No. 2441. Book 4, tit. 2. No. 2442. may see and know what is offered to be his own.(a) And when an offer of packages is made, those packages must be tendered under such circumstances, that the person who is to pay for the goods shall have an opportunity afforded him, before he can be called upon to part with his money, of seeing that the goods presented for his acceptance, are in reality those for which he has contracted.(b) We have seen that a tender of money must be made on the day it becomes due, and that when made afterward, it goes only in mitigation of damages. The rule with regard to the time when a tender of specific articles must be made is different; if it be not made at the day, it cannot be made afterward. (c) When stock is to be tendered, every thing must be done by the debtor to enable him to transfer it, but it is not absolutely requisite that it should be transferred, (d) 2441.-6. For the purpose of defending himself from an expected action on a contract, the defendant may, in many cases, before the commencement of the action, purchase or obtain a negotiable bill or note upon which the expected plaintiff is indebted, and, if sued afterward, he may avail himself of a set off. TITLE II.-OF REMEDIES WITHOUT LEGAL 2442. These remedies are of various kinds: 1, by the act of the party aggrieved; 2, by the act of both parties; 3, by operation of law. No. 2443. Book 4, tit. 2, chap. 1, sec. 1, 2. No. 2445. CHAPTER I.-OF REMEDIES BY THE ACT OF THE PARTY AGGRIEVED. 2443. If there are two things diametrically opposed to each other, they are violence and law: in societate civili aut lex aut vis valet. The law rules every fact and every human action, it is present every where, and so exerts its salutary influence, as to prevent force from intruding itself any where to do justice. Force can seldom be used except by the magistrate to attain the ends of the law. The rule ne privatus sibi ipsi jus dicat is, in the social state, not only a law, but a condition of existence. There are some situations, however, where a party has not the time or opportunity to invoke the aid of the magistrate: non habui capium magistratus adeundi. In those rare exceptions, which prove the existence of the rule, the law has put a limited remedy in the hands of the party injured. He acts, not in opposition, but under the sanction, and in accordance, with the law. There can be no law against the law. The party aggrieved may remove or redress an injury, 1, by self-defence, and the defence of those related to him; 2, by recaption and entry; 3, by the removal of nuisances and other injuries; 4, by distress. SECTION 1.-OF SELF-DEFENCE. 2444. The subject of self-defence, and of the defence of relations and of property, real and personal, has been fully considered elsewhere, so that here it is only necessary to refer to the subject. (a) SECTION 2.-OF RECAPTION AND RE-ENTRY. 2445. Recaption is the act of a person who has been deprived of the custody of another, to whom he is legally entitled, by which he regains the peaceable (a) Ante, n. 203. No. 2446. Book 4, tit. 2, chap. 1, sec. 2. No. 2446. custody of such person; or of the owner of personal or real property who has been deprived of his possession, by which he retakes the possession peaceably. It may be made of a person, of personal property, or of real estate. In every case it must be done peaceably, without occasioning a breach of the peace, or doing an injury to a third person, who has not been guilty of the wrong.(a) 2446.-1. Recaption of a person is the act by which one has been unlawfully deprived of the custody of another, to which he is lawfully entitled, by which he regains the peaceable custody of such person. The right of recaption of a person is confined to a husband in taking his wife; a parent, his child, when he has the lawful custody of such child; a guardian of the person, his ward; and, according to Blackstone, a master, his servant; but this must be only when the servant assents to the recaption, unless he is an apprentice bound to render services, and stay with his master. The owner of a slave has also a right to recapture him, even in those states where slavery is not tolerated, if the slave has escaped and gone there without his master's consent. (b) In these cases the party injured may enter the house of the wrong doer, without a demand being first made, the outer door being open, and take and carry away the person wrongfully detained. He may also, for that purpose, enter the house of the person harboring, who was not concerned in the abduction, if he can do so peaceably, but a demand should be first made.(c) But if the person attempting to make the recaption be resisted with force, his remedy is by an application to a court, or a judge, who will grant a writ of habeas No. 2447. Book 4, tit. 2, chap. 1, sec. 2. No. 2147. corpus on behalf of the person having a right to the custody. 2447.-2. By recaption of personal property is understood the act of the owner of chattels who has been deprived of his possession, by which he retakes possession peaceably. For this purpose, when he has been dispossessed, he may in general justify the retaking them from the house and custody of the wrong doer, even without a previous request to redeliver them. (a) But in this kind of recaption too much care cannot be observed to avoid any personal injury or breach of the peace. When, on the contrary, the chattels have not been originally illegally seized, but are merely wrongfully detained, the owner must request a redelivery; nor can the owner without leave, enter the house or land of a third person, not privy to the wrongful retainer, to take his goods out of it.(b) If the property taken has been altered in its form, or improved, without altering it into a different species, the owner may retake the whole. (c) When goods are obtained of a purchaser by false and fraudulent pretences, no property passes, and the vendor may lawfully rescue and retake them, even by stratagem, wherever he can find them.(d) In some cases the party injured has no remedy by action at law, and the right of recaption is the only one which avails him; as where one of several joint tenants, or tenants in common, of a chattel, takes the exclusive possession of the property.(e) But though the injured party has no remedy at law, yet, in some (a) Anon. 3 Salk. 169; Weaver v. Bush, 8 T. R. 78. (b) Roll. Ab. 565; Bac. Ab. Trespass, E; 8 Bing. 186. (c) Ante, n. 505. (d) Earl of Bristol v. Willsmore, 1 Barn. & Cr. 514; S. C. 2 D. & R. (e) Cubitt v. Porter, 8 Barn. & Cr. 269. No. 2447. Book 4, tit. 2, chap. 1, sec. 2. No. 2447. cases, equity will regulate the enjoyment of such joint property. As to the extent of force which the owner of real property may use, it is a rule that to justify an entry into the house or land of another to retake personal property, it must be shown that it was improperly taken away, or received, or detained, and placed by the wrong doer in his house or land; in this case an entry may be made without previous request. (a) In all other cases, to entitle the owner to retake such property, the owner can only justify moliter manus, nor can he without leave, as before observed, enter the house of a third person, not privy to the wrongful detainer, to take his goods, if they get there through his own default.(b) Goods which have been obtained fraudulently, under color of a contract, may be retaken by the seller, because no title passed to the pretended purchaser. The seller may, in like manner, retake goods which he has sold without fraud, if they are in transitu, that is, if they have not arrived at their place of destination, and the purchaser has become insolvent, and for this purpose he may use any means short of force.(c) The owner of a chattel has a right to take it into his possession, although he never possessed it before, as where a man purchases a specific chattel, for example, the horse Napoleon; and he pays for him or tenders the price to the seller, if the seller refuses to deliver him, he may take him, if he can do so peaceably; but if the sale be not of a specific chattel, as if a man sell one hundred bushels of wheat, to be taken out of a certain heap, the purchaser cannot justify taking it, because no property in the wheat passed to (a) Crawford v. Hunter, 8 T. R. 18. (b) 8 Bing. 186. (c) Lickbarrow v. Mason, 2 T. R. 75; In re Constantia, 6 Rob. R. 324. |