Imágenes de páginas

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.

On ac

(u) Finch. L. 204.
(v) 1 Hawk. P. c. 111.

(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 (1); 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

() 1 Roll. Abr. 90.
(2) 9 Rep. 32. Hutt. 135.

(y) Lord Raym. 214.
(3) Inst. 4. 3. 6, & 7.

Barnes, 106. 153. 3 Salkeld, 115. I Ld. Raym. cians. Com. Dig. tit. Physician ; Vin. Ab. 176. 339.

tit. Physician. According to Hawkins, P. C. (6) The party injured may proceed by in. if any person, not duly authorized 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 selony, though clergyable. And ings in either. 1 Box. & P. 191. But in ge- such person, so employed. cannot recover in neral 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 em. give 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 ali 161. Bac. Ab. Action on the Case, F. 2 Wils. nctions 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 assault and gard to food and liquors, in which, especially baltery 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.

314. 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, foord a remedy for malicious and ill-natured can have no more costs than damages : but if acts tending to destroy the beauty of situa. be sues in the common pleas, he recovers full tion, such as stopping a prospect, &c. 9 Co. costs. 2 R. S. 613, 96. id. 014, 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 fol 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 tortions misconduct. 1 Sannd. 312. n. Public Nuisance. With respect to the in2 1 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. case the surgeon could not recover any fers. butable to the inhabitants of a county, no ac. Peake, C V. 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 injury be occa sion is honorary, he is not liable to an action.t sioned by an individual, an action lies. Bac Peake, C.N. P. 96. 123. 4 T. R. 317. though Ab. Action on the Case ; 1 Salk. 15, 16. de may be punished by the college of physi.

• In New York, ; bysi ians are entitled to sue for their fees. See note * p. 28 ante

quempian 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 [*123] 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 ordinary 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 (6). 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 conscquence 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 (8).

5. Lastly; injuries affecting a man's reputation or good name are, first, by malicious, scandalous, and slanderous words (9), tending to his damage

(a) For example: “ Rez vicecomiti salutem, Si A ipsius B visum oculi praedicti lotaliter amisit, ad fecerit the securum de clamore suo prosequendo, tunc damnum ipsius A viginti librarum, ut dicit. pone par valium et salvos plegios B quod sit coram habeas ibi nomina plegiorum et hoc breve. Teste justitiariis nostris apud Westmonasterium in octa- meipso apud Wesimonasterium, dc." (Registr bis sancti Michaelis, ostensutus quare cum idem B Brev. 105.) ad dextrum oculum ipsius A casualiter laesum bene (b) See page 52. et competenter curandum apud S. pro quadam pecu- (c) 1 Salk. 20.6 Mod. 54. niae summa prae manibus soluta assumpsisset, idem (d) Cro. Jac. 478. B curam suam circa oculum praedictum lam negli- (e) 11 Mod. 130. Lord Raym. 1402. Sra. 635. genter et improvide apposuit, quod idem A defectu

(8) The Revised Statutos of New York of some punishable offenec; for though the seem to allow the action of trespass on the rule of construing words in mitiori sensu is case to be brought in all cases where trespass now exploded, (5 East, 463. Fitzg. 253. may be brought, except for trespass on lands. Bul. N. P.4. 10 Mod. 198), yet an innuendo or (2 R. S. 553, 6 16).

construction cannot be given to words which (9) As to actions for verbal slander and li- they do not necessarily import, either of them bels in general, see Bac. Ab. Libel, and tit. selves, independently of any other circum Slander; Com. Dig. Action upon the Case for stances, or with necessary reference, or some Defamation, and tit. Libel; Vin. Ab. tit. Li. other circumstances occurring at the time of bel; Selw. N. P. Libel, and tit. Slander; Holt, the accusation. 6 T. R. 691. 4 Co. 17. b. "George, Starkie, and Mence's Treatises on 11 Mod. 99. 4 Esp. N. P. 218. 8 East, 427. Slander, and 2 Starkie on Evidence, 844 to On this account it is not actionable to call a 883; and as to indictment for libels, see post, person " villain," cheat," • rascal," "swind. 4 book, 150.

