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writ of consultation may also be, and is frequently, granted by the court without any action brought; when, after a prohibition issued, upon more mature consideration the court are of opinion that the matter suggested is not a good and sufficient ground to stop the proceedings below. Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right, founded on the usage of the kingdom or act of parliament, do properly belong to their jurisdiction.



THE former chapters of this part of our Commentaries having been employed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury: and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts.

First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king, as the fountain of justice, is officially bound to redress in the ordinary forms of law: reserving such *injuries or encroachments as may occur between the crown and the subject, to be distinctly considered here- [*116] after, as the remedy in such cases is generally of a peculiar and eccentrical


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Now, since all wrong may be considered as merely a privation of ight, the plain, natural remedy for every species of wrong is the being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury; (a) though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror (b) to be" the lawful demand of one's right: or, as Bracton and Fleta expresses it, in the words of Justinian, (c) jus prosequendi in judicio quod alicui debetur.

The Romans introduced, pretty early, set forms for actions and suits in their law, after the example of the Greeks; and made it a rule that each injury

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should be redressed by its proper remedy only. "Actiones," say the pandects, "composite sunt, quibus inter se homines disceptarent: quas actiones ne populus prout vellet institueret, certas solennesque esse voluerunt." (d) The forms. of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets; till one Cneins Flavius, the secretary of Appius Claudius, stole a copy and published them to the people. (e) The *concealment was ridiculous: but the establishment of some standard [*117] 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 discernible. Or, as Cicero expresses it, (f) "sunt jura, sunt formula, de omnibus rebus constitute, ne quis aut in genere injuriæ, aut ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publice a prætore formulie, 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 legislatures 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; actions personal, real and mixed. (1)

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 personam, quæ 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, assaults, defamatory words, and

the like.

Real actions (or, as they are called in the Mirror, (i) feudal 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 [*118] other *hereditaments, in fee-simple, fee-tail, or 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 expeditious method of trying titles being since introduced 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 sus tained. As, for instance, an action of waste, which is brought by him who hath the inheritance, in remainder or 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, in pursuance of the statute of Gloucester, () which is a personal recompense; and so 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 natures

(e) Cic. pro Muræna. § 11, de orat. l. 1, c. 41.

(d) Ef. 1. 2. 2, § 6. (f) Pro Qu. Roscio, § 8. (g) Sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni appro bata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. L. 5, de excep tionibus, c. 17. § 2.

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(1) All real and mixed actions are now abolished by statute 3 and 4 Wm. IV, cc. 27, 36, except actions for dower, quare impedit and ejectment, and a new proceeding in ejectment was substituted for that form of action by the common law procedure act of 1852.

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. (7) 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 to the king, as well as a private satisfaction to the party injured. (m) And this distinction of private wrongs, into injuries with and without [*119] 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 system 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 affect 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 corresponding nature.

I. As to injuries which affect the personal security of individuals, 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)

(1) Finch, L. 184.

(m) Finch, L. 198. Jenk. Cent. 185.

(n) See book I, ch. 1.

(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 not lie for battery of wife or servant, whereby death ensued. Styles, 347; 1 Lev. 247; Yelv. 89, 90; 1 Ld. Raym. 339. The remedy is by indictment for murder, or, formerly, by appeal, which the wife might have for killing her husband, provided she married not again before or pending her 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, book 4, 312; 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, 347; and before conviction of the offender there is no remedy against him at law or in equity: id; 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 a party by stabbing, him, the latter may maintain trespass to recover damages for the civil injury, if it be not shown that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminality of the offender.]

That no civil action will lie at the common law for causing the death of a human being, see Whitford v. Panama R. R., 23 N. Y. 465; Carey v. Berkshire R. R. Co., 1 Cush. 475; Ohio and M. R. R. Co. v. Tindall, 13 Ind. 366; Eden v. L. and F. R. R. Co., 14 B. Monr. 204. But where death does not at once ensue, a person entitled to the services of the person injured may recover for the loss accruing between the injury and the death, and this recovery will not be barred by the death. Long v. Morrison, 14 Ind. 595; Hyatt v. Adams, 16 Mich. 180.

And now, by statute 9 and 10 Vic. c. 93, whenever the death of a person shali be caused by such wrongful act, neglect or default, as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to 73

Vol. II-10

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[ *120] *2, 3. The two next species of injuries, affecting the limbs or 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. (0) 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 (q) 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 person wil fully, 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 it was the plaintiff's own original assault that occasioned it. So like[ *121] wise 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

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such action may be sued by the executor or administrator, for the benefit of the wife, husband, parent, or child of the person deceased. The damages awarded are apportioned among the persons for whose benefit the action is brought, as the jury may direct. Similiar statutes have been passed in the United States.

The English doctrine above stated in this note- that the civil remedy for an injury by a felony is suspended until the criminal remedy has been pursued -is generally held inapplicable in the United States, where the duty of prosecuting for public offences is devolved upon a public officer. See cases collected, 1 Bish. Cr. L. § 329, et seq.]

(3) [An assault is an attempt or offer, accompained by a degree 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, supposing 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 explain the aggressor's intent, as to prevent an act, prima facie an assault, from amounting to such an injury; as when a man, during assize 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 constitutes an assault. 1 Mod. 3, case 13.]

(4) [A battery is an 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 and 14, n. 3. Taking a hat off the head of another is no battery. 1 Saund. 14. It must be either wilfully com mitted, 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. 134. Plowd. 19. But if a person unintentionally push against another 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 assault: Co. Litt. 253: and the plaintiff may recover for the assault only, though he declares for an assault and battery. 4 Mod. 405.]

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. 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 injured, to make him a reparation in damages. (5)

[*122] 4. Injuries affecting a man's health (6) 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; (2) 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, (z) neglect or want of skill in physicians or surgeons, "culpa adnumerantur, veluti si medicus curationem dereliquerit, male quempiam secuerit, aut perperam ei medicamentum dederit." These are wrongs or injuries unaccompanied by force, for which there is a rem

(8) 1 Finch, L. 203. (w) 1 Roll. Abr. 90.

(t) 1 Sid. 301.
(u) Finch, L. 204.
(2) 9 Rep. 52. Hutt. 135.

(v) 1 Hawk. P. C. 111. (y) Lord Raym. 214. (z) Inst. 4, 3, 6, 7.

(5) [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. and P. 191.]

(6) [The law implies a contract on the part of medical men, as well as those of other professions, to discharge their duty in a skillful 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, 214; Reg. Brevium, 205, 206; 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 he may be punished by the college of physicians. Com. Dig. tit. Physician; Vin. Ab. tit. Physician. If the party employ a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161; Buc. Ab. Action on the Case, F; 2 Wils. 359; 8 East, 348.]

In the United States the physician is entitled to recover compensation for his services, and is also liable to an action on the case for any injury to his patient resulting from his negligence or want of skill. Hill. on Torts, 238; Hanke v. Hooper, 7 C. and P. 81; Landon v. Humphrey, 9 Conn. 209; Ritchey v. West, 23 Ill. 385; Craig v. Chambers, 17 Ohio St. 253. Payment of the physician's fees is not requisite to make him liable for want of ordinary care. McNevins v. Lowe, 40 Ill. 385.

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