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 (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, "culpæ adnumerantur, veluti si medicus curationem dereliquerit,male

(w) 1 Roll. Abr. 90.

(z) 9 Rep. 32. Hutt. 135.

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.

998.

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 neg. lect 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 he may 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 employ 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 situation, such as stopping a prospect, &c. 9 Co. 58. b. In complaining of a nuisance in stopping ancient lights, &c. the cousequent injury must be stated to have been the deprivation of lights and air, which are considered as conducive 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 injuries 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 action is sustainable. 2 T. R. 667. 9 Co. 112. b. 117. a. But if the special injury be occasioned by an individual, an action lies. Bac. Ab. Action on the Case; 1 Salk. 15, 16.

+ In New-York, physicians 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 (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 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: "Rer vicecomiti salutem, Si A fecerit the securum de clamore suo prosequendo, tunc pone par vadium et salvos plegios B quod sit coram justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B ad dextrum oculum ipsius A casualiter laesum bene et competenter curandum apud S. pro quadam pecuniae summa prae manibus soluta assumpsisset, idem B curam suam circa oculum praedictum tam negli genter et improvidè apposuit, quod idem A defectu

(8) The Revised Statutes of New-York seem to allow the action of trespass on the case to be brought in all cases where trespass may be brought, except for trespass on lands. (2 R. S. 553, 16).

(9) As to actions for verbal slander and libels in general, see Bac. Ab. Libel, and tit. Slander; Com. Dig. Action upon the Case for Defamation, and tit. Libel; Vin. Ab. tit. Libel; Selw. N. P. Libel, and tit. Slander; Holt, George, Starkie, and Mence's Treatises on Slander, and 2 Starkie on Evidence, 844 to 883; and as to indictment for libels, see post, 4 book, 150.

With respect to an imputation of the guilt of some offence punishable in the temporal courts, as an infamous crime, or punishable with imprisonment; the accusation must be precise, or have such an allusion to some prior transaction, that the hearers of the slander must necessarily have understood that the slanderer meant to impute the plaintiff's guilt

ipsius B visum oculi praedicti totaliter amisit, ad damnum ipsius A viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium, &c." (Registr. Brev. 105.)

(b) See page 52.

(c) 1 Salk. 20. 6 Mod. 54.
(d) Cro. Jac. 478.

(e) 11 Mod. 130. Lord Raym. 1402. Stra. 635.

of some punishable offence; for though the rule of construing words in mitiori sensu is now exploded, (5 East, 463. Fitzg. 253. Bul. N. P. 4. 10 Mod. 198), yet an innuendo or construction cannot be given to words which they do not necessarily import, either of themselves, independently of any other circumstances, or with necessary reference, or some other circumstances occurring at the time of the accusation. 6 T. R. 691. 4 Co.,17. b. 11 Mod. 99. 4 Esp. N. P. 218. 8 East, 427. On this account it is not actionable to call a person "villain," "cheat," "rascal," "swindler," or "rogue," or to say he is "forsworn," without a colloquium of some proceeding in a court of justice, in which the party had been examined on oath. 6 T. R. 691. 2 H. Bla. 531. 2 Wils. 404. 87. 8 East, 428. 1 Bos. & Pul. 331. 2 Saund. 307. 4 Co. 15. b. 2 Ventr. 28. 2 Buls. 150. Holt's Law of Libel, 176. As to this point, see Com. Dig. tit. Libel. Fitzg. 121. 253. The law does not

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

consider these latter words as necessarily imputing the guilt of a crime punishable by the temporal courts. So the term "forsworn" does not, in legal consideration, necessarily import perjury or false swearing in a regular judicial proceeding, and consequently does not necessarily impute to the party the guilt of having committed a punishable crime. 6 T. R. 694. 4 Co. 15. 2 Bulst. 150. Holt's Law of Libel, 176.

But if either of the above expressions, not actionable in themselves, be accompanied by any other circumstances tending to throw the imputation of a punishable crime on the party accused, and be so understood by the hearers, they are actionable. 6 T. R. 694. So, on the other hand, words prima facie importing a charge or guilt, as to call a person" thief," may be qualified by the expressions and other circumstances, evincing that the accuser did not mean to insinuate that the party had been guilty of such crime, and in that case no action will be sustainable; as, if the words be

"you are a thief," for " you stole my tree," the stealing of which is not felony; or where the witnesses called to prove the slander, admit that they do not believe the defendant meant to impute that the plaintiff had been guilty of felony. Cro. Jac. 114. B. N. P. 5. Peake, N. P. 4. 4 Co. 19. Stra. 142. 2 Esp. R. 218. 2 New. R. 335.

The accusation of a mere intent, propensity, or inclination to commit a crime, &c. is not actionable, because it only imputes an inchoate immorality, and not the actual commission of a crime for which the party accused could be punished. 4 Co. Rep. 16. b. 18. b. 4 Esp. R. 219. Cro. Jac. 158. 1 Rol. Ab. 41. Freem. 46. 7 Taunt. 431. 4 Price, 46. But an accusation of seducing another to commit a crime, as subornation of perjury, is actionable, 1 Rol. Ab. 41; or of soliciting a servant to steal, 3 Wils. 186. 2 East, 5; but see Salk. 696.