jer," or “rogue," or to say he is “ forsworn," With respect to an imputation of the guilt without a colloquium of some proceeding in a of some offence punishable in the temporal court of justice, in which the party had been courts, as an infamous crime, or punishable examined on oath. 6 T. R. 691.2 H. Bla. with imprisonment; the accusation must be 531. 2 Wils. 404, 87. 8 East, 428. Bos. precise, or have such an allusion to some prior & Pul. 33). 2 Saund. 307, 4 Co. 15. b. 2 transaction, that the hearers of the slander Ventr. 28. 2 Buls. 150. Holl's Law of Limust necessarily have understood that the bel, 176. As to this point, see Com. Dig. tit. slanderer meant to impate the plaintiff's guilt Libel. Fitzg. 121. 253. The law does not

and derogation. As if a man maliciously and falsely utter any slander ! false tale of another ; which may either endanger himn in law, by impeach

consider these latter words as necessarily im- the temporal, or where special damage has puting the guilt of a crime punishable by the been sustained, the latter courts have the ex temporal courts. So the term “ forsworn” clusive jurisdiction, and will afford redress for does not, in legal consideration, necessarily the entire slander. 2 T. R. 473. 4 Co. Rep. import perjury or false swearing in a regular 20. a. b. Sid. 214. 1 Lev. 134. Rol. Ab. 34 judicial proceeding, and consequently does 4 T. R. 16. b. Cro. Jac. 163. 12 Mod. 248. not necessarily impute to the party the guilt Ld. Raym. 809. Vent. 220. 3 Lev. 193. Stra. of having committed a punishable crime. 6 545. 55. T. R. 694. 4 Co. 15. 2 Bulst. 150. Holt's 2. With respect to the Imputation of having Law of Libel, 176.

a contagious Disorder.-Man being sormed for But is either of the above expressions, not society, and standing in almost constant need actionable in themselves, be accompanied by of the advice, comfort, and assistance of his any other circunstances tending to throw the fellow-creatures, it is highly reasonable that imputation of a punishable crime on the party any words which import the charge of having accused, and be so understood by the hearers, a contagious distemper, should be in themthey are actionable. 6 T. R. 694. So, on the selves actionable, because all prudent persons other hand, words prima facie importing a will avoid the company of a person having charge or guilt, as to call a person thief,” such a distemper. Bac. Ab. Slander, B. Com. may be qualified by the expressions and other Dig. Action on the Case for Defamation, D. circumstances, evincing that the accuser did 28.2 Wils. 403, 4. The mere accusation of not mean to insinuate that the party had been having had a disease, is not actionable, beguilty of such crime, and in that case no ac- cause it alludes to a past disease. 2 T. R. tion will be sustainable ; as, if the words be 473,4. 2 Stra. 1189. As to particular dis. "you are a thief,” for “you stole my tree," reputable

disorders, see Cro. Eliz. 289. Hob. the stealing of which is not felony; or where 5. 219. Rol. M. 43. 2 T. R. 473. 1 Saund. the witnesses called to prove the slander, ad. 248. n. 3. Bac. Ab. tit. Slander. mit that they do not believe the defendant 3. As to Slander affecting a Person in his meant to impute that the plaintiff_had been Office of Trust.-When profit or emolumen guilty of selony. Cro. Jac. 114. B. N. P. 5. is attached to them, any words which directly Peake, N. P. 4. 4 Co. 19. Stra. 142. 2 Esp. impute an unfitness, either in respect of mo R. 218. 2 New. R. 335.

rals or inability to discharge the duty of the or The accusation of a mere intent, propensi. fice, are actionable. 1 Salk. 695.698. Rol. Ab ty, or inclination to commit a crime, &c. is 65. 2 Esp. 500. 5 Rep. 125. 1 Stra. 617 2 Ld. not actionable, because only imputes an Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. Bu inchoate immorality, ana no, the actual com, in an office merely honorary, to which no pro mission of a crime for which the party accused fit, &c. is attached, a verbal accusation of in. could be punished. 4 Co. Rep. 16. b. 18. b. capacity, &c. is not actionable. 5 Co. Re: 4 Esp. R. 219. Cro. Jac. 158._ '1 Rol. Ab. 41. 125. Rep. 16. a. Salk. 695. 8. 1 Rol. Ad Freem. 46. 7 Taunt. 431. 4 Price, 46. But 65. 2 Esp. 500. 3 Wils. 177. 1 Mal. Ent. an accusation of seducing another to commit 244. In an office of trust and emolument, an & crime, as subornation of perjury, is action- imputation of an intent or inclination to comable, 1 Rol. Ab. 41; or of soliciting a servant mit a criminal breach of duty, is actionable, to steal, 3 Wils. 186. 2 East, 5; but see Salk. which is an exception to the before mentioned 696.

