likewise in defence of my goods or possession, if a man endeavors to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away. (s) Thus, too, in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation. (t) And, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defence against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a fore tooth, (u) and also some others. (v) But the loss of one of the jaw teeth, the ear, or the nose, is no mayhem at common law; as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury which (when wilful) no motive can justify, but necessary self-preservation. If the ear be cut off, treble damages are given by statute 37 Hen. VIII, c. 6, though this is not mayhem at common law. Civil and criminal prosecution. 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 [*122] 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 injured, to make him a reparation in damages. 4. Injuries affecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions or wine; (w) by the exercise of a noisome trade, which infects the air in his neighborhood; (c) or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved, (y) that mala praxis (bad practice) 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 (u) Finch, L. 204. 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, "culpa adnumerantur, veluti si medicus curationem dereliquerit, male quempiam secuerit, aut perperam ei medicamentum dederit" (they are reckoned faults, as if a medical man neglect his patient, perform an amputation unskilfully, or administer medicine unadvisedly). Trespass on the case. These are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass upon the case. This action of trespass, or transgression, on the case, is an universal remedy, given for all personal wrongs and injuries without force; so called because the plaintiff's whole case or cause of complaint is set forth at length in the original writ. (a) For though in general there are methods prescribed, and forms of actions previously settled, for redressing those wrongs, which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's person or property, as battery, non-payment of debts, detaining one's goods, or the like, yet where *any special consequential damage arises, [*123] 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. (b) For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; (c) and, therefore, wherever a new injury is done, a new method of remedy must be pursued. (d) And it is a settled distinction, (e) that where an act is done which is in itself an immediate injury to another's person or property, there the remedy is usually by an action of trespass vi et armis, but where there is no act done, but only a culpable omission; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis (by force and arms) will lie, but an action on the special case, for the damages consequent on such omission or act.1 5. Slander and libel.- Lastly: injuries affecting a man's reputa tion or good name are, first, by malicious, scandalous and slanderous words, tending to his damage and derogation. (z) Inst. 4, 3, 6, 7. (a) For example: "Rex vicecomiti salutem, Si A. fecerit te securem de clamore suo prosequendo, tunc pone per vadium et salvos plegios B. quod sit corem justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B. ad dextrum oculum ipsius A. casualiter læsum bene et competenter curandum apud S pro quadem pecuniæ summa præ manibus solu a assumpsisset, idem B. curam suam circa oculum prædictum tam negligenter et improvide apposuit, quod idem A. defectu ipsius B. visum oculi prædicti totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium," &c. (The king to the sheriff sends greeting. If A. give you security that he will prosecute his claim, then put B. by gage and safe pledges to appear before our justices at Westminster on the octave of St. Michael, to shew cause why, when the same B had at S. undertaken, for a certain sum of money paid beforehand, well and completely to cure the right eye of the said A. accidentally hurt, the same B. attended to the said eye so negligently and carelessly, that the same A., by the default of the same B., totally lost the sight of the said eye, to the damage of the said A. (as he says) of twenty pounds. And have you there the names of the pledges and this writ. Witness myself at Westminster, &c.) Registr. Brev. 105. (c) 1 Salk. 20. 6 Mod. 54. (b) See page 52. (e) 11 Mod. 180. Lord Raym. 1402. Stra. 635. 1 See the celebrated Squib case, Scott v. Shepherd, 2 Bl. Rep. 892; also Ricker v. Freeman, 50 N. H. 420; S. C., 9 Am. (60) (d) Cro. Jac. 478. Rep. 267; Percival v. Hickey, 18 Johns. 257; S. C., 9 Am. Dec. 210. 945. Actionable words. As if a man maliciously and falsely utter any slander or false tale of another; which may either endanger him in law, by impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured; (f) or which may exclude him from society, as to charge him with having any infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave. (g) Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum (slander of the nobles), are held to be still more heinous: () and though they be such as would not be actionable in the case of a common person, yet, when spoken in disgrace of such high and respect[*124] able characters, they amount to an atrocious injury; *which is redressed by an action on the case, founded on many ancient statutes; (2) as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained.2 Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly injurious than when spoken of a private man. () It is said, that formerly no actions were brought for words, unless the slander was such as (if true) would endanger the life of the object of it. (1) But too great encouragement being given by this lenity to false and malicious slanderers, it is now held that, for scandalous words of the several species before mentioned (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, may impair his trade, or may affect a peer of the realm, a magistrate, or one in public trust), an action on the case may be had, without proving any particular damage to have happened, but merely upon the probability that it might happen. Words actionable if causing damage. But with regard to words that do not thus apparently, and upon the face of them, import such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. As if I say that such a clergyman is a bastard, he cannot for this bring an action against me, unless he can show some special loss by it; in which case he may bring his action against me, for saying he was a bastard, per quod he lost the presentation to such a living. (m) In like manner, to slander another man's title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue in tail, or one who hath land by descent, a bastard), is actionable, provided any special damage accrues to the proprietor thereby; as if he loses an opportunity of selling the land. (n) But mere scurrility, or opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, (h) 1 Ventr. 