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pandects, compositae sunt, quibus inter se homines disceptarent : quas actiones se populus prout vellet institueret,certas solennesque esse voluerunt (d).” The forms of these actions were originally preserved in the books of the ponti. fical college, as choice and inestimable secrets ; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people (e). The "concealment was ridiculous : but [ *117) the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right ; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discerni. ble. Or, as Cicero expresses it (f ),“ sunt jura, sunt formulae, de omnibus rebus constitutae, ne quis aut in genere injuriae, aut in ratione actionis, errare possit. Erpressae enim sunt ex uniuscujusque damno, dolore, incommodo, calrmitale, injuria, publicae a praetore formulae, ad quas privata lis accummodatur." And in the same manner our Bracion, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament (g). And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds; -4actions personal, real (1), and mixed.
Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereor: and, likewise, whereby a man clains a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon loris or wrongs : and they are the same which the civil law calls" actiones in personam, quae adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere (h).” ( Of the former nature are all actions upon debt or promises ; of the latter all actions for trespasses, nuisances, assauits, defamatory words, and the like.
Real actions (or, as they are called in the mirror (i), feodal actions), which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other hereditaments, in fee-simple, fee-tail, or [*118] for term of life. By these actions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management; and the inconvenient length of their process : a much more expedi tious method of trying titles being since iniroduced, by other actions
personal and mixed.
Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance an action of waste : which is brought by him who bath the inheritance, in remainder of reversion, against the tenant for life, who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages,
(d) F. 1, 2, 3, 4 6.
(8) Sunt quaedam brevia formata super certis ca. ribut de cursu, et de communi consilio totius regni
approbata et concessa, quae quidem nullatenus muta
(A) Inst. 4.6. 15.
(1) In New York, ejectment is substituted by the Revised Statutes for the old real actions. 2 R. S. 343, 0 24.
114) See Hov. n. (14) at the end of the Vol. B. III.
in pursuance of the statute of Gloucester (k), which is a persunal recom pense; and on both, being joined together, denominate it a mixed action.
Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the respective nature of all private wrongs, or civil injuries, which may be offered to the rights of 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 (?). 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 ["119] to the king, as *well as a private satisfaction to the party injur
ed (m). And this distinction of private wrongs, into injuries with 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 sys. tem, of rights. As therefore we divide (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 effect-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 relai live, which were incident to them as members of society, and connected to
each other by various ties and relations. And the absoluce 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 correspondent nature.
1. As to injuries which affect the personal security of individuals (2).
(k) 6 Edw. I. c. 5. (1) Finch. L. 184.
(m) Finch. I.. 198. Jenk. Cent. 185.
(2) For injury to life, in general, cannot be appeal ; or the heir male for the death of his the subject of a civil action; the civil remedy ancestor, and which differed principally from being merged in the offence to the public. an indictment in respect of its not being in Therefore an action will lie for battery of wife the power of the king to pardon the offender or servant, whereby death ensued. Styles, without the appellor's consent. See post. 4 347. i Lev. 247. Yelv. 89, 90. i Ld. Raym. book, 312. 6. *5 Burr. 2643. But appeals of 377 The comedy is by indictment for mur. murder, treason, selony, and other offences, der, or, formerly, hy appeal, which the wise were abolished by 59 Geo. III. c. 46. s. I. In might have for killing her husband, provided general, all felonies suspend the civil remedies, she married not again before or pending her Styles, 346, 7; and before conviction of the
+ In New-York, a person injured by the thief. The felony does not seem to affect the commission of a felony for which the offender civil remedy with us. The owner may even is sentenced to the state prison, becomes a recover the property against a bona fide pur. creditor of the felon's estate to the extent of chaser. 1 Johns. Ř. "The right of action of his damage. 2 R. S. 700, ( 14, &c. Stolen any person injured by any felony is not inerg property is also returned to the owner on prov. ed on in any way affected bo be fi bny. 2 Å ing property and paying expenses, 2 R. S. S. 292, 0 2. 746, 0 31 ; and that without convicting the
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, 3. Tlie two next species of injuries, affecting the limbs or [*120) bodies of individuals, I shall consider in one and the same view. And these may be committed, l. 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). 3. By battery ; which is the unlawful beating of another. The least touching of another's
(6) Finch. L. 202.
