own original affault that occafioned it. So likewise in defence of my goods or poffeffion, if a man endeavours to deprive me of them, I may justify laying hands upon him to prevent him; and in cafe he perfifts with violence, I may proceed to beat him away. 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 fued for this or the like battery, he may fet forth the whole case, and plead that he laid hands upon him gently, molliter manus impofuit, for this purpose. On account of these causes of juftification, battery is defined to be the unlawful beating of another; for which the remedy is, as for affault, by action of trepass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which confifts in giving another fome dangerous hurt, and is only an aggravated fpecies of battery. 5. By mayhem ; which is an injury ftill more atrocious, and confists in violently depriving another of the use of a member proper for his defence in fight. This is a battery, attended with this aggravating circumftance, that thereby the party injured is for ever difabled from making fo good a defence against fu ture external injuries, as he otherwise might have done. Among these defenfive members are reckoned not only arms and legs, but a finger, an eye, and a foretooth, and also fome others". But the lofs of one of the jaw-teeth, the ear, or the nofe, is no mayhem at common law; as they can be of no use in fighting. The fame remedial action of trespass vi et armis lies alfo to recover damages for this injury, an injury, which (when wilful) no motive can justify, but necef fary felf-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 muft obferve that for thefe four last injuries, affault, battery, wounding, and mayhem, an indictment may be brought as well as an action; and frequently both are accordingly profecuted; the one at the fuit of the crown for the crime against the public; the

f 1 Finch, L. 203.

1 Sid. 301.

other at the fuit 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 fuftains any apparent damage in his vigour or conftitution. As by felling him bad provifions or wine"; by the exercife of a noifomet trade, which infects the air in his neighbourhood *; or by the neglect or unskilful management of his physician, furgeon, or apothecary. For it hath been folemnly refolved, that mala praxis is a great mifdemefnor and offence at common law, whether it be for curiofity and experiment, or by neglect; because it breaks the truft which the party had placed in his physician, and tends to the patient's destruction. Thus alfo, in the civil law", neglect or want of skill in physicians and furgeons "culpae adnumerantur; veluti fi "medicus curationem dereliquerit, male quempiam fecuerit, aut

perperam ei medicamentum dederit." Thefe are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trespass, upon the cafe. This action, of trespass, or tranfgreffion, on the case, is an universal remedy, given for all perfonal wrongs and injuries without force; fo called because the plaintiff's whole case or caufe of complaint is fet forth at length in the original writ . For though in general there are methods prefcribed and forms of actions previously fettled, for redreffing those wrongs which most usually occur, and in which the very act itself is immediately prejudicial or injurious to the plaintiff's perfon or property, as battery, non-payment of debts, detaining one's goods, or the like; yet where

any fpecial confequential damage arifes which could not be forefeen 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 cafe, by a writ formed according to the peculiar circumstances of his own particular grievance ". For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a' new method of remedy must be pursued ". And it is a fettled distinction, that where an act is done which is in itself an immediate injury to another's perfon or property, there the remedy is ufually by an action of trespass vi et armis: but where there is no act done, but only a culpable omiffion; or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trefpafs vi et armis will lie, but an action on the special cafe, for the damages confequent on fuch omiffion or act.

5. LASTLY; injuries affecting a man's reputation or good name are, firft, by malicious, fcandalous, and flanderous words, tending to his damage and derogation. As if a man, maliciously and falfely, utter any flander or falfe tale of another; which may either endanger him in law, by impeaching him of fome heinous crime, as to say that a man hath poisoned another, or is perjured; or which may exclude him from fociety, as to charge him with having an infectious difease; or which may impair or hurt his trade or livelyhood, as to call a tradefman a bankrupt, a phyfician a quack, or a lawyer a knaves. Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called fcandalum magnatum, are held to be ftill more heinous ; and, though they be fuch as would not be actionable in the cafe of a common perfon, yet when spoken in disgrace of fuch high and refpectable characters, they amount to an atrocious injury:

b See pag. 51.

c1 Salk. 20. 6 Mod 54.

d Cro. Jac. 478.

Stra. 635.

f Finch. L. 185.

g Ibid. 186.

11 Mod. 180. Lord Raym. 1402.

h

I Ventr. 60.

BOOK III. which is redreffed by an action on the cafe founded on many antient ftatutes; as well on behalf of the crown, to inflict the punishment of imprisonment on the flanderer, as on behalf of the party, to recover damages for the injury sustained. Words alfo tending to fcandalize a magiftrate, or person in a public truft, are reputed more highly injurious than when spoken of a private man k. It is faid, that formerly no actions were brought for words, unless the flander was such, as (if true) would endanger the life of the object of it'. But, too great encouragement being given by this lenity to false and malicious flanderers, it is now held that for fcandalous words of the several species before-mentioned, that may endanger a man in law, may exclude him from fociety, 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. But with regard to words that do not thus apparently, and upon the face of them, import fuch defamation as will of course be injurious, it is neceffary that the plaintiff fhould aver fome 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 any action against me, unless he can fhew some special loss by it; in which case he may bring his action against me, for faying he was a bastard, per quod he loft the presentation to fuch a living ". In like manner to flander another man's title, by spreading such injurious reports, as, if true, would deprive him of his estate (as to call the iffue 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 lofes an opportunity of felling the land". But mere fcurrility, or opprobrious words, which neither in themfelves import, nor are in fact attended. with, any injurious effects, will not support an action. So. fcandals, which concern matters merely fpiritual, as to call a

i Weftm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. II. c. 11. k Lord Raym, 1369.

12 Vent. 28.

m 4 Rep. 17. 1 Lev. 248.

n Cro. Jac. 213. Cro. Eliz. 197.

man

man heretic or adulterer, are cognizable only in the ecclefiaftical court; unless any temporal damage enfues, which may be a foundation for a per quod. Words of heat and paffion, as to call a man rogue and rafcal, if productive of no ill confequence, and not of any of the dangerous fpecies 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 circumftance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of flander P. Neither (as was formerly hinted 9) are any reflecting words made ufe of in legal proceedings, and pertinent to the caufe in hand, a fufficient cause of action for flander. Alfo if the defendant be able to justify, and prove the words to be true, no action will lie, even though special damage hath enfued: for then it is no flander 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 deftroy their respective actions: for though there may be damage fufficient accruing from it, yet, if the fact be true, it is damnum abfque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law: "eum qui no"centem infamat, non eft aequum et bonum ob eam rem condem"nari; delicta enim nocentium nota effe oportet et expedit."

A SECOND way of affecting a man's reputation is by printed or written libels, pictures, figns, and the like; which fet him in an odious or ridiculous" light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cafes, two remedies; one by indictment and another by action. The former for the public offence; for every libel has a tendency to break the peace, or provoke others to break it: which offence is the fame whether