Art. 2. Civil Remedies for Wrongs.

cution, the one is not merged in the other," is a codification of preceding statutes enacting that persons aggrieved by any felony may maintain an action in like manner as if the act had not been committed feloniously, and in no case shall the right of action be merged in the felony, the purpose being to change the rule prevailing at common law. People v. Piat, 19 Misc. Rep. 131 (134), citing Newton v. Porter, 5 Lans. 423.

The same rule was held under the Revised Statutes. In Gordon v. Hostetter, 37 N. Y. 99 (105), it is said that the civil remedy of a plaintiff is neither merged in an alleged felony, nor suspended until the conviction of the offender.

Where one in perpetration of a public wrong commits an injury upon another peculiar to the injured party in his individual capacity, and not simply as a member of the community, tne injured party may sustain an action in his individual capacity for the damages sustained by him. This was always the rule in cases of misdemeanor, but did not at common law extend to felonies, as the private wrong was merged in the felony; but under our statute the right to prosecute one is not merged in the other. Smith v. Lockwood, 13 Barb. 209 (217).

A person may be liable civilly, although he has been prosecuted criminally for the same offense. Van Norden v. Robinson, 45 Hun, 567 (570); Kain v. Larkin, 56 Hun, 79, 9 N. Y. Supp. 89; Austin v. Carswell, 67 Hun, 579, 22 N. Y. Supp. 478.

ARTICLE II.

CIVIL REMEDIES FOR WRONGS.

PAGE.

SUBDIVISION 1. Self-defense and abatement of nuisance.... 201

Self-Defense and Abatement of Nuisance.

In the leading case of Ashby v. White, 4 Ld. Raym. 938, 1 Smith's Cases, 473, Lord Holt said: "It is a vain thing to imagine a right without a remedy; for want of right and want of remedy are reciprocal." To repel force by force is said to be the right of every person. The force employed must not be out

Art. 2. Civil Remedies for Wrongs.

of proportion to the apparent urgency of the occasion. Pollock on Torts, 210.

Citing Cooley on Torts, p. 50, for the rule that we are allowed to repel force by force not for the redress of injuries, but for their protection.

The right of self-defense extends to the use of physical force in the protection of property as well as of the person of the defendant, provided the property be at the time in the defendant's possession. Bigelow on Torts (7th ed.), & 381.

The term "self-defense" may be defined to be a species of redress exercised by one person to protect his person or property from injury by another. 21 Encyc. of Law (1st ed.), 1058. In defense of one's person when an assault is made it may be repelled by force sufficient for self-defense, although if the person assaulted uses excessive force, beyond what is necessary for selfdefense, he not only deprives himself of the right to maintain an action for the assault, but is liable for the excess. Elliott v. Brown, 2 Wend. 497.

Self-defense is a primary law of nature and is held in excuse for breaches of the peace, but care must be taken that the resistance does not exceed the bounds of mere defense, prevention, or recovery, so as to become vindictive. Scribner v. Beach, 4 Den.

448.

So one may justify an assault in defense of his land or goods, or of the goods of another delivered to him to be kept, and the resumption of possession of land and houses by force is frequently allowed. Bliss v. Johnson, 73 N. Y. 529; Scribner v. Beach, 4 Den. 448, citing numerous authorities. Cited in People v. McGrath, 47 Hun, 326, together with Shorter v. People, 2 N. Y. 193; People v. Sullivan, 7 N. Y. 396.

In a few cases a party is allowed to redress his own wrong without an appeal to the law. Where by the act or wrongful neglect of another a nuisance exists to his prejudice, whether it injures him alone or is one that is a nuisance to the public generally, but in some peculiar manner injurious to him, he may of his own volition proceed to abate or remove it. The blocking or encroaching upon a highway is a public nuisance, and the public authorities should be prompt in abating it, but one who has occasion to make use of the way need not await their action, but may himself lawfully remove that in which the nuisance consists.

But

Art. 2. Civil Remedies for Wrongs.

if he seeks compensation for the personal wrong he must resort to suit at law. Cooley Elements of Torts, 16.

A private nuisance may be abated by the party aggrieved who may always resort to this summary method of redress whenever he has been injured to such an extent as to give him a right of action. 1 Am. & Eng. Encyc. of Law (2d ed.), 79.

Any one may abate a common nuisance. Thompson v. Allen, 7 Lans. 459, citing 3 Blackst. 5; Brown v. Bowan, 30 N. Y. 519; Adams v. Conover, 87 id. 422 (428).

In Pierce v. Dart, 7 Cow. 609, it is held that abatement of a nuisance is a remedy by the act of a party, but that it does not bar an action for the original invasion of plaintiff's right. While in Fort Plain Bridge Co. v. Smith, 30 N. Y. 44 (62), it is held that no one has a right to abate a nuisance unless he has himself sustained some damages not sustained by the rest of the community. Lansing v. Smith, 8 Cow. 146.

SUBDIVISION 2.

Action of Replevin.

Replevin is a remedy for any unlawful taking and detention, or detention alone, of personalty, the same being delivered to the claimant upon security given either to make out the injustice of the detention or to return the property. It is "a form of action which lies to regain possession of personal chattels which have been taken from the plaintiff unlawfully." Bouv. Law Dict. Cited in Fiero on Special Actions, 738.

