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 (?). 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 ac

, count of these causes of justification, battery is defined to be the unlawful beating of another; for which the romedy 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

a

(r) F. 47. 10. 5.
(s) 1 Finch. L. 203.
(1) 1 Sid. 30L

(w) Finch. L. 204.
(v) I Hawk. P. C. III.

(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 rins 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 Saund. 29. b. n. 1. Id. sault, Co. Litt. 253; and the plaintiff may re13 & 14, n. 3. Taking a hat off the head of cover for the assault only, though he declares another is no battery. 1 Saund. 14. It must 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 sui. 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 proof has been a want of due care. Stra. 596. Hob. that it is the same wound, concerning which 134. Plowd. 19. But if a person uninten- evidence was given to the jury, 1 Wils, 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 (r); 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,"culpæ adnumerantur, veluti si medicus curationem dereliquerit, male

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

(y) Lord Raym. 214.
(2) 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, pot 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 Bos. & 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 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 bave warranty, as to the goodness and quality of no more costs than damages, unless the judge any personal chattel, it is otherwise with re. at the trial shall certify that an assault and gard to food and liquors, in which, especially battery was sufficiently proved. See con- in the case of a publican, the law implies 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 afcourt, 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 situa. he sues in the common pleas, he recovers full tion, such as stopping a prospect, &c. 9 Co. costs. 2 R. S. 613, 9 6. 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 slated to have been the deprivation of professions, lo discharge their duty in a skil. lights and air, which are considered as conduful 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 an. lect 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. Brevium, 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 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 injury be occasion 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. he may be punished by the college of physi.

# In New-York, physicians are entitled to sue for their fees. See note * p. 28 ante.

a

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 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 (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 totaliter amisit, ad
fecerit the securum de clamore suo proseguendo, tunc damnum ipsius A viginti librarum, ut dicit. Et
pone par vadium et salvos plegios B quod sit coram habeas ibi nomina plegiorum et hoc breve.
justiiiariis nostris apud Westmonasterium in octa- meipso apud Westmonasterium, fc." (Registr.
bis sancti Michaelis, ostensurus quare cum idem B Brev. 105.)
ad dextrum oculum ipsius A casualiter laesum bene (6) See page 52.
et competenter curandum apud S. pro quadam pecu-
niae summa prae manibus soluta assumpsisset, idem
B curam suam circa oculum praedictum tam negli- (e) 11 Mod. 130. Lord Raym. 1402. Sra. 635.
genter et improvidè apposuit, quod idem A defectu

Teste

(c) 1 Salk. 20.6 Mod. 54.
(d) Cro. Jac. 478.

(8) The Revised Statutes of New York of some punishable offence; 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. 563, Ø 16).

construction cannot be given to words which (9) As to actions for verbal slander and li- they do not necessarily import, either of thembels in general, see Bac. Ab. Libel, and tit. selves, independently of any other circumSlander; 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,"

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 impeach

66

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 extemporal 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 formed for But if 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 circumstances 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 or Trust.-When profit or emolument guilty of felony. 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 moR. 218. 2 New. R. 335.

rals or inability to discharge the duty of the of. 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 it only imputes an Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. But inchoate immorality, and not the actual conin an office merely honorary, to which no promission of a crime for which the party accused fit, &c. is attached, a verbal accusation of incould be punished. 4 Co. Rep. 16. b. 18. b. capacity, &c. is not actionable. 5 Co. Rep. 4 Esp. R. 219. Cro. Jac. 158. 1 Rol. Ab. 41. 125. 4 Rep. 16. a. Salk. 695. 8. 1 Rol. Ab. 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 a crime, as subornation of perjury, is action. imputation of an intent or inclination to comable, I Rol. Ab. 41; or of soliciting a servant mit a criminal breach of duty, is actionable, Lo 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. 9. Bull. lity, piety, &c. (which, though 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 corotherwise, 3 Wils. 187. Com. Dig. tit. Actior. 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. Trace, Profession, or Occupation.-Words cal courts for redress, which courts were es. which impute the want of integrity or capaci. tablished for reformation of morals, and have ty, 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 244. Thus an action will lie for accusing a party in the temporal courts, the judges, pro- clergyman of incontinence, &c. for which he fessing 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 he 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. 297. 3 B. & A. 702 ; or a VOL. II.

15

A ver

ing him of some heinous crime, as to say that a man hath poisoned another, or is perjured (f); or which may exclude him from society, as to

(f) Finch. L. 185. person 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. Raym. 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 by 6s. a bushel than I 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 ; and though the falsity of the imputation bitant sum for his goods, &c. unless fraud be is in general to be implied vill the contrary be imputed, &c. Bac. Ab. tit. Slander, B. 4. If shewn, 2 East, 436. 1 Saund. 242. yet the defamatory words be spoken of two persons defendant may, in any civil action, plead speaffecting them in their joint trade, they may cially, though he cannot give in evidence unjoin in an action for the injury. 3 B. & P. der the general issue, that the slanderous re150. In all these cases the words are action presentation was true. Willes, 20. I Saund. able, without proof of special damage, because 130. The instance of a master making an un. they have a certain tendency to injure the favourable 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. 1 T.R. 111. 3 Bos. and tion, and proved at the irial, 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 libelled, is a sufficient publi. that view, unless special damage be averred cation to subject the libeller to an indiciment, and proved. 2 Saund. 307. a. 1 Saund. 242. as tending to a breach of the peace. 2 Bla. n. 3. 1 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 de(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, I 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. l. Bac. 1 Rol. Ab. 74. Cro. Eliz. 857.861. 1 Saund. Ab. Slander, C.; or where in consequence of 242. n. 3. 2 Saund. 307. Bac. Ab. Slander, the imputation of incontinence, cast upon a D. It is the province of a jury to decide dissenting preacher at a licensed chapel, the whether or not a publication be sufficiently congregation refuse to allow him to preach proved. ? 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 him, was conveyed, however obscure, if the person he may maintain an action for the consequen- who beard 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 inas to say to a father of an heir apparent, that tendment in initiori sensu being exploded. 5 he is a bastard, in consequence whereof the East, 463. Bac. Ab. Libel, A. 3. If A. send father bas 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

1 Rol. Ab. 38. Cro. Jac. 213. sed vide publishing it, and he print and publish it, A. 3 Wils. 188. Yet having incurred the dan- is liable as the publisher, and liable to an acger of being turned out of doors from the tion, 5 Dow. 201 ; and proof that the defendparents' displeasure, from calumnious impu. ant knew that letters addressed to the plaintiff tation, is not sufficient. I 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 pro of the delivery of a copy of a tainable merely on account of special damage newspaper, containing a libel, to the stamp occasioned by words not actionable them- office, is sufficient proof of publication. 4 selves, it suffices to bring the action within B. & C. 35. Every copy of a libel sold by six years, and the plaintiñ 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. 296, 9 20.)

tate.