118 either a man's person or his property; recounting at the same time the respective remedies which are furnished by the law for every infraction of right. But I must first beg leave to premise, that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other, coupled with force and violence, as batteries or false imprisonment. (1) Which latter species savour something of the criminal kind, being always attended with some violation of the peace; for which, in strictness of law, a fine ought to be paid to the king, as well as a private satisfaction to the party injured. (m) And this distinction of private wrongs, into injuries with [*119] and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, I shall follow the same method that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system of wrongs must correspond and tally with the former positive system of rights. As, therefore, we divided (n) all rights into those of persons and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect the rights of property.

The rights of persons, we may remember, were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons: and relative, which were incident to them as members of society, and connected to each other by various ties and relations. And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a corresponding nature.

I. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations.

1. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our Commentaries. (2)

*2, 3. The two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these (1) Finch, L. 184. (n) See book I, ch. 1.

(m) Finch, L. 198. Jenk. Cent. 185.

[*120]

(2) That no civil action will lie at the common law for causing the death of a human being, see Whitford v. Panama R. R., 23 N. Y., 465; Carey v. Berkshire R. R. Co., 1 Cush., 475; Ohio and M. R. R. Co. v. Tindall, 13 Ind., 366; Eden v. L. and F. R. R. Co., 14 B. Monr., 204. But where death does not at once ensue, a person entitled to the services of the person injured may recover for the loss accruing between the injury and the death, and this recovery will not be barred by the death. Long v. Morrison, 14 Ind., 595; Hyatt v. Adams, 16 Mich., 180.

And now, by statute 9 and 10 Vic. c. 93, whenever the death of a person shall be caused by such wrongful act, neglect or default, as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to such action may be sued by the executor or administrator, for the benefit of the wife, husband, parent, or child of the person deceased. The damages awarded are apportioned among the persons for whose benefit the action is brought, as the jury may direct. Similar statutes have been passed in the United States. See Read v. Great Eastern R. R. Co., L. R., 3 Q. B., 555; Carey v. Berkshire R. R. Co., 1 Cush., 479; Soule v. New York, &c., R. R. Co., 24 Conn., 575; Whitford v. Panama R. R. Co., 23 N. Y. 465; Georgia, &c., Co. v. Wynn, 42 Geo., 331; Frank v. New Orleans, &c., R. R. Co., 20 La. An., 25; Walters v. Chicago, &c., R. R. Co., 36 Iowa, 458; Steel v. Kurtz, 28 Ohio St., 191; Alabama, &c., R. R. Co. v. Waller, 48 Ala., 459; Covington St. R. R. Co. v. Packer, 9 Bush, 455; S. C., 15 Am. Rep., 725; Mathews v. Warner, 29 Gratt., 570; S. C., 26 Am. Rep., 396.

The English doctrine that the civil remedy for an injury by a felony is suspended until the criminal remedy has been pursued is generally held inapplicable in the United States, where the duty of prosecuting for public offenses is devolved upon a public officer. See cases collected, 1 Bish. Cr. L., § 329, et seq.

may be committed, 1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury: but to complete the wrong, there must be both of them together. (o) The remedy for this is in pecuniary damages to be recovered by action of trespass vi et armis; (p) this being an inchoate, though not an absolute violence. 2. By assault; which is an attempt or offer to beat another, without touching him: as if one lifts up his cane, or his fist in a threatening manner at another; or strikes at him, but misses him; this is an assault, insultus, which Finch (9) describes to be "an unlawful setting upon one's person." This also is an inchoate violence, amounting considerably higher than bare threats; and, therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis ; wherein he shall recover damages as a compensation for the injury. 3. By battery; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner. And, therefore, upon a similar principle the Cornelian law de injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation, which was attended with none. (r) But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defence: for if one strikes me first, or even only assaults me, I may strike in my own defense; and, if sued [*121] for it, may plead son assault demesne, or that it was the plaintiff's *own original assault that occasioned it. So likewise in defence of my goods or possession, if a man endeavors to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away. (s) Thus, too, in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation. (t) And, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore tooth, (u) and also some others. (v) But the loss of one of the jaw teeth, the ear, or the nose, is no mayhem at common law; as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury which (when wilful) no motive can justify, but necessary self-preservation. If the ear be cut off, treble damages are given by statute 37 Hen. VIII, c. 6, though this is not mayhem at common law. And here I must observe, that for these four last injuries, assault, battery, wounding, and mayhem, an indictment may be brought as well as an action; and frequently both are accordingly prosecuted; the one at the suit of the crown for the crime against

(0) Finch, L. 202. Finch, L. 202.

