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paudects, compositae sunt, quibus inter se homines disceptarent: quas e populus prout vellet institueret, certas solennesque esse voluerunt (d)." Th 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 publisned 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. Expressae enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicae a praetore formulae, ad quas privata lis accommodatur." And in the same manner our Bracton, 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 legisia. tors 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 distinguisned into three kinds;14actions personal, real (1), and mixed.

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and, likewise, whereby a man claims 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 torts or wrongs and they are the same which the civil law calls " actiones in per sonam, 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, assaurts, 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 introduced, by other actions per sonal and mixed.

Mixed actions are suits partaking of the nature of the other two, where in some real property is demanded, and also personal damages for a wrong Bustained. As for instance an action of waste which is brought by him who hath the inheritance, in remainder of reversion, against the tenant for life, who hath committed waste therein, to recover not only the land wast ed which would make it merely a real action; but also treble damages

(d) Ff. 1. 2. 2, ◊ 6.

(e) Cic. pro Muraena. ◊ 11. de orat. l. 1, c. 41. f) Pro Qu. Roscio. § 8.

(g) Sunt quaedam brevia formata super certis cabus de cursu, et de communi consilio totius regni

approbata et concessa, quae quidem nullatenus muta
ri poterint absque consensu et voluntate eorum. (
de exceptionibus, c. 17, ◊ 2.)

(h) Inst. 4. 6. 15.

(i) c. 2, ◊ 6.

(1) In New-York, ejectment is substituted by the Revised Statutes for the old real actions

2 R. S. 343, ◊ 24.

(14) See Hov. n (14) at the end of the Vol. B. M.

in pursuance of the statute of Gloucester (k), which is a personal re pense; and so both, being joined together, denominate it a mixed act.on. 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 al 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 some thing of the criminal kind, being always attended with some violation of

the peace; for which in strictness of law a fire ought to be paid [119] to the king, as well as a private satisfactio to the party injur


ed (m). And this distinction of private wron,, into injuries with and without force, we shall find to run through all t 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 wil' ollow 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 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 correspondent nature. I. As to injuries which affect the personal security of individuals (2).

(k) 6 Edw. I. c. 5.

(2) Finch. L. 184

(2) For injury to life, in general, cannot be the subject of a civil action; the civil remedy being merged in the offence to the public. Therefore an action will lie for battery of wife or servant, whereby death ensued. Styles, 347. 1 Lev. 247. Yelv. 89, 90. 1 Ld. Raym. 337 The remedy is by indictment for mur der, or, formerly, by appeal, which the wife might have for killing her husband, provided she married not again before or pending her + In New-York, a person injured by the mmission of a felony for which the offender s sentenced to the state prison, becomes a reditor of the felon's estate to the extent of his damage. 2 R. S. 700, § 14, &c. Stolen property is also returned to the owner on prov. ing property and paying expenses, 2 R. S. 746,31; and that without convicting the

(m) Finch. I.. 198. Jenk. Cent. 185.
(n) See book I. ch. 1.

appeal; or the heir male for the death of his
ancestor, and which differed principally from
an indictment in respect of its not being in
the power of the king to pardon the offender
without the appellor's consent.
See post, 4
book, 312. 6. 5 Burr. 2643. But appeals of
murder, treason, felony, and other offences,
were abolished by 59 Geo. III. c. 46, s. 1. In
general, all felonies suspend the civil remedies,
Styles, 346, 7; and before conviction of the
thief. The felony does not seem to affect the
civil remedy with us. The owner may even
recover the property against a bonâ fide pur-
chaser. 1 Johns. R. The right of action of
any person injured by any felony is not merg
ed on in any way affected by be felony. 2 R
S. 292, § 2.

hey are either injuries against their lives, their limbs, their Lodies their Lealth, 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 com. mentaries.

*2, 3. The 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, 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 e: 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

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offender there is no remedy against him at law or in equity, id. ibid. 17 Ves. 331; but after conviction and punishment on an indictment, of the party for stealing, the party robbed may support trespass or trover against the offender, Styles, 347. Latch. 144. Sir Wm. Jones, 147. 1 Lev. 247. Bro. Ab. tit. Trespass. And after an acquittal of the defendant, upon an indictment for a felonious assault upon party by stabbing him, the latter may maintain trespass to recover damages for the civil injury, if it be not shewn that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminalty of the of fender. Thus it is provided by 52 Geo. III. c. 63, s. 5, that where bankers, &c. have been guilty of embezzlement, they may be prosecuted, but the civil remedy shall not be affect ed. The 21 Hen. VII. c. 11, directs that goods stolen shall be restored to the owner apon certain conditions, namely, that he shall give or produce evidence against the felons, and that the felon be prosecuted to conviction thereon. Upon performance of these, the right of the owner, which was before suspended, becomes perfect and absolute; but he cannot recover the value from a person who purchased them in market overt, and sold them again before the conviction of the felon, notwithstanding the owner gave such person notice of the robbery while they were in his pos

In the U. S. or in most of them, the law will not support the title of a person to proper ty that was embezzled against the original

(g) Finch. L. 202.

session; but he must proceed against the or. ginal felon, or against the person who has the chattel in his possession at the time of the conviction. 2 T. R. 750. And the above act does not extend to goods obtained by false pretences. 5 T. R. 175; see further 1 Chitty's Crim. L. 5.f