(9) Finch. L. 202.
offender there is no remedy against him at law session ; but he must proceed against the ori. or in equity, id. ibid. 17 Ves. 331 ; but after ginal felon, or against the person who has the cunviction and punishment on an indictment, chattel in his possession at the tirne of the of the party for stealing, the party robbed may conviction. 2 T. R. 750. And the above act support trespass or trover against the offender, does not extend to goods obtained by false preSiyles, 347
Latch. 144. Sir Wm. Jones, tences. 5 T. R. 175; see further 1 Chilly's 147. 1 Lev. 247. Bro. Ab. tit. Trespass. Crim. L. 5. And after an acquittal of the defendant, upon (3) See in general, Com. Dig. Battery, C. an indictment for a felonious assault upon a Bac. Ab. Assault and Battery, A. An assault party by stabbing him, the latter may maintain is an attempt or offer, accompanied by a detrespass to recover damages for the civil inju. gree of violence, to commit some bodily harm, ry, ir it be not shewn that he colluded in pro- by any means calculated to produce the end, curing such acquittal. 12 East, 409. In soine if carried into execution. Levelling a gun at cases, by express enactment, the civil remedy another within a distance, from which, supis not affected by the criminalty of the of. posing it to have been loaded, the contents feader. Thus it is provided by 52 Geo. III. might wound, is an assault. Bac. Ab. Assault, c. 63, s. 5, that where bankers, &c. have been A. Abusive words alone cannot constitute guilty of embezzlement, they may be prose- an assault, and indeed may sometimes so ex• cuted, but the civil remedy shall not be affect- plain the aggressor's intent, as to prevent an ed. The 21 Hen. Vlll. c. 11, directs that act, prima facie an assault, from amounting goods stolen shall be restored to the owner to such an injury; as where a man, during as upon certain conditions, namely, that he shall size time, in a threatening posture, half drew give or produce evidence against the felons, his sword from its scabbard, and said, if it and that the felon be prosecuted to conviction were not that it is assize time, I would run thereon. Upon performance of these, the you through the body; this was held to be no right of the owner, which was before suspend. assault, the words explaining that the party ed, becomes perfect and absolute; but he can. did not mean any immediate injury. 1 Mod. not recover the value from a person who pur- 3. Bul. N. P. 15. Vin. Ab. Trespass, chased them in market overt, and sold them The intention as well as the act constitute an again before the conviction of the felon, not. assault. 1 Mod. 3, case 13. Assault for mo. withstanding the owner gave such person no- ney won at play is particularly punishable by rice of the robbery while they were in his pos- 9 Ann. c. 14. 4 East, 174.
In the U. S. or in most of them, the law owner, although the holder purchased it in will not support the title of a person to proper. market overt. See Johnson's Dig. title 'Tro ty that was embezzled against the original ver. Com. Dig. Day's ed. tit. Trover.
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 (4). 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
defence; and, if sued for it, may plead son assault demesne, or that [*121] it was the plaintiff's own original assault that occasioned it. So
likewise in defence of my goods or possession, if a man endeavours 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 church warden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation (1). 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. count 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 aggrevated 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 for ever 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 foretooth (u), and also some others (v). But the loss of one of the jawteeth, 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 (5). If the
(r) F. 47. 10. 5.
(u) Finch. L. 204.
(8) 1 Finch. L. 203. (t) 1 Sid. 301.
(4) Com. Dig. Battery, A. Bac. Ab. As. tionally push against a person in the street, or sault and Battery, B. A battery is any un- if without any default in the rider a horse runs lawful touching the person of another by the away and goes against another, no action lies. aggressor himself, or any other substance put 4 Mod. 405. Every battery includes an as in motion by him. 1 Sauud. 29. b. n. 1. 'Id. sault, Co. Litt. 253 ; and the plaintiff may re13 & 14, n. 3. Taking a hat off the head of corer for the assault only, though he declares another is no battery. 1 Saund. 14. It inust for an assault and battery. 4 Mod. 405. be either wilfully committed, or proceed from (5) One remarkable property is peculiar to want of due care, Stra. 596. Hab. 134. Plowd. The action for a mayhem, viz. that the court in 19, otherwise it is damnum absque injuriâ, which the action is brought have a discretionand the party aggrieved is without remedy, ary power to increase the damages, if they 3 Wils. 303. Bac. Ab. Assault and Battery, think the jury at the trial have not been suf. B.; but the absence of intention to commit ficiently liberal to the plaintiff; but this must the injury constitutes no excuse, where there be done super visum vulneris, and upon por sof las been a want of dne care. Stra. 596. Hab. that it is the same wound, concerning whicha 134. Plowd. 19. But if a person uninten- evidence was given to the jury. I Wis. 5.