A verbal imputation of the breach of any moral virtue, duty, or obligation, such as chastity, piety, &c. (which, though it may depreciate a person in the opinion of society, and subject him to censure in the ecclesiastical court, does not expose him to punishment in the temporal courts), is not actionable, 4 Taunt. 355; though if in writing, it will be otherwise, 3 Wils. 187. Com. Dig. tit. Action on the Case for Defamation, F. 20; and the party aggrieved must resort to the ecclesiastical courts for redress, which courts were established for reformation of morals, and have an exclusive jurisdiction over the punishments of fornication, &c. Therefore in accusations of such offences, as could not endanger the party in the temporal courts, the judges, professing not to be acquainted with the extent of the jurisdiction of the ecclesiastical courts, considered it most expedient to refer the party to those courts for redress. 2 Salk. 692. 2 Stra. 946. 1 Lev. 49. 7 Mod. 78. But when the accusation is partly of an offence punishable in the ecclesiastical courts, and partly in VOL. II.

the temporal, or where special damage has been sustained, the latter courts have the exclusive jurisdiction, and will afford redress for the entire slander. 2 T. R. 473. 4 Co. Rep. 20. a. b. Sid. 214. 1 Lev. 134. Rol. Ab. 34. 4 T. R. 16. b. Cro. Jac. 163. 12 Mod. 248. Ld. Raym. 809. Vent. 220. 3 Lev. 193. Stra. 545. 55.

2. With respect to the Imputation of having a contagious Disorder.-Man being formed for society, and standing in almost constant need of the advice, comfort, and assistance of his fellow-creatures, it is highly reasonable that any words which import the charge of having a contagious distemper, should be in themselves actionable, because all prudent persons will avoid the company of a person having such a distemper. Bac. Ab. Slander, B. Com. Dig. Action on the Case for Defamation, D. 28. 2 Wils. 403, 4. The mere accusation of having had a disease, is not actionable, because it alludes to a past disease. 2 T. R. 473, 4. 2 Stra. 1189. As to particular disreputable disorders, see Cro. Eliz. 289. Hob. 5. 219. Rol. M. 43. 2 T. R. 473. 1 Saund. 248. n. 3. Bac. Ab. tit. Slander.

3. As to Slander affecting a Person in his Office or Trust.-When profit or emolument is attached to them, any words which directly impute an unfitness, either in respect of morals or inability to discharge the duty of the of fice, are actionable. 1 Salk. 695.698. Rol. Ab. 65. 2 Esp. 500. 5 Rep. 125. 1 Stra. 617. 2 Ld. Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. But in an office merely honorary, to which no profit, &c. is attached, a verbal accusation of incapacity, &c. is not actionable. 5 Co. Rep. 125. 4 Rep. 16. a. Salk. 695. 8. 1 Rol. Ab. 65. 2 Esp. 500. 3 Wils. 177. 1 Mal. Ent. 244. In an office of trust and emolument, an imputation of an intent or inclination to commit a criminal breach of duty, is actionable, which is an exception to the before-mentioned rule. Salk. 695. 1 Stra. 617. 2 Ld. Raym. 1369. 1480. 4 Rep. 16. a. 3 Wils. 177. 2 Saund. 307; see Cro. Jac. 339. b. 1. 9. Bull. N. P. 5. Holt's Law of Libel, 197. A verbal imputation, that the plaintiff gave to the commissioners of the admiralty 2001. for a warrant to be purser of a man-of-war, would be actionable, as imputing a corruption of a public trust, and a crime in tempting to corruption. 5 Burr. 2699.

4. As to Slander affecting a Person in his Trade, Profession, or Occupation.-Words which impute the want of integrity or capacity, whether mental or pecuniary, in the conduct of a profession, trade, &c. in which the party is engaged, are actionable. 1 Mal. Ent. 244. Thus an action will lie for accusing a clergyman of incontinence, &c. for which he may be deprived, 4 Co. 17; or a barrister, attorney, or artist, of inability, inattention, or want of integrity, 3 Wils. 187. 2 Bla. R. 750; as to say of an attorney, "what, does he pretend to be a lawyer? he is no more a lawyer than the devil," 3 Wils. 59. 7 Moore, 200. 3 Bro. & B. 297. 3 B. & A. 702; or a 15

94

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.)
of fraudulent or dishonourable conduct, or of
being in insolvent circumstances. Ld. Raym.
1480. And to say of one who carries on the
business of a corn vender, "you are a rogue
and a swindling rascal, you delivered me 100
bushels of oats worse by 6s. a bushel than I
bargained for," is actionable, and entitles him
to a verdict without proof of special damage.
3 Bing 104. But an action is not sustainable
for saying a tradesman has charged an exor-
bitant sum for his goods, &c. unless fraud be
imputed, &c. Bac. Ab. tit. Slander, B. 4. If
defamatory words be spoken of two persons
affecting them in their joint trade, they may
join in an action for the injury. 3 B. & P.
150. In all these cases the words are action-
able, without proof of special damage, because
they have a certain tendency to injure the
person accused. Bac. Ab. Slander, B. 4. In
these and the prior cases the words must be
spoken of the party in relation to his office,
trade, &c., and be so alleged in the declara-
tion, and proved at the trial, or the words
themselves must appear to have been spoken
of the office, &c. or necessarily to affect in
that view, unless special damage be averred
1 Saund. 242.
and proved. 2 Saund. 307. a.
n. 3. 1 Lev. 280. Ld. Raym. 1480. Stra. 618.
696. 1169. Cro. Jac. 554. Salk. 694.

