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be shown; in which case the rule is discharged, the writ issues, or
the party applying for it is directed to declare in prohibition. In the
latter event the party seeking the intervention of the court must
set out the proceedings in the court below to which he objects, and
after trial of facts disputed, or argument as to the law involved, as
in the case of an ordinary action, judgment is given that the writ of
prohibition do or do not issue.
When issued there is no course open
to the parties but obedience, which will, if necessary, be enforced
by attachment.

Thus careful has the law been, in compelling the inferior courts to do ample and speedy justice; in preventing them from transgressing their due bounds; and in allowing them the undisturbed cognizance of such causes as by right properly belong to their jurisdiction,

CHAPTER V.

OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS
OF PERSONS.

Injuries affecting personal security: viz., injuries to life; injuries affecting
limbs or body; threats, assault, battery, &c.-Injuries affecting health:
nuisances. Injuries affecting reputation: viz., libel, slander, and malicious
prosecution.-Injuries affecting personal liberty: false imprisonment;
Habeas corpus, its history; action for damages.-Injuries affecting re
lative rights of persons ;—of husband; adultery;—of parent; abduction;
action for seduction ;-of guardian ;-of master and servant,

I COME now to consider more particularly the respective remedies obtainable in the courts of law and equity, for private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. I shall, first, define the several injuries cognizable by the courts of common law, with the remedies applicable to each particular injury, pointing out in what cases relief may be more appropriately sought in the Court of Chancery: and secondly, describe the method of pursuing and obtaining these remedies in these several courts. And in dealing with the first branch of my inquiry, I shall confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject: reserving such injuries as may occur between the crown and the subject to be separately considered hereafter, as the remedy in such cases is generally of a peculiar nature.

Now, since all wrong may be considered as merely a privation of right, the plain natural remedy for every species of wrong is the

being put in possession of that right, whereof the party injured is deprived. This may either be effected by a specific delivery or restoration of the subject-matter in dispute to the legal owner; as when lands or personal chattels are unjustly withheld or invaded: or, where that is not a possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages: as in case of assault, breach of contract, &c.: to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury, though such right be not fully ascertained till these damages are assessed by the intervention of the law. The instruments whereby this remedy is obtained, are a diversity of suits and actions, which have always been distinguished into three kinds; actions personal, real, and mixed.

Of

Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof: and likewise, whereby a man claims damages for some injury done to his person or property. the former nature are all actions for debts; of the latter all actions for trespasses, assaults, and the like. Real actions, which concern real property only, are such whereby the plaintiff claims title to lands. These had all, upwards of a century ago, become generally disused, upon account of the great nicety required in their management, and the inconvenient length of their process: and with three exceptions, dower, right of dower, and quare impedit, have since been abolished. Mixed actions were suits partaking of the nature of the other two, wherein some real property was demanded, and also personal damages for a wrong sustained. One form of the modern action of ejectment, that in which a landlord recovers possession from a tenant whose rent is in arrear, and at the same time damages equal in amount to the arrears, may be said to partake of the nature of a mixed action.

Under these three heads may every species of remedy by action be comprised. But in order to apply the remedy, it is necessary to ascertain the complaint. I proceed therefore now to enumerate the several kinds of private wrongs which may be offered to the rights of either a man's person or his property; recounting at the same time the respective remedies, which are furnished for every infraction of right; and in doing so, I shall follow the same method that was pursued with regard to the distribution of rights: for as these are nothing else but an infringement or breach of those rights, which we have before laid down and explained, it will follow that this negative system, of wrongs, must correspond and tally with the former positive system, of rights. As, therefore, all rights were divided into those of persons, and those of things, so the same general

distribution of injuries must be made into such as affect the rights of persons, and such as affect the rights of property.

The rights of persons were distributed into absolute and relative: absolute, which were such as appertained and belonged to private men, considered merely as individuals, or single persons; and relative, which were incident to them as members of society, and connected to each other by various ties and relations.

And the absolute rights of each individual were defined to be the right of personal security, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must consequently be of a corresponding nature.

I. As to injuries which affect the personal security of individuals, they are either injuries against their lives, their limbs, their bodies, their health, or their reputations.

1. Injuries affecting the life of man, constitute one of the most atrocious species of crimes, and are considered in the next book of these commentaries; but, until recently, could not be made the subject of complaint in a civil suit. The wife or husband of a person who had been killed, could not recover any pecuniary compensation for his or her loss, until the law was altered by the statute 9 & 10 Vict. c. 93. But an action now lies for the benefit of the wife, husband, parent, or child of the deceased. And the jury may direct, in what proportion the damages shall be divided among those for whose benefit the suit is brought.

2, 3. Injuries affecting the limbs or bodies of individuals, I shall consider in one view. And these may be committed-1. By threats and menaces of bodily hurt, through fear of which a man's business is interrupted. Here the party menaced may either apply to a magistrate, to have the offender bound over in recognizances to keep the peace; or he may sue for damages in a civil action. 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, and, though no actual suffering is proved, yet the party injured may have redress by action for damages as a compensation for the injury. 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; as where one who has authority, a parent or master, gives moderate correction to his child,

his scholar, or his apprentice. So also on the principle of self-defence, for if one strikes me first, or even only assaults me, I may strike in my own defence; 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 defence of my goods or possession: if a man endeavours 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. Thus, too, in the exercise of an office, as that of churchwarden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congregation. And, if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. 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 for damages. 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 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 defence in fight. The same remedial action lies to recover damages for this injury, an injury which, when wilful, no motive can justify but necessary self-preservation.

The injuries affecting the person, which I have mentioned, are all in their nature direct. There are others which may, in contradistinction, be termed consequential, as resulting from wrongful acts or neglects. Thus, if a passenger is injured by the want of care of the driver of a coach, or a person sustains an injury owing to the negligence of a carman, the owner of the coach in the first case, the carman's master in the second, will be liable in an action for damages; for it was the duty of the owner and master in each case to employ careful servants. If, on the other hand, the driver or the carman did the injury wilfully, even if in the master's service, he, and not the owner or master, will be liable. Consequential injuries may also be sustained from a bull, ram, monkey, or other animal being left at large, or not properly taken care of; and the owner will in such case be liable to the party injured, provided he can be shown to have been aware of the mischievous propensities of the animal. But if the party injured have imprudently exposed himself, or by his own negligence have conduced to the accident, he cannot maintain an action.

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

neighbourhood; or by the neglect or unskilful management of his physician, surgeon, or apothecary. The remedy is by action for damages; and in some cases, as in that of nuisances, the party injured may proceed by complaint to the local authorities, or by indict

ment.

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 has 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 injurious than when spoken of a private man.

With regard to words, however, that do not thus upon the face of them, import such defamation as will 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. As if I say of an agent that he is an unprincipled man, he cannot for this bring any action against me, unless he can show some special loss by it, as that it was said to a person about to employ him, but who in consequence did not do so; in which case he may bring his action against me for saying he was an unprincipled man, per quod he lost the profits of the intended employment. Mere scurrility, or 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, will not afford ground for an action; 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 a 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, with

*It is actionable to say of a man, "he is a thief;" it is not actionable to say, "he is a thief, because he has stolen a cat," the stealing of a cat not being a felony.

† Words spoken in derogation of a peer, a judge, or other great officer of the realm, are called scandalum magnatum, and were formerly held to be more heinous. It was held to be scandalum magnatum to say of a peer, "he was no more to be valued than a dog;" words which would have been perfectly harmless if uttered of any other person.

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