the constitutionality of the laws. In general, statutes of limitations are prospective only; their object is to establish that a certain lapse of time shall amount to evidence of transfer of property. A statute which would take away a man's remedy, so as wholly to deprive him of his right, would be considered a violation of the constitution, which guarantees to all the right of property.25 The presumptive rights which have been mentioned in the preceding sections, which are evidence of a positive prescription, are said to apply to those cases which are not within the acts of limitations.2 26 2205. The principal statutes which regulate this subject are the 32 Henry VIII, c. 2, and 21 Jas. I, c. 16, the principles of which have been re-enacted or adopted in most of the states of the Union," and are the law there. The statute of 32 H. VIII enacts that no writ of right shall be brought, or claim or prescription made, for any lands, etc., or other hereditaments, upon seisin of any ancestor or predecessor, unless such seisin was within sixty years before the teste of the writ, or upon one's own seisin within thirty years. The statute of James provides that writs of formedon, in descender, etc., shall be brought within twenty years next after the title and cause of action first had descended or fallen, saving, however, to infants, femes coverts, persons non compos, imprisoned, or beyond sea, or to their heirs, the right of suing within ten years from removal of such disability, or from their deaths under such disability.29 28 2206. Allied to prescription is the right acquired by custom. The principles which govern the subject are, in general, the same as those which regulate prescriptions. It must be remembered, however, that title by custom must be confined entirely to incorporeal hereditaments. The distinction between prescription and custom seems to be this, that custom, by which must be understood a particular custom, is a local usage not annexed to the person; as, for instance, for all the tenants of a manor to have a common of pasture; while prescription is always annexed to a particular person. An easement is said to be a service which one neighbor has of another, and may be claimed, and the right to it be established, by prescription; but a multitude of persons cannot prescribe for an easement, though they may plead a custom.30 A custom, we have seen, is a usage which has acquired the force of law; these customs are general or particular. To make it a good custom the right must have been exercised for a time beyond legal memory, which goes back to the reign of the English Richard I. But, now, if the existence of a custom at a distant time be shown, and there is no proof of its non-existence at any time, a jury may infer it went back to the time of legal memory. 32 When a right can be claimed by prescription, it cannot, in general, be acquired by custom; a custom to take the profit in alieno solo, therefore, is bad; the proper mode of acquiring the right is by prescription. 33 26 1 Vt. 53. 25 Gospel Society v. Wheeler, 2 Gall. C. C. 105. "The statute 32 H. VIII, c. 2, s. 2, has not been adopted in Maryland. Pancoast v. Addison, 1 Harr. & J. Md. 356. In Louisiana, another system has been adopted. 28 In Tennessee, it has been held that slavery is an imprisonment within the meaning of the statute. Matilda v. Crenshaw, 4 Yerg. Tenn. 299. 29 See Coke, Litt. 114, b. 31 Before, 121. Bacon, Abr. Customs, A. 30 2 Johns. N. Y. 362. 82 Lenckhart v., Cooper, 7 Carr. & P. 119; Jenkins v. Harvey, 1 Crompt. M. & R. Exch. 877; 2 id. 393. 33 Grimstead v. Marlowe, 4 Term, 717; Waters v. Lilley, 4 Pick. Mass. 125; Perley v. Langley, 7 N. H. 283; see Ackerman v. Shelp, 3 Halst. N. J. 125; Luff kin v. Haskell, 3 Pick. Mass. 356. THIRD BOOK. OF WRONGS. CHAPTER I. WRONGS TO THE PERSON. 2207. Wrongs and injuries. 2211. Injuries to the absolute rights. 2213-2233. Assaults and batteries. 2213. Nature of an assault. 2214. Nature of a battery. 2219-2233. How justified. 2220. For the public good. 2227. In the exercise of an office. 2231. In aid of an authority in law. 2232. In self-defence. 2234. Menaces and threats. 2235. Injuries to health. 2207. Having considered the rights and duties of persons, the nature of personal and real estate, and the manner of acquiring and losing title to all kinds of property, we are, in the next place, to inquire into the wrongs and injuries which men are liable to suffer from others in their persons and property. 2208. A wrong is a violation of a right. In its most usual sense it signifies an injury committed to the person, to his relative rights, or to his property, unconnected with contract; but in a more extended signification, wrong includes the violation of a contract; a failure by a man to perform his promise is a wrong to him to whom it was made.1 Wrongs are divided into public and private. A public wrong is an act which is injurious to the public generally, commonly known by the name of crime, misdemeanor, or offence. Private wrongs are injurious to individuals unaffecting the public. The same act may constitute a public wrong and a private wrong. Under the English law, when the crime was so grave as to constitute a felony the goods of the felon were forfeited to the crown, and the party injured by the act, toward whom the act constituted a private wrong, could have no remedy. The private wrong was said to be merged in the felony. But this doctrine has not generally been adopted in this country; and in some states where the courts have held the rule to be in force, it has been abrogated by statute. The character of the act as a crime in no way alters its character as a private injury, and does not de 1 2 Sharswood, Blackst. Comm. 158. 