materially affect the lony, &c. substance as well as the form of the remedy. Thus an indi

(s) Per Lord Kenyon, Belk v. Broadwood, 304; 1 Dow. & R. 97, S. C.; 1 Chit. Pl.

3 Term R. 185; Elsee v. Smith, 2 Chit. R. 214, 215.

CHAP. I.

INJURIES, &C.

vidual may of his own accord, and without previous request, abate many public nuisances or injuries of commission, and perhaps with more force and to a greater extent, and without such particular care to avoid injury to the materials than he could a private nuisance; (t) whereas if it were a mere omission, there should be a prior request, and if it were a private nuisance, (u) he must cautiously avoid doing more than what is strictly necessary for the enjoyment of his right, and if guilty of any excess he will be a trespasser at least pro tanto, if not ab initio for the whole. (a) So if the injury were merely public, the remedy can only be public, and no particular individual could proceed by action for compensation for the supposed injury that he has individually sustained; for, otherwise, many individuals would sue separately, and there would not only be a multiplicity of suits (which the law considers should be suppressed); (y) and as each individual would be content to receive or recover his private compensation, the general interest of the public would be disregarded, and the nuisance perhaps continued, or the crime be inadequately punished; and for this reason, in general, the remedy must be by indictment or criminal proceeding for a nuisance to or for not repairing a public highway, or bridge, or other offence affecting a public right.(z) So in cases of felony the remedy by action for the private injury is generally suspended, (sometimes, erroneously, termed merged,) until the party particularly injured has fulfilled his duty to the public by prosecuting the offender for the public crime. (a) And for homicide all civil remedy is entirely merged in the felony, (although compensation is sometimes afforded to the widow, or relatives, in case of the homicide of a person endeavouring to apprehend an offender); therefore no action lies for

(t) In Lodie v. Arnold, 2 Salk. 458, the Court held, that when an individual has a right to abate a public nuisance, be is not bound to do it orderly, and with as little hurt in abating it as can be, and, therefore, the defendant was not answerable in that case for the rolling into the sea of the materials of an house erected across, and constituting an injury to a public way. And in another case of public nuisance, although the defendant might have opened the gate without cutting it, yet the cutting was holden not to be illegal, as the party did it in abatement of a public nuisance; id. ibid. So upon a cry of murder any person may break open the outer door of an house to prevent the commission of such public offence, though

if a mere private assault had been committed, it might have been otherwise. 2 Bos. & Pul. 260,

(u) 2 B. & Cres. 302.

(x) 9 Co. Rep.; 2 Stra. 686; Godb. 221; 1 Stark. R. 56, 173.

(y) Although that reason applies in this case, it is not in general any answer to an action; for, as has been observed, if a man will commit an injurious act to the separate rights of several, there is no reason why he should not make separate satisfaction to all.

(z) Russell v. The Men of Devon, 2 T. R. 667; 11 East, 349, 355. Same reasoning, 3 Bla. Com. 219, 220.

(a) 7 & 8 Geo. 4, c. 29, s. 57; 2 T. R. 750; 12 East, 409; 2 Car. & P. 41.

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