warrant, and the same has been refused for the space of six days; (a) and in case the warrant be shewed and a copy taken, and afterwards an action be brought against the constable, without making the justice a defendant, the jury shall, on producing the warrant, find a verdict for the defendant, notwithstanding any defect of jurisdiction in the justice; and if such action be brought jointly against the justice and him, upon producing the warrant, the jury shall find for him; and if they find against the justice, the plaintiff shall recover the costs he is to pay to such defendant against the justice, with a proviso, that if the judge certify that the injury was wilfully and maliciously committed, the plaintiff shall be entitled to double costs. And a proviso likewise, that such action shall be commenced within six calendar months after the act committed. (b) The officer must prove that he acted in obedience to the warrant; and where the justice cannot be liable, the officer is not within the protection of the act.-Money v. Leach, T. 5 Geo. 3. 3 Burr. 1766. If a man be imprisoned by a justice's warrant on the first day of January, and kept in prison till the first day of February, he will be in time if he brings his action within six months after the first of February, for the whole imprisonment is one entire trespass.-Pickersgill v. Palmer, T. 1 Geo. 3. C. B. Vide Coventry v. Apsley, Salk. 420. S. P. The justice having pleaded tender of amends, the plaintiff obtained a rule for the defendant to bring the money into court for the plaintiff to take the same, upon discontinuing his action.-Lawrence v. Cox, Hil, 33 Geo. 2. K. B. An overseer of the poor, who distrains for a poor's rate under a justice's warrant, is an officer within the protection of this act.-Nutting v, (a) As to this it was held in Jory v. Orchard, 2 Bos. and Pull. 39, that a duplicate original of such demand is sufficient evidence, and that a demand signed by attorney is within the meaning of the act. (b)" By 43 Geo. 3. c. 141, in all "actions against any justice of 46 peace on account of any convic"tion by him under any statute, &c. or by reason of any act, matter, or 46 thing done, or commanded to be "done, by such justice, for the levy"ing of any penalty, apprehending 66 any party, or for carrying any "such conviction into effect, in case "such con;iction shall have been quashed, the plaintiff in such action "(besides the penalty, if levied, &c.) "shall not be entitled to recover 16 "more than 2d. damages, nor any 66 costs, unless it shall be expressly alleged in the declaration in the "action for which the recovery shall "be had, and which shall be in an ac"tion upon the case only, that such "acts were done maliciously, and "without any reasonable and pro"bable cause." But in Massey v. Johnson, 12 East, 67, it was decided that this statute applies only to cases in which there has been actually a conviction. Under the 13th Geo. 3. c. SO, which is against shooting game on a Sunday, a magistrate may, by parol, legally authorize the defendants to detain the plaintiff in custody till the return of the warrant of distress. Still v. Walls, 7 East, 535. Jackson, Jackson, K. B. E. IS Geo. 3. Feltham v. Terry, E. 13 Geo. 3. Note, the above act extends only to actions of tort: and therefore where an action for money had and received was brought against an officer who had levied money on a conviction by a justice of the peace, the conviction having been quashed, it was holden that a demand of a copy of the warrant was not necessary. (a) And so in a churchwarden. Harpur v. Carr, 7 T. Rep. 271. [ 25 ] CHAPTER V. OF INJURIES ARISING FROM NEGLIGENCE OR FOLLY EVERY man ought to take reasonable care that he does not injure his neighbour; therefore, wherever a man receives any hurt through the default of another, though the same were not wilful, yet if it be occasioned by negligence or folly, the law gives him an action to recover damages for the injury so sustained. (a) (a) There is a very wide distinction between a mere accidental and involuntary injury done to a man, and one that is the effect of negligence, folly, or culpable carelessness. The quo animo of the party who is the cause of the injury is the criterion, and of that the jury are the proper judges. Beckwith v. Shordike, 4 Burr. 2093. This actions lie against the owner of a dog accustomed to bite, at the suit of the person bitten; but the declaration must shew that the owner knew his dog was