are justified in all their acts for such obedience; on the other hand, they are liable to punishment for disobedience, and therefore a superior may inflict correction on them, and unless the punishment has been unlawful, he will be justified. In order to maintain discipline in the national navy, as well as in the vessels of individuals, the law invests the captains of vessels with authority to reduce sailors to obedience.18 Any excess of correction by the parent, master, officer, or captain, may render the party guilty of an assault and battery, and liable to all the consequences of such an unlawful act.19 2221. An assault and battery may be justified when committed to preserve the peace; and, therefore, if the plaintiff assaults or is fighting with another, the defendant may lay hands upon him and restrain him until his anger is cooled, but he cannot strike him in order to protect the party assailed, as he may in self-defence.20 2222. Watchmen may arrest and detain in prison for examination persons walking in the streets by night whom there is a reasonable ground to suspect of a felony, although there is no proof of a felony having been committed.2 2223. Any person has a right to arrest another to prevent a felony; for example, to prevent him from murdering his wife. 2224. Any person may arrest one who has actually committed a felony. 2225. The distinction between peace officers and private persons, in regard to the right to arrest without warrant for felony, is this: a peace officer is justified if he has reasonable grounds for suspicion, whether the person arrested is guilty or not; a private person arrests at his peril, and is justified only in case the person arrested is actually guilty. 2226. It is lawful for any man to lay hands on another to preserve public decorum; as, to turn a person out of church, or to prevent him from disturbing a religious congregation or a funeral ceremony. But a request to desist should first be made, unless the urgent necessity of the case dispenses with it. 2227. Watchmen, we have seen, may arrest suspicious persons at night, and they will be justified. 2228. A constable is authorized by law to arrest any one who, in his view, has committed a breach of the peace, and take him before a magistrate; but if an offence has been committed out of the constable's sight, he cannot arrest without a warrant, unless the offence amounts to a felony, or a felony is likely to ensue. 23 2229. A ministerial officer, whose duty it is to execute the process of a court, or tribunal of competent jurisdiction, will be justified in its execution, whether the process be regular or irregular; but if the court have no jurisdiction, he will be a trespasser; and when the process is wholly illegal or misapplied, as to the person intended to be arrested, without regard to any question of fact, or whether innocent or guilty, or the existence of any debt, then the party imprisoned may legally resist the arrest and imprisonment, and may escape, or be 18 Abbott, Shipp. 160; 1 Chitty, Pr. 73; Turner's Case, 1 Ware, Dist. Ct. 83; 1 Pet. Adm. 168. By Act of Congress of Sept. 28, 1850, flogging in the navy and on board vessels of commerce has been abolished. 9 Stat. 515. 19 Hannen v. Edes, 15 Mass. 347. 20 2 Rolle, Abr. 359 (E), pl. 3. The right of third persons, private persons, in such cases extends only to directing a peace officer to take the party committing the breach into custody. Such third person is guilty of a battery if he lay hands on him himself. Phillips v. Trull, 11 Johns. N. Y. 486. 21 Lawrence v. Hedger, 3 Taunt. 14; see Rex v. Bootie, 1 Burr. 164. 22 Clever v. Hynde, 1 Mod. 168; see Hall v. Planner, 2 Kebl. 124. 23 Codrington v. Lloyd, 8 Ad. & E. 449. rescued, or break prison, because he is not, in point of law, subject to any arrest; 24 as, where process was issued against an ambassador to cause him to be arrested, the writ and proceedings are void for want of jurisdiction in the court, or by reason of the privilege of the defendant, which privilege he cannot waive.25 2230. A justice of the peace may in general justify all acts for which a constable would be justified, when acting without a warrant. 2231. Every person is empowered to restrain breaches of the peace by virtue of the authority vested in him by law. 2232. It may be justified by a man in defence of himself, his wife, his child, or servant; so likewise the wife may justify a battery in defence of her husband; the child of its parent; the servant of his master.26 In these cases, the party need not wait until a blow has been given, for then he might be too late, and disabled from warding off a second, or effectually protecting the person assailed. Care, however, must be taken that the battery transgress not the bounds of necessary defence and protection, for it is only permitted as a means of averting an impending evil, which might otherwise overwhelm the party, and not a punishment or retaliation for the injurious attempt. The degree of force necessary to repel an assault will naturally depend upon, and be proportioned to, the violence of the assailant; but with this limitation any degree is justifiable. 