rule. Salk. 695. 1 Stra. 617. 2 Ld. Raym. A verbal imputation of the breach of any 1369. 1480. 4 Rep. 16. a. 3 Wils. 177. 2 moral virtue, duty, or obligation, such as chas. Saund. 307; see Cro. Jac. 339. b. 1. Bull. tity, piety, &c. (which, thongh it may depre. N. P. 5. Holt's Law of Libel, 197. ciate a person in the opinion of society, and bal imputation, that the plaintiff gave to the subject him to censure in the ecclesiastical commissioners of the admiralty 2001. for a court, does not expose him to punishment in warrant to be purser of a man-of-war, would the temporal courts), is not actionable, 4 be actionable, as imputing a corruption of a Taunt. 355 ; though if in writing, it will be public trust, and a crime in tempting to cor otherwise, 3 Wils. 187. Com. Dig. tit. Action ruption. 5 Burr. 2699. on the Case for Defamation, F. 20; and the 4. As to Slander affecting a Person in his party aggrieved must resort to the ecclesiasti. Trade, Profession, or Occupation.-Word, eal courts for redress, which courts were es. which impute the want of integrity or capaci. tablished for reformation of morals, and have ly, whether mental or pecuniary, in the conan exclusive jurisdiction over the punishments duct of a profession, trade, &c. in which the of fornication, &c. Therefore in accusations party is engaged, are actionable. 1 Mal. Ent. of such offences, as could not endanger the 214. Thus an action will lie for accusing a jarty in the temporal courts, the judges, pro. clergyman of incontinence, &c. for which he fossing not to be acquainted with the extent may be deprived, 4 Co. 17; or a barrister, atof the jurisdiction of the ecclesiastical courts, torney, or artist, of inability, inattention, or considered it most expedient to refer the party want of integrity, 3 Wils. 187. 2 Bla. R to those courts for redress. 2 Salk. 692. 2 750; as to say of an attorney, “ what, does n Stra. 946. 1 Lev. 49. 7 Mod. 78. But when pretend to be a lawyer? he is no more a the accusation is partly of an offence punish. lawyer than the devil,” 3 Wils. 59. 7 Moore, able in the ecclesiastical courts, and partly in 200. 3 Bro. & B. 29 3 B. & A. 702; or a Voi.. U.


A ver

ing him of some heinous crime, as to say that a man hath

hath poisoned

ano ther, or is perjured (f); or which may exclude him from society, as to

(f) Finch. L. 185. rerson in trade (however inferior, 1 Lev. 115.) costs, however small the damages; but if the of fraudulent or dishonourable conduct, or of words be actionable in themselves, though being in insolvent circumstances. Ld. Ruym. special damages be proved, the plaintiff, un1480. And to say of one who carries on the less he recover damages, will be entitled to business of a corn vender, "you are a rogue no more costs than damages. Willes, 438. and a swindling rascal, you delivered me 100 2 Ld. Raym. 1588. 2 Stra. 936 Tidd, 8 ed. bushels of oats worse hy 6s. a bushel than 1. 997. bargained for," is actionable, and entitles him II. FALSITY OF THE IMPUTATION.--To to a verdict without proof of special damage. render any imputation against the character 3 Bing 104. But an action is not sustainable actionable, it must be false, 5 Co. 125, 6 Hob. for saying a tradesman has charged an exor- 253 ; ard though the falsity of the imputation bitant sum for his goods, &c. unless fraud be is in general to be implied till the contrary be imputed, &c. Bac. Ab. tit. Slander, B. 4. If shewn, 2 East, 436.] Saund. 242. yet the defamatory words he spoken of two persons defendant may, in any civil action, plead spe affecting them in their joint trade, they may cially, though he cannot give in evidence in join in an action for the injury. 3 B. & P. der the general issue, that the slanderous se 150. In all these cases the words are action presentation was true. Willes, 20. 1 Saund. able, without proof of special damage, because i30. The instance of a master making an unthey have a certain tendency to injure the favurable representation of his servant, upon person accused. Bac. Ab. Slander, B. 4. In an application for his character, seems to be these and the prior cases the words must be an exception, in that case there being a prespoken of the party in relation to his office, sumption from the occasion of speaking, that trade, &c., and be so alleged in the declara: the words were true. I T.R. III. 3 Bos. and tion, and proved at the trial, or the words Pul. 587. themselves must appear to have been spoken III. THE PUBLICATION.-The sending a of the office, &c. or necessarily to affect in libel to the party hbelled, is a sufficient publithat view, unless special damage be averred cation to suliject the libeller to an indictment, and proved. 2 Saund. 307. a. I Saund. 242. As tending to a breach of the peace. 2 Bla n. 3 ! Lev. 280. Ld. Raym. 1480. Stra. 618. Rep. 1038. I T. R. 110. 1 Saund. 132. n. 2, 696. 1169. Cro. Jac. 554. Salk. 694.