Words actionable in respect of Special Da-
mage. The special damage sufficient to sup-
port an action, must be a certain actual loss,
(as of a particular marriage), or the acquaint-
ance or friendship of some specified person, 1
Rol. Ab. 36. 1 Lev. 261. 2 Bos. & Pul.
284. 1 Saund. 243. 3 B. & P. 372. 4. 6. 1
Bac.
Taunt. 39. 2 Edw. II. Ed. 11. b. 1.
Ab. Slander, C.; or where in consequence of
the imputation of incontinence, cast upon a
dissenting preacher at a licensed chapel, the
congregation refuse to allow him to preach
there any more, and discontinue the emolu-
ment they would otherwise have given him,
he may maintain an action for the consequen-
tial damage. 8 T. R. 130. Probable damage
has been in some instances declared sufficient,
as to say to a father of an heir apparent, that
he is a bastard, in consequence whereof the
father has declared a design of disinheriting
him, and does actually convey away the es-
tate. 1 Rol. Ab. 38. Cro. Jac. 213. sed vide
3 Wils. 188. Yet having incurred the dan-
ger of being turned out of doors from the
parents' displeasure, from calumnious impu-
tation, is not sufficient. 1 Lev. 261. 1 Taunt.
39. The special damage must be incident
and natural to the words spoken, and not the
consequence of the unlawful act of a third
8 East, 1. Where the action is sus-
person.
tainable merely on account of special damage
occasioned by words not actionable them-
selves, it suffices to bring the action within
six years, and the plaintiff is entitled to full

costs, however small the damages; but if the
words be actionable in themselves, though
special damages be proved, the plaintiff, un-
less he recover damages, will be entitled to
no more costs than damages.† Willes, 438.
2 Ld. Raym. 1588. 2 Stra. 936. Tidd, 8 ed.
997.

II. FALSITY OF THE IMPUTATION.-To
render any imputation against the character
actionable, it must be false, 5 Co. 125, 6 Hob.
253; and though the falsity of the imputation
1 Saund. 242. yet the
is in general to be implied till the contrary be
shewn, 2 East, 436.
defendant may, in any civil action, plead spe-
cially, though he cannot give in evidence un-
der the general issue, that the slanderous re-
presentation was true. Willes, 20. I Saund.
130. The instance of a master making an un-
favourable representation of his servant, upon
an application for his character, seems to be
an exception, in that case there being a pre-
sumption from the occasion of speaking, that
the words were true. 1 T. R. 111. 3 Bos. and
Pul. 587.

III. THE PUBLICATION.-The sending a libel to the party libelled, is a sufficient publication to subject the libeller to an indictment, as tending to a breach of the peace. 2 Bla. 1 Saund. 132. n. 2. Rep. 1038. 1 T. R. 110. 4 Esp. N. P. 117. 2 Esp. 623. 2 East's Rep. 2 Kel. 58. 2 Stark. 361. 2 Barn. K. B. 102. 245. But it is essential to the support of an. action, that there be a publication by the defendant of the libel or words to a third person, and also that such person understood the words in the sense the plaintiff wishes to establish, or that they necessarily have that meaning. 1 Rol. Ab. 74. Cro. Eliz. 857. 861. 1 Saund. Bac. Ab. Slander, 242. n. 3. 2 Saund. 307.

D.

a

It is the province of a jury to decide whether or not a publication be sufficiently proved. 2 Bla. Rep. 1037. 1 Saund. 132. n. person 2. It is immaterial in what way the slander was conveyed, however obscure, if the who heard it understood it in an actionable sense, and the court will put the witnesses' construction on the words, the old rule of intendment in mitiori sensu being exploded. 5 Bac. Ab. Libel, A. 3. If A. send East, 463. manuscript to the printer of a periodical work, and does not restrain the printing and publishing it, and he print and publish it, A. is liable as the publisher, and liable to an action, 5 Dow. 201; and proof that the defendant knew that letters addressed to the plaintiff were usually opened by his clerk, is evidence to go to a jury, of his intention that the libel should be read by a third person, so as to amount to an actionable publication, 2 Stark. 63; and proof of the delivery of a copy of a newspaper, containing a libel, to the stamp office, is sufficient proof of publication. 4 Every copy of a libel sold by B. & C. 35. 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, § 20.)

charge him with having an infectious disease; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician