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First. Injuries to personal security. These are against their lives, their limbs, their bodics, their health, or their reputation. I. INJURY TO LIFE.
This will be treated of in a subsequent division. II.-III. INJURY TO LIMBS AND BODIES.
1. Threats. Menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone, without a consequent inconvenience, constitutes no injury. To complete the wrong, they must both exist. The remedy for this is in pecuniary damages, to be recovered by an action of trespass vi et armis.
2. Assault. An attempt or offer to beat another, without touching him, described as an unlawful setting upon one's person. This, also, is an inchoate violence, for which an action of trespass vi et armis for compensation in damages will lie.
3. Battery. 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. Every man's person is sacred, and no one should meddle with it. The Cornelian law distinguished verberation, which is accompanied with pain, from pulsation, which is attended with none. Battery in some cases is lawful, as where one having authority, as a parent or master, corrects a child, a scholar or an apprentice. So where the blow is one of selfdefence, occasioned by the assault of another.
4. Wounding. This is only an aggravated species of battery.
5. Mayhem. This a more atrocious injury, and consists in violently depriving another of the use of a member proper for his defence in a fight. This is a battery, attended with this aggravating circumstance, that thereby the party iujured is forever disabled from making so good a defence against future external injuries as heretofore. These defensive members are not only arms and legs, but a finger, an eye, a fore-tooth, and also some others. But the loss of a jàw-tooth, the ear or the nose, is not mayhem, for they are of no use in fighting. The remedial action of trespass vi et armis lies to recover damages for this injury, which no motive, except self-preservation, can
1 As whore one lifts his cane or his fist in a threatening manner at another, or strikes at him, but misses him.
justify. An English statute gives treble damages for the loss of an ear, though it is not mayhem.
Concurrent Remedies. For the last four causes indictment may be brought as well as an action, and frequently both are prosecuted, the one at the suit of the crown for the crime against the public, the other at the suit of the party injured for reparation in damages. IV. INJURY TO HEALTH.
When it Exists. This exists where, by any unwholesome practices of another, a man sustains any apparent damage to his health. 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 unskillful management of his physician, surgeon or apothecary. Malpractice is a grave misdemeanor, whether for experiment or by neglect.
Trespass on the case. There 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 is an universal remedy given for all personal injuries without force; so called, because the plaintiff's whole cause of complaint is set forth at length in the original writ. For though there are methods prescribed, and forms of action for redressing ordinary wrongs, in which the act itself is immediately injurious to person or property, as battery, non-payment of debts, detaining one's goods, and the like; yet, where any special consequential damages arise, which could not be foreseen and provided for in the ordinary courts of justice, the party injured is allowed to bring a special action.
Differs from Trespass vi et Armis, Wherever the common law gives a right or prohibits an injury, it also gives a remedy by action, and, therefore, when a new injury is done, a new method of remedy must be pursued. It is a settled distinction, that where an act is done which is in itself an immediate injury to another's person or property, the remedy is usually by 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 consequences and collaterately, there no action vi et armis will lie, but an action on the special case for damages. V. INJURIES TO REPUTATION.
1, Slander, Defined. This may be by malicious, scandalous, and slanderous words, tending to a man's damage and derogation. This may endanger a man in law, by impeaching him of some heinous crime, as to say that a man has poisoned another, or is perjured; or it may exclude him from society, as to charge him with having an infectious disease; or it may hurt his trade or livelihood, as to call him a bankrupt, a quack or a knave. Words spoken of a judge or other dignitary, are termed scandalum magnatum, and held to be still more heinous, though they might not be actionable in the case of a common person. They result in more injury.
Particular Damage, This offence is redressed by an action on the case, and now may be sustained without proving that any particular damage has happened, but merely upon the probability that it might happen. But with regard to words that do not on their face 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. Mere scurrility or opprobrious words, which neither import nor are in fact attended with any injurious effects, will not support an action. Temporal damage must ensue.