4 Esp. N. P. 117. 2 Esp. 623. 2 East's Rep. Words actionable in respect of Special Da. 361. 2 Barn. K. B. 102. 2 Kel. 58. 2 Stark. mage.--The special damage sufficient to sup. 245. But it is essential to the support of an port an action, must be a certain actual loss, action, that there be a publication by the des (as of a particular marriage), or the acquaint: fendant of the libel or words to a third person, ance or friendship, of some specified person, and also that such person understood the words Rol. Ab. 36. 1 Lev. 261. 2 "Bos. & Pul. in the sense the plaintiff wishes to establish, 284. 1 Saund. 243. 3 B. & P. 372. 4. 6. 1 or that they necessarily have that meaning. Taunt. 39. 2 Edw. II. Ed. 11. b. I. Bac. 1 Rol. Ab. 74. Cro. Eliz. 857.861. I Saund. Ab. Slander, C.; or where in consequence of 242. n. 3. 2 Saund. 307. Bac. Ab. Slander, the imputation of incontinence, casi upon à D. It is the province of a jury to decide dissenting preacher at a licensed chapel, the whether or not a publication he sufficiently congregation refuse to allow him to preach proved. 2 Bla. Rep. 1037. 1 Saund. 132. n. there any more. and discontinue the emolu. 2. It is immaterial in what way the slander ment they would otherwise have given bim, was conveyed, however obscure, if the person he may inaintain an action for the consequen. who heard it understood it in an actionable tial damage. 8 T. R. 130. Probable damage sense, and the court will put the witnesses' has been in some instances declared sufficient, construction on the words, the old rule of inus to say to a father of an heir apparent, that tendment in mitiori sensu being exploded. 5 he is a bastard, in consequence whereof the East, 463. Bac. Ab. Libel, A. 3. If A. send father has declared a design of disinheriting a manuscript to the printer of a periodical him, and does actually convey away the es- work, and does not restrain the printing and tate. 1 Rol. Ab. 38. Cro. Jac. 213. sed vide publishing it, and be print and publish it, A. 3 Wils. 188. Yet having incurred the dan. is liable as the publisher, and liable to an ac. ger of being turned out of doors from the tion, 5 Dow. 201 ; and proof that the defend pnrents' displeasure, from calumnious impu. ant knew that letters addressed to the plaintiff tation, is not sufficient. 1 Lev. 261. I Taunt. were usually opened by his clerk, is evidence 39. The special damage must be incident to go to a jury, of his intention that the libel and natural to the words spoken, and not the should be read by a third person, so as to consequence of the unlawful act of a third amount to an actionable publication, 2 Stark person. 8 East, 1. Where the action is sus. 63; and proof of the delivery of a copy of a tainable merely on account of special damage newspaper, cuntaining a libel, to the stamp occasioned by words not actionable theme office, is sufficient proof of publication. welves, it suffices to bring the action within B. & C. 35. Every ropy of a libel sold by six years, and the plaintiff is entitled to full defendant is a separate publication, and a se

+ The Revised Statutes of New-York require both actions of slander to be brought in two years. (2 R. S. 286, 0 20.)

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