or only children, they shall respectively, in either case, take one moiety, and the administrator the other; if neither widow nor child, the administrator shall have the whole. And this portion, or dead man's part, the administrator was wont to apply to his own use, till the statute 1 Jac. II. c. 17. declared that the same should be subject to the statute of distribution.

It is also to be observed, that if the wife be provided for by a jointure before marriage, in bar of her customary part, it puts her in a state of nonentity, with regard to the custom only; but she shall be entitled to her share of the dead man's part under the statute of distributions, unless barred by special agreement. And if any one of the children are advanced by the father in his lifetime with any sum of money (not amounting to their full proportionable part) they shall bring that portion into hotchpot with the rest of the brothers and sisters, but not with the widow, before they are entitled to any benefit under the custom but, if they are fully advanced, the custom entitles them to no further dividend.

Thus far in the main the customs of London and of York agree: but, besides certain other less material variations, there are two principal points in which they considerably differ. One is, that in London the share of the children (or orphanage part) is not fully vested in them till the age of twenty-one, before which they

cannot dispose of it by testament: and if they die under that age, whether sole or married, their share shall survive to the other children; but after the age of twenty-one, it is free from any orphanage custom, and in case of intestacy, shall fall under the statute of distributions. The other, that in the province of York, the heir at common law, who inherits any land either in fee or in tail, is excluded from any filial portion or reasonable part.

BOOK III.

OF PRIVATE WRONGS.

CHAPTER I.

OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.

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 misdemeanors.

The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society. This remedy is therefore principally sought by application to these courts of justice; that is, by civil suit or action. 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 ordi

nary forms of justice, there is allowed in those cases an extra-judicial 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.

Of the first sort 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. 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 the 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. 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.

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.

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 sone 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 that he commits no riot in the doing