Gambar halaman
PDF
ePub

a Perfonal actions are fubdivided into two kinds-actions that are founded upon torts, or wrongs, and actions that are founded upon contracts. Actions founded on torts, are again divided into two kinds; one where the act complained of is immediately inju rious, accompanied by fome degree of actual force or violence; as trefpafs, battery, falfe imprisonment, and the like. The other is where the injury is not accompanied with actual force and violence, and is injurious in its confequences only; as flander, malicious profecution, trover, and the like. These two kinds of actions are diftinguished from each other by denominating the former trefpals with force, and the latter, trefpafs on the cafe.

Actions founded on contracts, are to recover damages for the non-payment of fome debt, the non-performance of fome contract, or the neglect of fome duty. Such are actious of debt, covenant, account and affumpfit, and book debt,

с

It may not be improper to make a few remarks upon the origin of actions of trefpafs on the cafe, which are fynoninious with actions of the cafe, as this fubject is not fully explained by the elementary writers on the law. Originally by the common law, all the actions that were grounded on torts were trefpafs, replevin, detinue and deceit. Confpiracy was introduced by ftatute in the reign of Edward I. and all the actions grounded on contracts were debt, covenant, and account. Tho' thefe actions might be fufficient in the early periods of the English government, when there was bur little perfonal property, and the people being in the agricultural ftate of fociety, paid their chief attention to lands, in their actions respecting which they proceeded to great lengths in refinement; yet when they arrived to the commercial state, and the principles of jurifprudence were better understood, as well as perfonal property largely encreased, it was apparent that new remedies must be devised. It is manifeft that the action of trefpafs could not extend to a vaft variety of injuries, to which mankind are expofed. Such are those which are unaccompanied by force. The admiffion of the defendant to wage his law in actions of debt and detinue, must have been productive of great mischief and injuftice. No action of covenant could he maintained undefs the plaintiff could produce on trial, a covenant in writing. This precluded any remedy on all parol co

venants

b3 Reeve's Hift. English Law, 58, and—2. 329

a 1 Efpin. Digeft. 1. £ 2 Reeve's Hift. Eng. Law, 239.

venants and promifes. The imperfection of perfonal actions, rendered it abfolutely neceflary, to establish fome new actions, or extend the old remedies to fupply the defect.

A hint to adopt the neceflary improvements, was taken from the ftatute of Westminster the fecond, paffed in the thirteenth year of the reign of Edward the firft, which enacted, "that as often

as it fhall happen in chancery, that in one cafe a writ fhall be «found, and in a fimilar cafe depending on the fame principle, and "wanting a fimilar remedy, no writ can be found, then the clerks

of the chancery fhall agree in making a writ, or adjourn the 4 cafe to the next parliament, and write the cafe in which they could not agree, and refer it to the parliament, when a writ fhould be made with the advice of perfons learned in the law, "left it might happen that the king's court should for a long time fail "in adminiftering juftice to complainants." This ftatute eftablishes a principle, the carrying of which into effect, must neceffarily be productive of a progreffive improvement in jurisprudence. In the reign of Edward III. the courts of law difcovering the imperfection of the writ of trefpafs in the old form, were not content with it; they therefore availed themselves of this statute, authorizing writs to be framed in fimilar cafes, and endeavoured to render it more univerfal by enlarging its fcope, and modifying its terms, fo as to adapt it to every man's own cafe. Tho' this innovation met with fome appofition, yet we find in the reign of Henry IV. that writs of treipafs were extended to a great variety of new cafes and had affumed the name of trefpafs on the cafe. In this reign the marks of difcrimination between trefpafs and trefpafs on the cafe, began to be diftinctly afcertained: that the former fhould be always with force and arms, and the latter never. This action was by degrees extended to a vaft variety of cafes for which there was no remedy at common law, and adapted to many cafes for which there was a Specific remedy at common law, and on account of its greater convenience fuperceeded them, fuch as deceit, confpiracy, and deti

nue.

The great advantages derived from the action of trefpafs on the cafe, made courts defirous of extending the fame principles to actions founded on contract, to avoid the inconvenience of wager of

law

a-2 Reeve's Hift. Eng. Law, 11.202, 203.—2 Cuk. Inft. 404, 3 Reeve's Hift. Eng. Law, 89.

law in debt, and the neceffity of evidencing a contract by a specialty in covenant. Tho' it feemed harsh to comprehend under the name of trefpafs the non-performance of promifes, yet after fome time the neceffity of fuch an amendment of the law induced courts to admit these new writs, and by a long train of rational, liberal and equitable decifions, the courts of law have perfected the mode of redreffing wrongs by actions. This noble improvement is owing to the principle promulgated in the ftatute of Westminster the fecond, which authorized the framing writs in fimilar cafes. It is wonderful to furvey the various improvements and additions, which have been made to the English jurifprudence in the exercife and application of this fundamental principle. They have from time to time, devised remedies as the exigencies of mankind required, in a gradual progrefs from the fimpleft ftages of fociety, to the complicated interests of commerce, luxury, and the higheß refinement of manners. The fyftem of jurisprudence has become so perfect, that it can hardly be expected a cafe fhould arife that does not come within the defcription of fpecific remedies, well known and established. Yet the fame principle which has produced fuch wonderful improvements in hands of judges, may ftill be called into exercife whenever there fhall be an occafion.