27 2233. A battery may also be justified in the necessary defence of one's property. Some rules, however, must be observed, in order not to violate the law. If the plaintiff is in the act of entering peaceably into the defendant's land, or having entered, he is doing no violence, he must be requested to depart before. any attempt is made to eject him; if he refuses, then, and not till then, the defendant may lay hands gently upon the plaintiff to remove him from the close, and for this purpose he may use, if necessary, any violence short of striking the plaintiff. If the plaintiff resists the defendant, the latter may oppose force to force.2 28 But if the plaintiff is in the act of entering upon the land for an unlawful purpose, or having entered is discovered in the act of unlawfully subverting the soil, cutting down a tree, and the like, a previous request is unnecessary, and the defendant may instantly lay hands upon the plaintiff, for the time employed in requesting him to desist would add to the destruction of the property.29 A man may also justify a battery in defence of his personal property, without a previous request, if another attempt to take away such property out of his possession; and in case of a felonious attempt to deprive him of his property, he may use any force to prevent it.31 30 2234. A menace or threat is a malicious declaration of an intention to do an injury unlawfully to another; such as sending a threatening letter to another, and informing him that unless he does certain things the writer will commit an injury to his person, his relative rights, or his property. This is a misdemeanor, 241 Chitty, Pr. 637. 25 United States v. Benner, 1 Baldw. C. C. 235, 240; see Nichols v. Thomas, 4 Mass. 232; Pearce v. Atwood, 13 id. 324. 26 Orton v. State, 4 Greene, Iowa, 140. 27 Brown v. Gordon, 1 Gray, Mass. 182; O'Leary v. Rowan, 31 Mo. 117; Rogers v. Waite, 44 Me. 275; Doll v. Erskine, 35 N. H. 503; Philbrick v. Foster, 4 Ind. 442. 28 Weaver v. Bush, 8 Term, 78; Commonwealth v. Clark, 2 Metc. Mass. 23. 29 Weaver v. Bush, 8 Term, 78. 30 Green v. Goddard, 2 Salk. 641. 31 Abusive and insulting language is not a justification of an assault, although it may be proved in mitigation of damages, if it immediately precedes the assault so as to furnish a natural provocation. Ireland v. Elliott, 5 Iowa, 478; Gaither v. Blowers, 11 Md. 536. 32 for which the party aggrieved may cause the wrong doer to give security to keep the peace. If the person menaced should sustain any pecuniary loss by such threat, or suffer any special damages, he may have an action on the case against the wrong doer.33 2235. Private injuries affecting a man's health arise upon a breach of contract, either express or implied, or in consequence of some tortious act unconnected with a contract. 2236. Those injuries to health which arise upon a contract are, The misconduct of medical men, when, through neglect, ignorance, or wanton experiments, they injure their patients. There are three kinds of mal-practice for which an action will lie, and sometimes an indictment can also be sustained; these are, Wilful mal-practice, which takes place when the physician wilfully administers medicines, or performs an operation unlawfully, which he knows and expects will result in danger or death to the individual under his care: as, in the case of a criminal abortion. Negligent mal-practice, which comprehends those cases where there is no criminal or dishonest object, but gross negligence of that attention which the patient requires; as, if a physician should administer injurious medicines while in a state of intoxication. Ignorant mal-practice, which is the administration of medicines, calculated to do injury, which do harm, and which well-educated and scientific medical men would know were not proper in the case.3 34 The sale of unwholesome food. Though the law does not in general consider a sale a warranty of goodness of a personal chattel, it is otherwise with regard to food or liquors when sold for consumption. 35 2237. Those injuries which affect a man's health, and which arise from tortious acts unconnected with contracts, are, First. Public and private nuisances. A nuisance is any thing which unlawfully and tortiously does hurt, or causes inconvenience or damage. Nuisances are either public or private. A public or common nuisance is such an inconvenience or troublesome offence as annoys the whole community in general, and not merely some particular person. To constitute a public nuisance there must be such a number of persons annoyed that the offence can no longer be considered a private nuisance; this is a fact which generally is to be found by the jury. It is difficult to define what degree of annoyance is necessary to constitute a nuisance. In relation to offensive trades, it seems that when such trade renders the enjoyment of life and property uncomfortable it is a nuisance, for the people of the neighborhood have a right to pure and fresh air.37 32 Hawkins, P. C. B. 1, c. 53, s. 1; 2 Russell, Cr. 575; 2 Chitty, Cr. Law, 841; 4 Sharswood, Blackst. Comm. 126. 