Injuries Affecting Limb or Body.

2. The next two species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these may be committed: 1. By threats and menaces of bodily hurt through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, makes not the injury; but, to complete the wrong there must be both of them together. The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis; this being an inchoate, though not an absolute, violence.

Assault.

2. By assault; which is an attempt or offer to beat another, without touching him: as if one lifts up his cane, or his fist, in a threatening manner at another; or strikes at him but misses him; this is an assault, insultus, which Finch describes to be "an unlawful settling upon one's person." This also is an inchoate violence, amounting considerably higher than bare threats: and therefore, though no actual suffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compensation for the injury.

Battery, Wounding.

3. By battery; which is the unlawful beating of another. The least touching of another's person wilfully, or in anger, is a battery for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it; every man's person being sacred, and no other having a right to meddle with it in any the slightest manner. But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So also on the principle of self-defense: for if one strikes me first, or even only assaults me, I may strike in my own defense; and, if sued for it, may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned it. So likewise in defense of my goods or possession, if a man endeavors to deprive me of them I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away. On account of these causes of justification, battery is defined to be the unlawful beating of another; for which the remedy is, as for assault, by action of trespass vi et armis: wherein the jury will give adequate dam

ages.

4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery.

Mayhem.

5. By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for his defense in fight. This is a battery attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defense against future external injuries, as he otherwise might have done. Among these defensive members are reckoned not only arms and legs, but a finger, an eye, and a foretooth, and also some others. But the loss of one of the jaw-teeth, the ear, or the nose, is no mayhem at common law, as they can be of no use in fighting. The same remedial action of trespass vi et armis lies also to recover damages for this injury, an injury which (when willful) no motive can justify but necessary self-preservation. 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.

Injuries Affecting Health.

4. Injuries affecting a man's health are where, by any unwholesome practices of another, a man sustains any apparent damage in his vigor or constitution. As by selling him bad provisions, or wine; by the exercise of a noisome trade, which infects the air in his neighborhood; or by the neglect or unskillful management of his physician, surgeon, or apothecary.

Trespass Upon the Case.

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 a 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. 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 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 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 settled distinction, 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.

Injury to Reputation-Slander.

5. Lastly; injuries affecting a man's reputation or good name are, first, by malicious, scandalous, and slanderous words, tending to his damage 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 impeaching him of some heinous crime, as to say that a man hath poisoned another, or is perjured; or which may exclude him from society, as to 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 a quack, or a lawyer a knave. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly. It is said, that formerly no actions were brought for words, unless the slander 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 slanderers, it is now held that for scandalous words of the several species before mentioned (that may endanger a man by subjecting him to the penalties of the law, may exclude him from society, 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 such defamation as will of course be injurious, it is necessary that the plaintiff should aver some particular damage to have happened; which is called laying his action with a per quod. In like manner, to slander another man's title, by spreading such injurious reports as, if true, would deprive him of his estate (as to call the issue 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 loses an opportunity of selling the land. But merely scurrility, opprobrious words, which neither in themselves import, nor are in fact attended with, any injurious effects, will not support an action. So scandals, which concern matters merely spiritual, as to call a man a heretic or adulterer, are cognizable only in the ecclesiastical court; unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man

rogue and rascal, if productive of no ill consequence, and not of any of the dangerous species 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 circumstances of ill will: for, in both these cases, they are not maliciously spoken, which is a part of the definition of slander. Neither (as was formerly hinted) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander. Also, if the defendant be able to justify, and prove the words to be true, no action will lie, even though special damage hath ensued: for then it is no slander 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 destroy their respective actions; for though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury the law gives no remedy.

Libel.

A second way of affecting a man's reputation is by printed or written libels, pictures, signs and the like; which set him in an odious or ridiculous light, and thereby diminish his reputation. With regard to libels in general, there are as in many other cases, two remedies; one by indictment, and the other by action. The former for the public offense; for every libel has a tendency to the breach of the peace, by provoking the person libeled to break it: which offense is the same (in point of law) whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of justification. But in the remedy by action on the case which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all. What was said with regard to words spoken will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon; but as to signs or pictures, it seems necessary always to show by proper innuendoes and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear that such libel by picture was understood to be leveled at the plaintiff, or that it was attended with any actionable consequences.

Malicious Prosecutions.

A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which under the mask of justice and public spirit, are sometimes

made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy, which cannot be brought but against two at least; or, which is the more usual way, by a special action on the case for a false and malicious prosecution. In order to carry on the former (which gives a recompense for the danger to which the party has been exposed), it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecution for felony, it is usual to deny a copy of the indictment, where there is any the least probable cause to found such prosecution upon. For it would be a very great discouragement to the public justice of the kingdom, if prosecutors who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. But an action on the case for malicious prosecution may be founded upon an indictment whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. However, any probable cause for preferring it is sufficient to justify the defendant.

Affecting Personal Liberty.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment, for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party. False Imprisonment.

To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person. is an imprisonment whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice, or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; or from some other special cause warranted, for the necessity of the thing, either by common law or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of wagoners for misbehavior in the public highways. False imprisonment also may arise by executing a lawful warrant or process at an unlawful time, as on Sunday: for the statute hath declared that such service or process shall be void.