fierce. Mason v.Keeling, 1 Ld. Raym. 606, (but differently reported in 12 Mod. 332,) for the scienter is the gist of the action. Smith v. Pelah, 2 Stra. 1264. Vide Buxenden v. Sharp, 2 Salk. 662. Kinnion v. Davies, Cro. Car. 487. Vide etiam Jones v. Perry, 2 Esp. N. P. C 482, where it was held, that the owner of a fierce dog is bound to As secure him without notice of his fe rocity. Contra Mason v. Keeling, sup. Under this class of cases may also be ranked those of misfeasance in driving carriages, as to which it has been held, that where there is no other carriage on the road, the coachman may drive on what part of it he pleases. Aston v. Heaven, 2 Esp. N. P. C. 533. And he is not bound to keep on the left side of the road, provided he leaves suffi cient room for other carriages that may meet him on their proper side. Wordsworth v. Willan, 5 Esp. N. P. C. 273. So is the driver of a stage coach bound to inform the outside passengers where the way lies under a low and almost impassable gateway. Dudley v. Smith, 1 Camp. 167. Proof that a stage coach broke down, and that plaintiff, a passenger, was much bruised, is sufficient to As in the case mentioned in the third chapter, where the defendant, by uncocking his gun, accidentally wounded the plaintiff, who was standing by to see him do it. (a) If a man ride an unruly horse in any place much frequented, (such as Lincoln's-Inn-Fields) to break and tame him; if the horse hurt another, he will be liable to an action; and it may be brought against the master as well as the servant, for it will be intended that he sent the servant to train the horse there; or it may be brought against the master alone.Michael v. Alestree & al'. T. 1676. 2 Lev. 172. (b) The servants of a carmau run over a boy in the streets, and maimed him, by negligence; an action was brought against the master, and the plaintiff recovered. (Anon. 1 Raym. 739.) And note, that in such case the servant cannot be a witness for his master, without a release, because he is answerable to him.-Jarvis v. Ilayes, M. 11 Geo. 2. Str. 1083. (c) So in the case abovementioned, if one whip my horse, whereby he runs away with me, and runs over a man, the man may bring an action against such person; for the whipping my horse was an act of folly, and therefore he ought to be answerable for the consequence of it. (Dodwell v. Burford, M. 1669. 1 Mod. 24.) A fortiori, I might maintain an action if I received any hurt from my horse's running away, because the consequence is more natural. However it is proper in such cases to prove that the injury was such, as would probably follow from the act done: as that many people were assembled together near the place, at the time of his whipping the horse; or that the person run over was standing near and within sight; yet, as the defendant is only to answer civiliter and not criminaliter, it does not seem absolutely necessary to give such proof; though to be sure such circumstances will have [*26 ] weight in diminishing or increasing the quantum of the damages. So if a man lay logs of wood cross a highway; though a person may with care ride safely by, yet if by means thereof my horse stumble and fling me, I may bring an action; for wherever a man suffers a particular injury by a nuisance, he may maintain an action; but then the injury must be direct (such as before mentioned) and not consequential, raise a presumption, that the accident arose either from the unskilfulness of the driver, or from the insufficiency of the coach, and it lies on the coach owner to negative these inferences. Christie v. Griggs, 2 Camp. 79. (a) Underwood v. Hewson, Stra. 596. S. P. et ante, p. 16. (b) And it is no excuse for the defendant, that the injury was involuntary on his part, if any damage be caused to another from his folly or want of due care and caution. Esp. N. P. Dig. 599. (c) Nor against him without a release. Miller v. Falconer, 1 Camp. 251. as as by being delayed in a journey of importance. (Paine v. Partrick, T. 3 W. 3. Carth. 194. Iveson v. Moor, T. 10 W. 3. Ib. 451. (a) So if a surgeon (b) undertake to cure a person, and by his negligence and unskilfulness (c) miscarry, an action will lie; but if the person undertaking to make the cure be not a common surgeon, there must be an express promise; because if it were not his profession, it was the folly of the plaintiff to trust him, (d) unless he were deceived by an express promise; and the law in such case will not raise a promise. The defendant may in either case give in evidence that the plaintiff did not follow his directions, &c.