83 See Comyn, Dig. Battery, D; Viner, Abr.; Bacon, Abr. Assault. 84 Grannis v. Branden, 5 Day, Conn. 260; 9 Conn. 209; 1 Saund. 312, n. 2. A physician is liable for the exercise of ordinary care and skill, not the highest kind of skill. Wood v. Clapp, 4 Sneed, Tenn. 65; Leighton v. Sargent, 27 N. H. 460; McCandless v. McWha, 22 Penn. St. 261; Simonds v. Henry, 39 Me. 155; West v. Martin, 31 Mo. 375. 35 1 Rolle, Abr. 90, pl. 1, 2. 36 1 Hawkins, P. C. 197; 4 Sharswood, Blackst. Comm. 166, 167. 37 A distillery where hogs are fed on the offal, rendering the waters of a creek unwholesome, and the vapors making a dwelling-house uninhabitable, is a nuisance. Smith v. M'Conathy, 11 Mo. 517; a livery stable in a city, Coker v. Birge, 10 Ga. 336; a powder magazine, Cheatham v. Shearon, 1 Swan, Tenn. 213; a tenement-house filthy and calculated to breed disease, Meeker v. Van Rensselaer, 15 Wend. N. Y. 397; a furious dog at large is a common nuisance, and may be killed by any one, Brown v. Carpenter, 26 Vt. 638; Maxwell v. Palmerton, 21 Wend. N. Y. 407. VOL. I.-4 A 601 A thing may be a public nuisance in one place which is not so in another; therefore the situation or locality of the nuisance must be considered. A tallow chandler setting up his business among other tallow chandlers, and thereby increasing the noxious smell of the neighborhood, is not guilty of setting up a nuisance, unless the annoyance is much increased by the new manufactory.38 Such an establishment might be a nuisance in a thickly populated town of merchants and mechanics, where no such business was carried on. A private nuisance is any thing unlawfully and tortiously done to the hurt or annoyance of the person, or of the lands, tenements, or hereditaments of another.39 Where the injured party has sustained special damages, he may maintain an action for the loss he has sustained either by a public or private nuisance. Second. On principle, it would seem that if a person's health be injured by a sudden frightening, as by a person wilfully assuming the appearance of a ghost, or doing any other act on purpose to terrify others, whose nerves are thereby injured, an action would lie for the consequences.40 38 Rex v. Neville, Peake 91. 30 3 Sharswood, Blackst. Comm. 215; Finch, Law. 188. 602 CHAPTER II. LIBEL AND SLANDER. 2238. Injuries to reputation. 2240-2250. Libel. 2241. The mode of conveying the libel. 2242. What kind of defamation is libellous. 2247. When the truth is a justification. 2250. The remedy for a libel. 2251-2263. Slander. 2252-2254. The nature of actionable words. 2253. Words actionable in themselves. 2254. Words actionable in consequence of special damage. 2255. The falsity of the slander. 2257. The certainty of the slander. 2258. The mode of publication. 2261. When slanderous words may be justified. 2262. The malice or motive of the slander. 2263. The remedy for slander. 2238. The law protects every man in his social intercourse, in his property, in his marriage, and, lastly, in any office he may hold; and the diminution of any of these rights by any false representation, either verbal or written, of the party who enjoys them is an injury to him. In selecting those among his fellow creatures in whom either to repose his interest or his affections, every one will naturally discard all whom he suspects or believes to be unworthy of trust. The acquaintance which each man has with the characters of other men can be but limited, and, most usually, he derives his information in this particular from others. Should their report of any individual, however unfounded in truth, be unfavorable, though it may not operate conviction on his mind, it will engender distrust; for it can hardly be imagined that it is wholly a malicious falsehood. Men are not inclined to take the trouble to ascertain the truth or falsehood of statements made in relation to others, but when a man is so disposed, he has not, perhaps, an opportunity of examining the matter, nor is he able to disprove the charge to his own satisfaction, and trace its falsehood through all the varieties of knavery that produced it; so that should the party accused be in possession of his confidence or esteem, or become at any future time a candidate for either, he will naturally reject his claim in the one case and renounce him in the other. Hence it is that a charge or accusation which imports that a man is unfit for society, for his profession or his trade, for the marriage state, or for his situation of public trust, is likely to raise a suspicion or belief that he is really incapacitated, and thereby to cut off or diminish his means of attaining to, or, if already in possession, is likely to |