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 the public; the *other at the suit of the party [*122] injured, to make him a reparation in damages (6).
4. Injuries, affecting a man's health (7), are where by any unwholesome practices of another a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine (w); by the exercise of a noisome trade, which infects the air in his neighbourhood (x); or by the neglect or unskilful management of his physician, surgeon, or apothecary. 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, “culpe adnumerantur, veluti si medicus curationem dereliquerit, male
(w) 1 Roll. Abr. 90.
(y) Lord Raym. 214.
Barnes, 106. 153. 3 Salkeld, 115. I Ld. Raym. cians. Com. Dig. tit. Physician ; Vin. Ab.
tit. Physician. According to Hawkins, P. C. (6) The party injured may proceed by in. if any person, not duly anthorized to practice, dictment and by action at the same time, and undertake to cure, and should kill his patient, the court will not compel him to stay proceed. he is guilty of felony, though clergyable. And ings in either. I Bos. & P. 191. But in ge. such person, so employed. cannot recover in Deral the adoption of both proceedings is con. an action for the medicines supplied. See 55 sidered vexatious, and will induce the jury to Geo. III. c. 194. However, if the party emgive smaller damages in the action. The le- ploy a person as surgeon, knowing him not to gislature has discouraged actions for trifling be one, he has no civil remedy. 1 Hen. B. injuries of this nature, by enacting, that in all 161. Bac. Ab. Action on the Case, F. 2 Wils. actions of trespass for assault and battery, in 359. Reg. Brev. 105. 8 East, 348. case the jury should find a verdict for damages Though the law does not in general imply a under forty shillings, the plaintiff shall have warranty, as to the goodness and quality of no more costs than damages, unless the judge any personal chattel, it is otherwise with reat the trial shall certify that an assauli and gard to food and liquors, in which, especially battery was sufficiently proved. See con- in the case of a publican, the law implies a structions on the statute, Tidd Prac. 8 ed. warranty. 1 Roll. Ab. 90. pl. 1, 2. 2 East, 998.
In New-York, the plaintiff in an action for With regard to private nuisances, it is par. assault and battery, false inprisonment, slan- ticularly observable that the law regards the derous words, or libel, if he sues in the supreme health of the individual though it will not af. court, and recovers no more than 50 dollars, ford a remedy for malicious and ill-natured can have no more costs than damages : but if acts tending to destroy the beauty of situabe sues in the common pleas, he recovers full tion, such as stopping a prospect, &c. 9 Co. costs. 2 R. S. 613, 06. id. 614, Ø 12. 58. b.-In complaining of a nuisance in stop
(7) The law implies a contract on the part ping ancient lights, &c. the cousequent injury of a medical man, as well as those of other must be stated to have been the deprivation of professions, to discharge their duty in a skil. lights and air, which are considered as condu ful and attentive manner, and the law will cive to health. Peake, 91. Com. Dig. tit. grant redress to the party injured by their neg. Action on the Case for a Nuisauce. As to anlect or ignorance, by an action on the case, as cient light in general, see ante. for a tortious misconduct. 1 Saund. 312. n. Public Nuisance. With respect to the in2 I Ld. Raym. 213, 4. Reg. Brevinin, 205, juries to health, as a consequence of a public 6. 2 Wils. 359.8 East, 348. And in that nuisance, it seems that if the injury be attri. ease the surgeon could not recover any fees. butable to the inhabitants of a county, no ac. Peake, C N. P. 59; see 2 New. Rep. 136. tion is sustainable. 2 T. R. 667. 9 Co. 112. But in the case of a physician, whose profes. b. 117. a. But if the special injary be occa sion is honorary, he is not liable to an action. sioned by an individual, an action lies. Bac Peake, C. N. P. 96. 123. 4 T. R. 317. though Ab. detion on the Case ; 1 Salk. 15, 16. me may be punished by the college of physi
• In New York, ; bysi ians are entitled to sue for their fees. See note * p. 28 anto