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It was for their mutual conveniency and defence that men first entered into society, thereby submitting themselves to be governed by certain laws, that they might in return enjoy the benefit and protection of them. Legum denique idcirco omnes servi sumus, ut liberi esse possimus.-Cic.

pro Cluent.

Hence the end of the law is to preserve men's persons and properties [2] from the violence and injustice of others; and for that purpose it does, in all instances of an injury being committed, either inflict a punishment upon the party offending, or give a recompence to the party injured.

The method prescribed by the Law for getting at such recompence is what is properly termed an action : therefore leaving Criminal Prosecutions, by which punishments are inflicted, to the disquisition of

others,

others, I will, in this First Part of my work, take notice of the Injuries for which an Action may be brought, and by what Evidence it may be supported; and also consider what Defence may be made by the person against whom the Action is brought, and what is the proper Manner of taking advantage of it.

· BOOR

BOOK I.

FOR WHAT INJURIES AFFECTING THE PERSON AN ACTION MAY

BE BROUGHT.

THE injuries on account of which an action may be brought, are such as either affect the person, or the property of the party.

Those which affect the person are,
1. Slander.
2. Malicious Prosecution.
3. Assault and Battery.
4. False Imprisonment.
5. Injuries arising from Negligence or Folly.
6. Adultery.

CHAPTER 1.

OF SLANDER.

SLANDER is defaming a man in his reputation (a) by speaking or writing words which affect his life, office, or trade; or which tend to

his

(a) Slander may be by words ma charge him with an evil intention liciously spoken in the presence of only. Harrison v. Stratton, 4 Esp. others, or by a writing delivered N. P. Ca. 218. over to another to scandalize a man, So adjective words are actionable, or by painting a man ignominiously, if they presume an act committed, or by signs, as by affixing a gallows as to call a man “a perjured old over a inan's door. Case de libellis knave,” for perjured implies an act famosis, 5 Co. 125. .

committed. Secus, if a man be The important distinction between called “ a seditious or thevish knave," words spoken and libels was fully for that only imports an inclination established iv Villers v. Monsley, 2 to the crime. Brittridge's Ca. 4 Co. Wils. 403, viz. That whatever ren. 18. ders a man ridiculous, or lowers And indeed any words which may him in the esteem of the world, subject a man to prosecution are acamounts to a libel; though the same tionable. Morgan v. Williams, 1 words, if spoken, would not have Stra. 142. Cuddington v. Wilkins, been a defamation of him.

Hob. 81. Carpenter v. Tartant, Ca. As, to slander by words: Where temp. Hardw. 339, cited by Ellenbothe words spoken bring a man into rough, C. J. in Roberts v. Camden, danger of legal punishment, they 9 East, 97. will support this action, but they So words which operate to ex. must charge a fact to have been clude a man from society, are ac. committed, for it is not enough to tionable, as charging him with have

B 2

ing

his loss of preferment in marriage or service; or to his disinheritance; or which occasion any other particular damage. (a)

If slander be spoken of a peer or other great man, it is called by a particular name, Scandalum Magnatum, and is punishable in a particular manner, viz. by imprisonment, by Westm. 1. c. 54. as well as rendering

damages to the person injured, to be recovered in an action founded [*4 ) upon the 2d of R. 2. tam pro * Domino rege quam pro seipso. And

this statute is a general law of which the court will take notice, and therefore it need not be recited in the declaration, (yet if the plaintiff undertake to recite it, and mistake in a material point, it is incurable:)

ing an infectious disease. Taylor v. ticular instances of fraud, by which
Perr, i Rol. Abr. 44. Taylor v. defendant means to support it. l'An-
Perkins, Cro. Jac. 144. Crittal y. son v. Stuart, 1 T. Rep. 749.
Horner, Hob. 219. James v. Rut. In Surmon v. Shilleto, 3 Bur. 1688,
lech, 4 Co. 17. But the words must the words “ Thou hast cheated me
charge him with being then infec- of several pounds” were held action-
tious, and not with having been so. able; but it should seem there was
Carslake v. Mapledoram, 2 T. Rep. . a colloquium in the same count about
-473. Taylor v. Hall, 2 Stra. 1189. the plaintiff's trade, although none