-1 Danv. 177. As I shall have occasion to say more upon this head in the next book, under the title of "Case for Misbehaviour in an Office, Trust, or Duty," and of "Case of consequential Damages," I will only add in this place, That it is a settled distinction, that where the immediate act itself occasions a prejudice, or is an injury to the plaintiff's person, house, land, &c. trespass vi et armis will lie: But where the act itself is not an injury, but a consequence from that act is prejudicial to the plaintiff's person, house, land, &c. trespass vi et armis will not lie, but the proper remedy is an action on the case.-Reynolds v. Clark, T. 1 Geo. 1. 2 Raym. 1402. (a) This point was adjudged in Fowler v. Sanders, M. 1617. Cro. Jac. 446, and cited in Reynolds v. Clark, post. The cases referred to by the text are however to S. P. To support this action, two things must concur, an obstruction on the road by the fault of the defendant, and no want of ordinary care to avoid it on plaintiff's part. Per Lord Ellenborough, C. J. in Butterfield v. Forrester, 11 East, 60. (b) Physician, surgeon, or apothecary, 11 H. 7. c. 18. (c) (or curiosity.) (d) Vide Doctor Groenvelt's Ca. 1 Lord Raym. 214. But want of skill alone will not maintain this action, for there must also be evidence of negligence and carelessness to the evident detriment of the patient. Searle v. Prentice, 8 East, 348. But where a surgeon unskilfully disunited the callous of the plaintiff's leg, in order to try an experiment, this action was held to lie. Slater v. Baker, 2 Wils. 359. CHAPTER VI. OF ADULTERY. I AM now come to the last thing for which (as a personal injury) an action will lie, and that is Adultery. And the action lies in this case for the injury done to the husband in alienating his wife's affections; destroying destroying the comfort he had from her company; and raising children for him to support and provide for. And as the injury is great, so the damages given are commonly very considerable: But they are properly increased or diminished by the particular circumstances of each case; [ *27] the rank and quality of the plaintiff; the condition of the defendant; his being a friend, relation, or dependant of the plaintiff, or being à man of substance; proof of the plaintiff and his wife having lived comfortably together before her acquaintance with the defendant; and her having always borne a good character till then; and proof of a settlement, or provision for the children of the marriage, are all proper circumstances of aggravation. On the other hand, proof that the wife had before eloped with others, or that the husband had turned her out of doors, and refused to maintain her; and that he kept company with other women; (Cibber v. Sloper, per Lee, C. J.) or that he was acquainted with and consented to the defendant's familiarity with her, is proper in mitigation of damages. (Roberts v. Marlston, at Hereford, 1756. per Willes, C. J.) So the defendant may give in evidence, that the wife had a bastard before marriage, but he will not be permitted to give evidence of the general reputation of her being (or having been) a prostitute; for that may be occasioned by her familiarity with the defendant; though perhaps, after having laid a foundation by proving her being acquainted with other men; such general evidence may be admitted: (Rigby v. Stephenson, Stafford, 1745. per Foster, J.) But for this matter of giving character in evidence, vide post, lib. vi. (a) But in an action for crim. con. with the plaintiff's wife, Lord Mansfield laid it down as clear law, that if a woman be suffered to live as a prostitute, with the privity of her husband, and a man is thereby drawn into crim. con. and the husband brings an action, it will not lie: (b) It (a) Where the character of the plaintiff or defendant is attempted to be impeached in the cross examination of witnesses produced by. the adversary, and those witnesses deny the imputation intended to be. conveyed, the adverse party shall not be permitted to go into evidence of the husband's character. King v. Francis, 3 Esp. N. P. Ca. 116. Should the husband, however, be proved guilty of notorious infidelity, it will be no bar to this action, though it will go far to mitigate his damages. Bromley v. Wallace, 4 Esp. 237. Vide etiam Wyndham v. is. Wycombe, ib. 16. Hodges v. Wynd (b) Nor indeed ought the hus- for |