Harmless Words. Words of heat and passion, as to call a man a rogue or rascal, if productive of no ill consequence, and not of any of the dangerous species above mentioned, are not actionable; neither are words spoken in a friendly manner, as by way of advice or admonition, without ill-will, for that must be. maliciously spoken to be slander.
Justification, If the defendant be able to justify and prove the words to be true, no action will lie, even though spe.cial damage has ensued, for then it is no slander. If a man can prove that a party is bankrupt, a quack or a knave, as the case may be, this will destroy the respective actions, for though there may be damage from it, yet, if the fact be true, it is damnum absque injuria, and, where there is no injury, the law gives no remedy. This is similar to the reasoning of the civil law.
2, Libels, These may be printed or written. They may be pictures, signs, and the like, which set a man in an odious or ridiculous light, and thereby diminish his reputation. There are two remedies, one by indictment and another by action. The former for the public offence, for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it, which offence is the same in point of law, whether the matter contained be true or not, and, therefore, the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it in justification.
1 Thus to call a clergyman a bastard is not a cause for action, unless he can show some special loss by it, as the loss of his presentation to a benefice. So, to slander another man's title, ás to spread injurious reports, that, if true, would deprive him of his estate, is actionable, provided any special damage accrues to the proprietor thereby, as if he loses an opportunity to sell the land.
Justification. In the remedy by action on the case, which is to make reparation for the injury, the defendant may for words spoken, written or printed, justify the truth of the facts, and show that the plaintiff has received no injury. But as to signs and pictures, it seems requisite 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 if it does not appear that the picture referred to the plaintiff, he cannot recover.
3, Malicious Prosecution. Under the mask of justice and public spirit, private spite thus can be gratified. For this the law allows damages.
Proceedings. The action may be one of conspiracy, where there is more than one defendant, or by the more usual way, by a special action on the case for a false and malicious prosecution. In order to carry on the former, it is necessary for the plaintiff to obtain a record of his indictment and acquittal, but in prosecutions for felony, it is usual to deny a copy of the indictment, where there is the least probable cause on which to found a prosecution. It would be a hardship, if prosecutors, who have a tolerable ground of suspicion, were liable to be sued at law, whenever their indictments miscarried. But an action on the case may be founded on an indictment, wherein no acquittal can be had, as if it be rejected by a 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 the action is founded. However any probable cause for preferring it is sufficient to justify the defendant.
1 Under the English statute, and also in the United States, the defendant in any indictment may plead the truth of the matters charged, and justify its publication for good motives and for the public benefit. If this plea of justifi. cation be not sustained, the offence is usually aggravated.
Second. Injuries to personal liberty.
False Imprisonment. The law has decreed a punishment for this great crime, and has given a private reparation to the party. At the present, it removes the actual imprisonment, and after it is over, subjects the wrong doer to a civil action, on account of the damage sustained for the loss of time and liberty
What Constitutes, Two points are requisite: 1. The detention of the person. 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in jail or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. 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 the 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 the common law, or by 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 on the highways. It may arise by executing a lawful warrant or process on Sunday, which service is void.
Remedy, The remedy is of two sorts: the one removes the injury, the other makes satisfaction for it. The means of removal are fourfold :
1. Writ of Mainprize. This directs the sheriff, where the offence is bailable, to take sureties for the party's appearance. They are termed mainpernors.
2. Writ de Odio et Atia. This commanded a sheriff to inquire, whether a prisoner charged with murder was committed on just cause of suspicion, or for hatred and ill-will.
3, Writ de Homine Replegiando, It lies to replevy a man out of custody, on giving security to the sheriff, that he shall be forthcoming, when wanted.
4. Writ of Habeas Corpus, This is the most celebrated of writs, various kinds of which are made use of to remove prisoners from one court into another, for the more easy administration of justice. Such writs of habeas corpus are:
i These three writs are virtually obsolete.