1 Finch L. 203.

(p) Regist. 104.
(r) Ff. 47, 10, 5.

(t) 1 Sid. 801.

27 Ass. 11. 7 Ed. IV, 24.

(u) Finch, L. 204.

(v) 1 Hawk. P. O. 111.

the public; the *other at the suit of the party injured, to make him a [*122] reparation in damages.

4. Injuries affecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine; (w) by the exercise of a noisome trade, which infects the air in his neighborhood; (x) or by the neglect or unskilful management of his physican, surgeon, or apothecary. (3) For it hath been solemnly resolved, (y) that mala praxis is a great misdemeanor and offence at common law, whether it be for curiosity and experiment or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction. Thus, also, in the civil law, (2) neglect or want of skill in physicians or surgeons, "culpæ adnumerantur, veluti si medicus curationem dereliquerit, male quempiam secuerit, aut perperam ei medicamentum dederit." These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass upon the case. This action of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writ. (a) For though in general there are methods prescribed, and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's person or property, as battery, non-payment of debts, detaining one's goods, or the like, yet where *any special consequential damage arises, which could not be foreseen and provided for in the ordin- [*123] ary course of justice, the party injured is allowed, both by common law and the statute of Westm. 2, c. 24, to bring a special action on his own case, by a writ formed according to the peculiar circumstances of his own particular grievance. (b) For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; (c) and, therefore, wherever a new injury is done, a new method of remedy must be pursued. (d) And it is a settled distinction, (e) that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis; but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on the special case, for the damages consequent on such omission or act. (4)

5. Lastly: injuries affecting a man's reputation or good name are, first, by malicious, scandalous and slanderous words, tending to his damage and derogation. As if a man maliciously and falsely utter any slander or false tale of another; which may either endanger him in law, by impeaching him of some

(x) 9 Rep. 52. Hutt. 135.

(y) Lord Raym. 214.

(w) 1 Roll. Abr. 90. (z) Inst. 4, 8, 6, 7. (a) For example: "Rex vicecomiti salutem, Si A. fecerit te securem de clamore suo prosequendo, tunc pone per vadium et salvos plegios B. quod sit corem justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B. ad dextrum oculum ipsius A. casualiter læsum bene et competenter curandum apud S. pro quadem pecunice summa præ manibus soluta assumpsisset, idem B. curam suam circa oculum prædictum tam negligenter et improvide apposuit, quod idem A. defectu ipsius B. visum oculi prædicti totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. abeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium," &c. Registr. Brev. (b) See page 52. (c) 1 Salk. 20. 6 Mod. 54. (d) Cro. Jac. 478.

105.

(e) 11 Mod. 180. Lord Raym. 1402. Stra. 635.

Et

(3) As to the liability of a physician for the negligent or unskillful treatment of a patient: See Landon v. Humphrey, 9 Conn., 209, Holmes v. Peck, 1 R. I., 243; Walker v. Goodman, 21 Ala., 647; Hathom v. Richmond, 48 Vt., 557, Craig v. Chambers, 17 Ohio St., 253; Patten v. Wiggin, 51 Me., 594; Utley v. Burns, 70 Ill., 162; Hichcock v. Burgett, 38 Mich., 501; Gambert v. Hart, 44 Cal., 542; Heath v. Glison, 3 Ore., 64; Bradstreet v. Everson, 72 Penn. St., 124; Branner v. Stormont 9 Kan., 51; Smothers v. Hanks, 34 Iowa, 286.

(4) See the celebrated Squib case, Scott v. Shepherd, 2 Bl. Rep., 892; also, Ricker v. Freeman, 50 N. H., 420; S. C., 9 Am. Rep., 267; Percival v. Hickey, 18 Johns., 257; S. C., 9 Am. Dec., 210.

heinous crime, as to say that a man hath poisoned another, or is perjured; (ƒ) or which may exclude him from society, as to charge him with having any infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave. (g) (5) Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous: (h) and though they be such as would not be actionable in the case of a common person, yet, when spoken in disgrace of such high and respectable characters, [*124] they amount to an atrocious injury; *which is redressed by an action on the case, founded on many ancient statutes; (i) as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. (6) Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man. (k) It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it. (1) But too great encouragement being given by this lenity to false and malicious slanderers, it is now held that, for scandalous words of the several species before mentioned (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust), an action on the case may be had, without proving any particular damage to have happened, but merely upon the proba bility that it might happen. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring an action against me, unless he can show some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living. (m) In like manner, to slander another man's title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue in tail, or one who hath land by descent, a bastard), is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land. (n) But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a *man [*125] heretic or adulterer, are cognizable only in the ecclesiastical court; (0) unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill-will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander. (p) (7) Neither (as was formerly

(5) See Brooker v. Coffin, 5 Johns., 188; S. C., 4 Am. Dec., 337; Pollard v. Lyon, 95 U. S.,

225.