(3) See in general, Com. Dig. Battery, C. Bac. Ab. Assault and Battery, A. An assault is an attempt or offer, accompanied by a de gree of violence, to commit some bodily harm by any means calculated to produce the end if carried into execution. Levelling a gun at another within a distance, from which, sup posing it to have been loaded, the contents might wound, is an assault. Bac. Ab. Assault, A. Abusive words alone cannot constitute an assault, and indeed may sometimes so ex. plain the aggressor's intent, as to prevent an act, prima facie an assault, from amounting to such an injury; as where a man, during as size time, in a threatening posture, half drew his sword from its scabbard, and said, if it were not that it is assize time, I would run you through the body; this was held to be no assault, the words explaining that the party did not mean any immediate injury. 1 Mod 3. Bul. N. P. 15. Vin. Ab. Trespass, A. 2 The intention as well as the act constitute an assault. 1 Mod. 3, case 13. Assault for mo. ney won at play is particularly punishable by 9 Ann. c. 14. 4 East, 174.

owner, although the holder purchased it in market overt. See Johnson's Dig. title Tro 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). 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 o 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 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) Ff. 47. 10. 5.

(s) 1 Finch. L. 203. (t) 1 Sid. 301.

(4) Com. Dig. Battery, A. Bac. Ab. Assault and Battery, B. A battery is any unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund. 29. b. n. 1. Id. 13 & 14, n. 3. Taking a hat off the head of another is no battery. 1 Saund. 14. It must be either wilfully committed, or proceed from want of due care, Stra. 596. Hob. 134. Plowd. 19, otherwise it is damnum absque injuria, and the party aggrieved is without remedy, 3 Wils. 303. Bac. Ab. Assault and Battery, B.; but the absence of intention to commit the injury constitutes no excuse, where there has been a want of due care. Stra. 596. Hob. i34. Plawd 19. But if a person uninten

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

tionally push against a person in the street, or if without any default in the rider a horse runs away and goes against another, no action lies. 4 Mod. 405. Every battery includes an as sault, Co. Litt. 253; and the plaintiff may recover for the assault only, though he declares for an assault and battery. 4 Mod. 405.

(5) One remarkable property is peculiar u the action for a mayhem, viz. that the court in which the action is brought have a discretionary power to increase the damages, if they think the jury at the trial have not been su ficiently liberal to the plaintiff; but this must be done super visum vulneris, and upon prof that it is the same wound, concerning which evidence was given to the jurv. 1 Wis. 5.

ear be cut off, treble damages are given by statute 37 Hen. VIII. 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 vigou 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, o 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 of surgeons," culpæ adnumerantur, veluti si medicus curationem dereliquerit, male

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Barnes, 106. 153. 3 Salkeld, 115. 1 Ld. Raym. 176. 339.

(6) The party injured may proceed by indictment and by action at the same time, and the court will not compel him to stay proceedings in either. 1 Bos. & P. 191. But in general the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature has discouraged actions for trifling injuries of this nature, by enacting, that in all actions of trespass for assault and battery, in case the jury should find a verdict for damages under forty shillings, the plaintiff shall have no more costs than damages, unless the judge at the trial shall certify that an assault and battery was sufficiently proved. See constructions on the statute, Tidd Prac. 8 ed.


In New-York, the plaintiff in an action for assault and battery, false inprisonment, slanderous words, or libel, if he sues in the supreme court, and recovers no more than 50 dollars, can have no more costs than damages; but if he sues in the common pleas, he recovers full costs. 2 R. S. 613, § 6. Id. 614, § 12.

(7) The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner, and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for a tortious misconduct. 1 Saund. 312. n. 2. 1 Ld. Raym. 213, 4. Reg. Brevium, 205, 6. 2 Wils. 359. 8 East, 348. And in that case the surgeon could not recover any fees. Peake, C. N. P. 59; see 2 New. Rep. 136. But in the case of a physician, whose profession is honorary, he is not liable to an action.† Peake, C. N. P. 96. 123. 4 T. R. 317. though 4ay be punished by the college of physi

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

cians. Com. Dig. tit. Physician; Vin. Ab. tit. Physician. According to Hawkins, P. C. if any person, not duly authorized to practice, undertake to cure, and should kill his patient, he is guilty of felony, though clergyable. And such person, so employed, cannot recover in an action for the medicines supplied. See 55 Geo. III. c. 194. However, if the party em ploy a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161. Bac. Ab. Action on the Case, F. 2 Wils. 359. Reg. Brev. 105. 8 East, 348.

Though the law does not in general imply a warranty, as to the goodness and quality of any personal chattel, it is otherwise with regard to food and liquors, in which, especially in the case of a publican, the law implies a warranty. 1 Roll. Ab. 90. pl. 1, 2. 2 East, 314.

With regard to private nuisances, it is par ticularly observable that the law regards the health of the individual though it will not af ford a remedy for malicious and ill-natured acts tending to destroy the beauty of situa tion, such as stopping a prospect &c. 9 Co. 58. b.-In complaining of a nuisance in stop. ping ancient lights, &c. the cousequent injury must be stated to have been the deprivation of lights and air, which are considered as condu cive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nuisauce. As to ancient light in general, see ante.

Public Nuisance.-With respect to the in juries to health, as a consequence of a public nuisance, it seems that if the injury be attri butable to the inhabitants of a county, no ac tion is sustainable. 2 T. R. 667. 9 Co. 112. b. 117. a. But if the special injury be occa sioned by an individual, an action lies. Bar Ab. Action on the Case; 1 Salk. 15, 16.

• In New Yɔrk, ¡hysicians are entitled to sue for their fees. See note* p.

28 ante

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