The perfonal actions now remaining, which originally existed at common law, are trefpafs and replevin, for torts or wrongs; and debt, covenant, and account, for contracts. Thefe may be deemed original specific actions, having appropriate names. All other perfonal actions may be denominated actions of trespass on the cafe, and were introduced and established in the manner I have related. But tho' all these actions fo introduced, have been indifcriminately by writers, called actions of trefpafs on the cafe, and actions on the cafe; yet we find in the progrefs of juridical improvement, that certain claffes affumed specific names, by which they are also known. Affumpfit will comprehend all new remedies that have been devifed refpecting actions founded on contracts. Trover, flander, and malicious profecution, have received names among the actions of trefpafs on the cafe, which are founded on torts. But on account of the difficulty of claffing all the actions that arife in the courfe of things, we find that there are fome injuries which must be yet claffed under the general name of trefpafs on the cafe.

Having premifed thefe general obfervations upon the nature of actions, I fhall now proceed to delineate every kind of action, that is neceffary to redress every poffible injury. In the first place I fhall treat of those actions which respect perfons, and then those which refpect things. In the former part of our inquiries we have confidered the various rights of the people. Wrongs being only a privation of rights, I fhall purfue this branch of the subjec under the fame distribution, and shall unfold a fyftem of wrongs Correfpondent with the former fyftem of rights.

Rights are divided into absolute, and relative—absolute, such as belong to men as individuals, which are perfonal fecurity, perfonal liberty, and private property. Relative, are fuch as belong to them as members of fociety,which are the relations of husband, and wife; parent, and child; guardian, and ward; mafter, and fervant. Of each of these I shall treat in their order referving the confidera tion of actions refpecting private property to the last divifion.

[ocr errors]

CHAPTER THIRD.

OF ACTIONS FOR INJURIES THAT AFFECT THE RIGHT OF PERSONAL SECURITY.

THE right of perfonal fecurity confifts in the prefervation of

one's life, limbs, body, health, and reputation. The injury of depriving a man of his life is deemed the higheft offense against fociety, and is punifiable with death. This fubject will be confidered when we come to treat of crimes. In this chapter I fhall confider

I. The injuries that affect the limbs, and body of a perfon, and the modes of redress,

II. The injuries that affect a man's health, and the modes of redrefs.

III. The injuries that affect a man's reputation, and the modes of redrefs.

I. Iam to attend to a confideration of the injuries that affect the limbs, and body of a person, and the remedies. To investi

gate

gate this fubject with the greater perfpicuity, it will be convenient to attend to the following divifions.

1. What acts amount to an infringement of the right of preferving the limbs, and body of a perfon.

2. What shall be a fufficient excufe for an affault, and battery. 3. What actions may be brought for the recovery of damages, for thefe injuries.

I am to confider the acts done by a perfon to the limbs, and body of another, which conftitute civil injuries. I fhall first expound the common law, and then the statute law. Two injuries may be committed by the common law, assault, and battery.

a Affault is the unlawful fetting upon a perfen of any one, by the offer or attempt to beat, tho' without touching the perfon, as by ftriking at him with, or without a weapon, and miffing him, or presenting a gun at him, at a distance to which the gun will carty, or pointing a pitchfork at him, standing within reach of him, or by holding up one's fift at him, or by drawing a sword and waving it in a menacing manner. But if in doing fuch act he makes ufe of fuch expreffions, as fhew he has no intention to strike a blow, it is no affault; as where a perfon lays his hand on his sword as if to draw it, this might be deemed an affault, but when he fays-If this was not affize time, I would not take fuch language from These words thew he had no intention to do any corporal you. hurt, and explain away the implied infult. No words whatever, let them be ever fo provoking, can amount to an affault. Every battery includes an affault.

2. Battery is an actual commiffion of violence to the perfon. Any injury however fmall that is done to a perfon, in a spiteful, revengeful, rude, or infolent manner, either by beating, striking, or pushing him, or by fpitting in his face, treading on his toes, or any way touching him in anger, or violently jottling him out of the way, are batteries in the eye of the law. For the law holds every one's perfon to be facred, and no one has a right to do him the least injury, and as it is difficult to draw a line of distinc tion between different degrees of violence, it is neceffary to prohibit it in every stage, and then give damages according to the na

ture

ET Elpin. Dig. 383. Finch's Law, 202. 2 Roll. Ahr. 545. Hawk. P. C. 133 Gilb. Law Evid. 256. Hawk. P. C. 174. 1 Efpin. Dig. 384.

« SebelumnyaLanjutkan »