(6) This action is now obsolete.

(7) The defendant in an action for slander may give in evidence under the general issue. in mitigation of damages, any such facts as, without showing the truth of the charge, tend to show that defendant believed it, and thus to rebut the presumption of malice. Wagner v. Holbrunner, 7 Gill, 296; Scott v. McKinnish, 15 Ala., 662; Bisbey v. Shaw, 12 N. Y., 67; Hart v. Reed, 1 B. Monr., 166; Farr v. Rasco, 9 Mich., 353; Chapman v. Calder, 14 Penn. St., 365; Kennedy v. Dear, 6 Port., 90; Blickenstaff v. Perrin, 27 Ind., 527.

hinted) (9) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander. (r) Also if the defendant be able to justify, and prove the words to be true, no action will lie, (s) even though special damage hath ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions: for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law; (t) "Eum qui nocentem infamat, non est æquum et bonum ob cam rem condemnari; delicta enim nocentium nota esse oportet et expedit.”

A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous (u) light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and another by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libeled to break it, which offence is the same (in point of law) whether *the matter contained be [*126] true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification. (w) (8) But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts and show that the plaintiff has received no injury at all.(x) What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon: but as to signs or pictures, it seems necessary also to show, by proper innuendos and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; (9) otherwise it cannot appear, that such libel by picture was understood to be

(q) Page 29.
(t) Ff. 47, 10, 18.

(r) Dyer, 285. Cro. Jac. 90.

(u) 2 Show. 314. 11 Mod. 99.

(s) 4 Rep. 13.
(w) 5 Rep. 125. (x) Hob. 253. 11 Mod. 99.

(8) But now by statute 6 and 7 Vic., c. 96, the defendant in any indictment or information for libel may plead the truth of the matters charged, and also that it was for the public benefit that the same should be published; and this plea, if sustained, constitutes a good defense, but if not sustained, the court may, in pronouncing sentence, consider whether the guilt of the defendant was aggravated or mitigated by the plea.

In the United States, by constitutional or statutory provisions, the truth is made a defense to a criminal prosecution, if published with good motives and for justifiable ends.

(9) In general, to authorize an action of tort for malicious prosecution, there must be a concurrence of the following circumstances: 1. A suit or prosecution must have been instituted without any probable cause therefor; 2. The motive in instituting it must have been malicious; 3. The prosecution must have terminated in the acquittal or discharge of the accused. To probable cause it is necessary "that there be such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person is guilty.' Bacon v. Towne, 4 Cush., 217, 238. See Broad v. Ham, 5 Bing. (N. C.), 722; Mowry v. Whipple, 8 R. I., 360; Fagnan v. Knox, 66 N. Y., 525; Driggs v. Burton, 44 Vt., 124; Bank of British N. A. v. Strong, 1 App. Cas. Priv. Coun., 307; 16 Moak, 24. In suits for malicious prosecution the burden of showing want of probable cause is on the plaintiff and proof of malice will not establish it. Heyne v. Blair, 62 N. Y.. 19; Skidmore v. Bricker, 77 Ill., 164; Cloon v. Gerry, 13 Gray, 201. But malice may be inferred from the want of probable cause, though the inference is not a necessary one. Dietz v. Langfitt, 63 Penn. St., 234; Flickinger v. Wagner, 46 Md., 580.

In a few cases an action for the malicious institution of proceedings not criminal in their nature will lie. One of these is the case of a malicious attempt to procure an adjudication In bankruptcy without cause, or an adjudication of insanity in order to put the party under guardianship. Lockenour v. Sides, 57 Ind., 360. The case of a malicious arrest in an unfounded civil suit, or of a malicious attachment of property, in such a suit would seem equally to support this action. Collins v. Hayte, 50 Ill., 337; Preston v. Cooper, 1 Dill, 589; Woods v. Finnell, 13 Bush, 628; Williams v. Hunter, 3 Hawks, 545; S. C., 14 Am. Dec., 597.