2 Pettingill v. Rideout, 6 N. H. 454; Foster v. Commonwealth, 8 Watts & S. Penn. 77; Patton v. Freeman, Coxe, N. J. 113; Allison v. Farmers' Bank, 6 Rand. Va. 223; White v. Fort, 3 Hawks, No. C. 251; Robinson v. Culp, 1 Const. So. C. 231; Story v. Hammond, 4 Ohio, 376; Ballew v. Alexander, 6 Humphr. Tenn. 433. An exception still exists in the case of prive the party injured of his remedy. 2209. Tort, a term of a signification somewhat similar to wrong, is an unlawful act injurious to another, independent of any contract. Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, and imprisonment; or they may be committed without force; torts of this last kind are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or incorporeal, in possession or reversion; these injuries may be either by non-feasance, malfeasance, or misfeasance. In the consideration of wrongs we will confine ourselves to those of a private nature. These naturally divide themselves into such as affect the person, such as relate to personal property, and such as are injurious to real estate. 2210. The injuries to persons affect either their absolute or relative rights. 2211. The absolute rights of persons are vested, by the constitution and laws, in every freeman born in this country, or who is a citizen of the United States, or who is a resident here, except he be an alien enemy, and the laws protect him in his personal security of life, limb, body, health, reputation, and liberty. 2212. The injuries to life, limb, and body, considered as private wrongs are assaults and batteries, menaces, and threats, and injuries arising from want of due care, and the like. 2213. An assault is an unlawful attempt or offer, with force and violence, to do a corporeal hurt to another, whether from malice or wantonness; for example, by striking at him, or even holding up the fist at him in a threatening and insulting manner, or with circumstances as denote at the time an intention, coupled with a present ability," of actual violence against his person; as, pointing a weapon at him when he is within reach of it. Thus, levelling a gun at another within a distance from which, supposing it to be loaded, the contents might wound, is an assault; or riding after a person and obliging him to run into a garden to avoid being beaten is also an assault. Unless there has been an offer to strike with an intention manifested at the time of committing an injury there will be no assault. 6 Abusive words, however violent, cannot alone constitute an assault; they may, indeed, on the contrary, sometimes so explain the aggressor's intent, as to prevent an act prima facie an assault from amounting to such an injury; as, when a man, during the sitting of the court of assizes, in a threatening posture, half drew his sword from its scabbard and said, "If it were not assize time, I would run you through the body," it was adjudged that the act did not amount to an assault, for in that the intention to injure is an essential ingredient, and here it was wanting. Boston R. R. v. Dana, 1 Gray, Mass. 83; Phillips v. Kelley, 29 Ala. N. s. 628; Wheatley v. Thorn, 23 Miss. 62. Carey v. Berkshire R. R., 1 Cush. Mass. 475. The cases have gone so far as to hold that no action lies for the death of a person whether the killing be felonious or from carelessness. There may be a statutory penalty for the carelessness. The right of action against railroads and others, independent of statutes, belongs to the person killed, on account of the injury, pain, and suffering, and not on account of the death. If the death is instantaneous therefore, there is no instant of time when the person killed had a right of action, and therefore none survives to his representatives. Baker v. Bolton, 1 Campb. 5 Read v. Coker, 13 C. B. 850. 493. Comyn, Dig. Battery, C; State v. Shepard, 10 Iowa, 126; State v. Smith, 2 Humphr. Tenn. 457; Beach v. Hancock, 26 N. H. 223. Morton v. Shoppee, 3 Carr. & P. 373. Redman v. Edalfe, 1 Mod. 3; Viner, Abr. Trespass, A, 2; Hawkins, P. C. c. 2, s. 1; Handy v. Johnson, 5 Md. 450; Richels v. State, 1 Sneed, Tenn. 606; State v. Crow, 1 Ired. No. C. 376; Woodruff v. Woodruff, 22 Ga. 237. Assaults are of two kinds, either simple or aggravated. A simple assault is one where there is no intention to do another distinct injury. An aggravated assault is one that, in addition to the base intention to commit it, has another object which is also criminal; for example, if a man should fire a pistol at another and miss him, the former would be guilty of an assault with intent to murder; so an assault with intent to rob a man, or with intent to spoil his clothes, and the like, are aggravated assaults, and they are more severely punished than simple assaults. 2214. A battery is the unlawful touching the person of another, either by the aggressor himself, or by any substance put in motion by him. The unlawfulness of the act may arise from a desire to do an injury to the person beaten, from anger or revenge, or from mere rudeness and insolence. A man may commit a battery for the purpose of committing an injury on another, and from whatever motive he has been actuated, the offence is complete; the law cannot dive into the mind of the aggressor to ascertain his motive; if the injury is committed, malice will be inferred, unless the aggressor can excuse or justify his conduct. The motive may be anger or revenge. When this is apparent, the least touch of the person of another will be considered an assault and battery, and the tort feasor will be guilty of a trespass. Rudeness alone may be the motive, and render the trespasser guilty of a battery, although the injury may be very slight indeed, provided the person