So words which hinder a man in is mentioned as being in that count, his profession or trade, are action- either by the reporter or the bench. able. Byrchley's Ca. 4 Co. 16. Day In l'Anson v. Stuart, sup. Ashhurst, J. v. Buller, 3 Wils. 59. Phillips v. said, that " which affects liberty," is Janson, 2 Esp. N. P. 624. Roberts to charge a man with having comv. Camden, 9 East, 93. Hardwicke mitted an indictable offence; queere v. Chandler, Stra. 1138. Upsheer v. tamen, for Eyre, C. J. expressly says, Betts, Cro. Jac. 578. Kemp's Ca. that calling a man a cheat, is not Dy. 72 (b). Sed Vide Com. Dig. Act. actionable, and yet he is indictable on Ca. tit. Defamation, (D) 24. 259. as a cheat;* and, in his opinion, (F) 9. 269, for these cases at large. the words must impute a felony: The general rules of construction, as the old cases, he said, were irreconto slanderous words, is to construe cileable on this point, but the folthem in their plain and popular lowing appeared to him to be the sense, and such in which an ordinary leading principles, diz. words are achearer would have understood them tionable which impute to a man the at the time they were spoken. Har- crime of felony, or a disease which man v. Delany, Fitzg. 254. Roberts may drive him from society, or any v. Canden, 9 East, 93.

thing which imports a something (a) Words not otherwise action- equally noxious in its effect. So able, become so when applied to a words not actionable in themselves, man's trade or profession; and words may become so from the person to published in writing are actionable, whom they are addre

and someo which would not be so from a bare times a colloquium may be supposed, speaking of the same words; because but in other cases they are not aca libel disperses and perpetuates the tionable, except for particular dascandal. "Harman v. Delany, Fitzg. mage; therefore “thou art forsworn" 253: therefore to print of any one, is not equivalent to perjured, withthat he is a swindler is a libel, and out a colloquium as to some judicial actionable; and a justification of proceeding. Holt v. Isterfield, 6 T.R. such a charge must state the par. 634. Onslow v. Horne, 3 Wils. 186. * This seerns a mistake; for a man is not indictable as a cheat, but as a common cheat.

but

but it must be shewn that the plaintiff was unus magnatum at the time of speaking the words, else the action will not be maintainable. (a) (Lord Cromwell v. Denny, 20 Eliz. 4 Co. 12, 13. E. of Shaftsbury v.

Lord Digby, T. 28 Car. 2. 2 Mod. 98. Ld. Townsend v. Dr. Hughes, H. 28 & 29 Car. 2. 2 Mod. 166. Lord Say and Sele v. Stephens, T. 4 Car. 1. Cro. Car. 135.) It has been said there is a difference between an action grofinded upon the statute de scand. magn. and a common action of slander; that the words in the one case should be taken in mitiori sensu, and in the other in the worst sense against the speaker, that the honour of such great persons may be preserved : (E. of Peterborough v. Sir John Mordant, H. 21 & 22 Car. 2. i Vent. 60.) But this differeuce seems no longer to subsist; because the old rule, that words shall be taken in mitiori sensu is now exploded, and the rule at this time is, that they shall be taken in the same sense, as they would be understood by those who hear or read them, and for that purpose all the words ought to be taken together.— Bradley and Messon, M. 10 G.2. Ld. Townsend v. Hughes, 2 Mod. 159.

The defendant said to the plaintiff, I know you very well, how did your husband die? The plaintiff answered, “ As you may, if it please God.The defendant replied, No, he died of a wound you gave him. On not guilty, there was a verdict for the plaintiff; and on motion in arrest of judgment, the court held words actionable, for they are in the whole frame of them spoken by way of imputation. Parker, C. J. said, it is very odd, that after a verdict a court of justice should be trying whether there may not be a case in which words spoken by way of scandal might be innocently said ; whereas if that were in truth the

case, the defendant might have justified. Ward v. Reynold, P. 12 Ann, Gilb. Rep. K. B. 243. (b)

(a) It has been held in the Star than you should want a hangman, Chamber, that if a Scand. Mag. be I will hang you." In another count, brought on this stat. defendant can- you are guilty,” (innuendo of the not justify, because it is brought qui murder of d. D.) After verdict, tam, and the king is concerned; but both counts were held to be actiondefendant may explain the words, able, but on motion, in arrest of and tell the occasion of speaking judgment in C. B. and writ of error them. If they are true, they must in B. R., Lord Mansfield said, the not be published, because the stat. words“ guilty of the death,” bore a was made to prevent discords. Per very different meaning from “ you North, C. J. in Lord Townshend v. were the cause of the death,for one Dr. Hughes, sup.

might be innocently the cause of the (b) Colloquium was of the death death of another. Peake v. Oldham, of D.D. The words in one count Cowp. 278, where this case was cited were,“ you are guilty," (innuendo of by Mansfield, C. J. as in point. the death of D. D.) “ and rather

Yet

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