"Replevin lies whenever the defendant unlawfully detains property from the plaintiff, without regard to the manner of taking, though, at common law, the taking must have been unlawful. In trover, the plaintiff never obtains the possession of the property, but only its alternative value in damages, and the same is true of trespass. While in replevin the plaintiff, by giving bond, obtains possession of the property at the beginning of the action. Replevin, therefore, differs from trover and trespass in that it is for the recovery of the specific property and not for damages. It differs from trespass in that it lies for property wrongfully detained, irrespective of the manner of taking; and it differs from detinue in that it restores the property to the plaintiff at the beginning of the action." 20 Am. & Eng. Encyc. of Law (1st ed.), 1045.

Art. 2. Civil Remedies for Wrongs.

The action of replevin lies for any wrongful taking or unlawful detention of the goods of another. It belongs to the same class of cases as trespass and trover. Pangburn v. Partridge, 7 Johns. 140; Wheeler v. McFarland, 10 Wend. 318; Gardner v. Campbell, 15 Johns. 401; Hopkins v. Hopkins, 10 Johns. 369; Marshall v. Davis, 1 Wend. 109; Holbrook v. Wight, 24 Wend. 169.

An action to recover a chattel, as regulated by the Code of Civil Procedure, is substantially a substitute for an action of replevin as it previously existed. Griffin v. L. I. R. R. Co., 101 N. Y. 351.

The history of the writ of replevin at common law and under our statutes is reviewed in Manning v. Keenan, 73 N. Y. 45. Replevin is a special action under the Code of Procedure, §§ 1689 to 1736. It is, however, a form of action and not a distinct tort. It relates to procedure rather than to the law of torts. As such it is fully treated in Fiero on Special Actions, 737-835.

SUBDIVISION 3.

Equitable Relief.

The authorities clearly indicate that the power of the courts to afford a remedy in actions for wrongs is not confined to the form of actions known to the common law. This is especially true in view of the provisions of the Code by which forms of action are abolished and the complaint is required only to contain "a plain and concise statement of the facts constituting each cause of action." Code, § 481.

"With respect to wrongs independent of contract, the restraining process of equity extends throughout the whole range of property rights and duties recognized by municipal law. Although the jurisdiction of equity is in general so extensive, it is restrained and modified by considerations of convenience, and equity will not interfere where the breach of a duty or the violation of a right may be completely and adequately paid for by damages at law, or where other reasons of justice and convenience are against and in contravention of equity." Eaton Eq. 578, citing Snell Eq. 492; Pomeroy on Equity Jurisprudence, § 1338.

While equity does not concern itself with torts merely for the purpose of awarding compensation, still from an early period the prevention of torts through the interposition of chancery has constituted a not inconsiderable feature of its jurisdiction.

* * *

Art. 2. Civil Remedies for Wrongs.

Injunction is available to prevent the commission of many species of torts, and in this field as well as others it has been constantly extended. * * * Injunction lies to restrain trespass where the remedy in damages would be inadequate; to prevent the commission of waste; to restrain the continuation of nuisances; to protect easements such as those of support, party-walls, the right of way, and the flow of water; and to prevent the infringement of copyrights, patents, and trademarks. 11 Am. & Eng. Encyc. of Law, 192, 193.

Subject to a few exceptions, courts of equity exercise a general jurisdiction to grant relief in cases of fraud, concurrent with the jurisdiction of courts of law. Sometimes their jurisdiction is exclusive. It is. a general rule, however, that a court of equity will not assume jurisdiction in a case where there is a plain, adequate, and complete remedy at law, even though fraud is charged as a ground of relief. But to exclude jurisdiction, it is not enough merely to show that there is a remedy at law. The remedy must be plain, adequate, and complete. The remedy at law, to exclude equity jurisdiction in cases of fraud, may be either by an action brought by the person defrauded, or by defense or counterclaim in an action by the other party. 14 Am. & Eng. Encyc. of Law, 172.

The jurisdiction of equity to prevent torts is exercised subject to the general maxim that equity will not interfere where there is a full, adequate, and complete remedy at law. The jurisdiction, nevertheless, is very broad and embraces very many subjects. Most of them will be found under some one of the following heads, namely: "Waste; Trespass; Nuisance; Copyright; Literary Property; Patent Right; Trademarks; Alienation of Property; Protection of Property; Pending Litigation; Negative Covenants, and Corporations." Bispham's Principles of Equity, 554.

Courts of equity have never fixed any definite bounds as regards the wrongs and abuses which they will and will not restrain by injunction. Instances are continually arising where the dilatory proceedings of an action at law do not afford a sufficient remedy. Courts in granting the remedy by injunction against wrongs exercise a sound discretion, and it is not a fatal objection that the purpose for which the particular writ is asked is novel. Spelling on Injunctions, §§ 5, 921, citing Eden on Injunctions, pp. 1, 2. The following cases are there referred to in which injunction will lie - Prevention of Monopoly (see Anti-Trust Statute, N. Y.);