injured has been touched. This term of rudeness is relative, and it is difficult to define it. Acts which one friend might do to another could not be justified by persons altogether unacquainted; persons moving in polished society could not be permitted to do to each other what boatmen, hostlers, and such persons might perhaps justify,10 because it might be fairly presumed in the case of the latter that an implied license had been given to commit such acts. which, if done by one gentleman toward a lady, might be considered as a battery, if done by one gentleman toward another would not be viewed in that light." An act An injury, therefore, be it ever so small, done to the person of another in an angry, revengeful, rude, or insolent manner, as by spitting in his face, violently jostling him, or knocking off his hat, is a battery.12 2215. But to make the battery unlawful it must be wilfully committed or proceed from want of due care, for otherwise it is damnum absque injuria, and the party aggrieved is without a remedy; as, if a horse run away, without any fault of the rider, go over another person and does him an injury, no action lies, because the injury is considered as proceeding, not from the man, but from the horse. But this is the case only where the rider is wholly without fault; for if he were riding furiously, or were otherwise in fault, he would be responsible. To excuse a trespass the accident must be unintentional, unavoidable, and without the least fault of the trespasser.13 In criminal cases it is a maxim that the act itself does not make a man guilty unless it be done with a criminal intent, actus non facit reum, nisi mens sit rea, but in civil matters it is otherwise; therefore, in an action of trespass for an assault and battery, where the defendant pleaded that the plaintiff and himself were soldiers at exercise, skirmishing with their muskets, and that in so doing 3 Sharswood, Blackst. Comm. 120. 10 See 2 Hagg. Eccl. 73. "Rex v. Nichol, Russ. & R. 130. 121 Hawkins, P. C. 263. But it is said that taking it off a person is no battery, 1 Saund. 14. 13 Jennings v. Fundeburg, 4 M'Cord, So. C. 161. the defendant, casualiter et per infortunium et contra voluntatem suam, in discharging his piece wounded the plaintiff; on demurrer the plea was held bad, for, say the court, a man shall not be excused a trespass except it has been committed utterly without his fault. The distinction is plainly marked between a case where the defendant has been in fault and where he has not; for, supposing in this case, instead of pleading the above plea, the defendant had pleaded that the plaintiff ran across his piece when he was in the act of discharging it, it would have appeared to the court that it was inevitable, and that the defendant had been guilty of no negligence.1 2216. A battery may produce various effects, which will now be explained: A bruise or a contusion is an injury done with violence to the person without breaking the skin. A wound is an injury to a person by which the skin is broken.15 A mayhem is the act of unlawfully and violently depriving another of the use of such of his members as may render him less able in fighting either to defend himself or annoy his adversary; and, therefore, the cutting, or disabling, or weakening a man's hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which abates his courage, is held to be a mayhem. But cutting off the nose or ear, or the like, are not held to be mayhems at common law, though they are grievous trespasses for which damages will be recovered. 2217. In all these cases the party attacked may defend himself, but he must not use this right beyond the just bounds of self-defence; and for the redress of these wrongs the law gives him an action of trespass. 2218. There are also injuries to the person, body, or limbs, which are occasioned by negligence or misfeasance; as, where the damage is sustained from leaving open trap doors or areas in public streets, or suffering a dangerous dog or other animal to go at large, or any injury arising from a similar cause. The remedy for such an injury is an action on the case. 16 2219. A battery may be justified for the public good, in the exercise of an office, in aid of an authority in law, or as a matter of defence. 2220. For the wise purpose of enforcing obedience of inferiors to superiors the law has invested the latter in many cases with the power of correction, which is the chastisement by one having authority of a person under his lawful power who has committed some offence for the purpose of bringing him to legal subjection. It is chiefly exercised in a parental manner by parents, or those who stand in loco parentis. A parent may therefore justify the correction of the child, either corporally or by confinement; and a schoolmaster, under whose care and instruction a parent has placed his child, may equally justify similar correction; but the correction in both cases must be moderate and in a proper manner, and for the good of the child. But if the parent or master have not acted in great violation of justice and propriety, their conduct will not be weighed in golden scales.17 For the same reason a master, who stands in loco parentis, may himself correct his apprentice for disobedience, but he cannot delegate his authority to another. A master has no right to correct his hired servants who are not his apprentices. Soldiers are bound to obey their superiors in all their lawful commands, and 14 Weaver v. Ward, Hob. 134. 15 Moriarty v. Brooks, 6 Carr. & P. 684. Vide Beck, Med. Jur. Ch. 15; Roscoe, Cr. Ev. 652. 16 Dilts v. Kinney, 3 Green, N. J. 130. "Comyn, Dig. Pleader, 3 M. 19; Hawkins, P. C. c. 60, 23, c. 62, § 2, c. 29, § 5. |