60. (f) Finch, L. 185. (g) Ibid. 186. 1 See Broker v. Coffin, 5 Johns. 188; S. C., 4 Am. Dec. 337; Pollard v. Lyon, 95 U. S. 225. (k) Lord Raym. 1369. (n) Cro Jac. 213. Cro. Eliz. 197. 2 This action is now obsolete. a *125, 126 as to call a man heretic or adulterer, are cognizable only in the ecclesiastical court; (o) unless any temporal damage [*125] ensues, which may be a foundation for å per quod. Words of heat and passion, as to call a man a rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species before mentioned, are not actionable: neither are words spoken in a friendly manner, as by way of advice, admonition, or concern, without any tincture or circumstance of ill-will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander. (p)1 Privilege. Neither (as was formerly hinted) (9) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander. (r) Truth in justification. Also if the defendant be able to justify, and prove the words to be true, no action will lie, (s) even though special damage hath ensued: for then it is no slander or false tale. As if I can prove the tradesman a bankrupt, the physician a quack, the lawyer a knave, and the divine a heretic, this will destroy their respective actions: for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria (damage without injury); and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law; (t) "Eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit" (it is not just and right that he who exposes the faults of a guilty person should be condemned on that account; for it is proper and expedient that the offences of the guilty should be known). Libel.-A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous (u) light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and another by action. Truth in criminal prosecution.-The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libeled to break it, which offence is the same (in point of law) whether *the matter contained be true or false; and therefore the defendant, on an indict- [*126] ment for publishing a libel, is not allowed to allege the truth of it by way of justification. (w)2 1 The defendant in an action for slander may give in evidence under the general issue, in mitigation of damages, any such facts as, without showing the truth of the charge, tend to show that defendant believed it, and thus to rebut the presumption of malice. Wagner v. Holbrunner, 7 Gill, 296; Scott v. McKinnish, 15 Ala. 662; Bisbey v. Shaw, 12 N. Y. 67; Hart v. Reed, 1 B. Monr. 166; Farr v. Rasco, 9 Mich. 353; Chapman v. Calder, 14 Penn. St. 365; Kennedy v. Dear, 6 Port. 90; Blickenstaff v. Perrin, 27 Ind. 527. 2 But now by statute 6 and 7 Vic., c. 96, the defendant in any indictment or information for libel may plead the truth of the matters charged, and also that it was for the public benefit that the same should be published; and this plea, if sustained, constitutes a good defense, but if not sustained, the court may, in pronouncing sentence, consider whether the guilt of the defend Truth in civil suit.- But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts and show that the plaintiff has received no injury at all. (x) What was said with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon: but as to signs or pictures, it seems necessary also to show, by proper innuendos and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear, that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences. Malicious prosecution.- A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy, (y) which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution. (2) In order to carry on the former (which gives a recompense for the danger to which the party has been exposed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the least, probable cause to found such prosecution upon. (a) For it would be a (x) Hob. 253. 11 Mod. 99. (y) Finch, L. 305. (a) Carth. 421. Lord Raym. 253. ant was aggravated or mitigated by the plea. In the United States, by constitutional or statutory provisions, the truth is made a defense to a criminal prosecution, if published with good motives and for justifiable ends. In general, to authorize an action of tort for malicious prosecution, there must be a concurrence of the following circumstances: 1. A suit or prosecution must have been instituted without any probable cause therefor; 2. The motive in instituting it must have been malicious; 3. The prosecution must have terminated in the acquittal or discharge of the accused. To probable cause it is necessary "that there be such a state of facts as would lead a man of ordinary caution and prudence to believe and entertain an honest and strong suspicion that the person is guilty.' Bacon v. Towne, 4 Cush. 217, 238. See Broad v. Ham, 5 Bing. N. C. 722; Mowry v. Whipple, 8 R. I. 360; Fagnan v. Knox, 66 N. Y. 525; Driggs v. Burton, 44 Vt. 124; Bank of British N. A. v. Strong, 1 App. Cas. Priv. Coun. 307; 16 Moak, 24. In suits (z) F. N. B. 116. for malicious prosecution the burden of showing want of probable cause is on the plaintiff and proof of malice will not establish it. Heyne v. Blair. 62 N. Y. 19; Skidmore v. Bricker, 77 Ill. 164; Cloon v. Gerry, 13 Gray, 201. But malice may be inferred from the want of probable cause, though the inference is not a necessary one. Dietz v. Langfitt, 63 Penn. St. 234; Flickinger v. Wagner, 46 Md. 580. In a few cases an action for the malicious institution of proceedings not criminal in their nature will lie. One of these is the case of a malicious attempt to procure an adjudication in bankruptcy without cause, or an adjudication of insanity in order to put the party under guardianship. Lockenour v. Sides, 57 Ind. 360. The case of a malicious arrest in an unfounded civil suit. or of a malicious attachment of property, in such a suit would seem equally to support this action. Collins v. Hayte, 50 Ill. 337; Preston v. Cooper, 1 Dill. 589; Woods v. Finnell, 13 Bush, 628; Williams v. Hunter, 3 Hawks, 545; S. C., 14 Am. Dec. 597. |