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.(0) The remedy for this is in pecuniary damages, to be recovered by action of trespass vi et armis ;(p) this being an inchoate, though not an absolute, violence. 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(g) describes to be "an unlawful setting 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. 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. And therefore upon a similar principle the Cornelian law de injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation, which was attended with none.(r) But battery is, in some cases, justifiable or lawful; as where one who hath authority, a parent, or master, gives moderate correc tion 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 *121] 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.(s) Thus too in the exercise : (0) Finch, L. 202. P) Regist. 104. 27 Ass. 11. 7 Edw. IV. 24. (9) Finch, L. 202. () Ff. 47, 10, 5. If the menace be not actionable alone, but only in conjunction with the injurious consequence, it seems contrary to principle that the remedy should be by trespass vi et armis, and not by trespass on the case. On examination, none of the authorities cited for the position satisfactorily bear it out; and, in the same book of Edw. IV. 21, one of the same judges (Choke) says, Si home fait a moy manace en ma person come d'emprisoner ou de maimer, jeo avera action sur mon case.— -COLERIDGE. 4 See, in general, Com. Dig. Battery, C. Bac. Abr. Assault and Battery, A. An assault is an attempt or offer, accompanied by a degree of violence, to commit some bodily harm, by any means calculated to produce the end if carried into execution. Levelling a gun at another within a distance from which, supposing it to have been loaded, the contents might wound, is an assault. Bac. Abr. Assault, A. Abusive words alone cannot constitute an assault, and indeed may sometimes so explain the aggressor's intent as to prevent an act prima facie an assault from amounting to such an injury; as where a man, during assize-time, in a threatening posture, half drew his sword from its scabbard, and said, "If it were not that it is assize-time, I would run you through the body," this was held to be no assault, the words explaining that the party did not mean any immediate injury. 1 Mod. 3. 3 Bul. N. P. 15. Vin. Abr. Trespass, A. 2. The intention as well as the act constitute an assault. 1 Mod. 3, case 13. Assault for money won at play is particularly punishable by 9 Anne, c. 14. 4 East, 174.-CHITTY. 5 Com. Dig. Battery, A. Bac. Abr. Assault and Battery, B. A battery is any unlawful touching the person of another by the aggressor himself, or any other substance put in motion by him. 1 Saund. 29, b., n. 1. Id 13 and 14, n. 3. Taking a hat off the head of another is no battery. 1 Saund. 14. It must be either wilfully committed, or proceed from want of due care, (Stra. 596. Hob. 134. Plowd. 19,) otherwise it is damnum absque injuria, and the party aggrieved is without remedy, (3 Wils. 303. Bac. Abr. Assault and Battery, B.;) but the absence of intention to commit the injury constitutes no excuse where there has been a want of due care. Stra. 596. Hob. 134. Plowd. 19. But if a person unintentionally push against a person in the street, or if without any default in the rider a horse runs away and goes against another, no action lies. 4 Mod. 405. Every battery includes an assault, (Co. Litt. 253;) and the plaintiff may recover for the assault only, though he declares for an assault and battery. 4 Mod. 405.-CHITTY. of an office, as that of church-warden or beadle, a man may lay hands upon another to turn him out of church, and prevent his disturbing the congrega tion.(t) 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 of trespass vi et armis: wherein the jury will give adequate 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. This is a battery attended with this aggravating circumstance, that thereby the party injured is forever disabled from making so good a defence 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,(u) and also some others. (v) 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 wilful) no motive can justify but necessary self-preservation. If the ear be cut off, treble damages are given by statute 37 Hen. VIII. c. 6, though this is not mayhem at common law. 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, and frequently both are accordingly prosecuted, the one at the suit of the crown for the crime against the public, the *other at the suit of the party injured, to make him a reparation in damages." () 1 Sid. 301. () Finch, L. 204. () 1 Hawk. P. C. 11. [*122 This is expressed with great correctness and caution: it is not intended to convey the notion that no mayhem can be justified under the plea of son assault demesne, except where that assault threatened the life of the party, but that no mayhem can be justified except under such circumstances, if it was wilful and deliberate. In the case of Cockroft vs. Smith, stated in 1 Lord Raym. 177, and reported in Salkeld, 642, and 11 Mod. 43, the plaintiff had either tilted up the form on which the defendant was sitting, or run his finger towards his eye, and the defendant immediately bit off his finger: son assault demesne was held to be a good plea; and lord Holt there laid down the principle thus:"If A. strike B. and B. strike again, and they close immediately, and in the scuffle B. mayhems A., that is son assault; but if, upon a little blow given by A. to B., B. gives him a blow that mayhems him, that is not son assault demesne." To this Powell, J., agreed. It seems that the party must always intend to act in self-defence, which intention is to be collected from the circumstances, in the blow which he gives to the plaintiff.—COLE RIDGE. - Son assault demesne is a good defence to an indictment for mayhem; but the defence can only be sustained by proof that the resistance was in proportion to the injury offered. Hayden vs. The State, 4 Blackford, 546. Any thing attached to the person partakes of its inviolability. A blow on the skirt of one's coat, when upon his person, is an assault and battery. So of striking one's cane while in his hand. Respublica vs. Longchamps, 1 Dall. 114. State vs. Davis, 1 Hill, 46. So to strike the horse which a person is riding or driving is an assault. De Marentille vs. Oliver, 1 Pennington, 380. No words of provocation will justify an assault, although they may constitute a ground for the reduction of damages. Cushman vs. Ryan, 1 Story, 91. SHARSWOOD. One remarkable property is peculiar to the action for a mayhem,-viz., that the court in which the action is brought have a discretionary power to increase the damages, if they think the jury at the trial have not been sufficiently liberal to the plaintiff; but this must be done super visum vulneris, and upon proof that it is the same wound concerning which evidence was given to the jury. 1 Wils. 5. Barnes, 106, 153. 3 Salkeld, 115. 1 Ld. Raym. 176, 339.-CHRISTIAN. The party injured may proceed by indictment and by action at the same time, and the court will not compel him to stay proceedings in either. 1 Bos. & P. 191. But in general the adoption of both proceedings is considered vexatious, and will induce the jury to give smaller damages in the action. The legislature has discouraged actions for trifling injuries of this nature, by enacting that in all actions of trespass for assault and 4. Injuries affecting a man's health are where, by any unwholesome prac tices of another, a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions, or wine ;(w) by the exercise of a noisome trade, which infects the air in his neighbourhood;(x) or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved,(y) that mala praxis is a great misdemeanour and offence at common law, whether it be for curiosity and experiment, or by neglect; because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction. Thus, also, in the civil law, (2) neglect or want of skill in battery, in case the jury should find a verdict for damages under forty shillings, the plaintiff shall have no more costs than damages, unless the judge at the trial shall certify that an assault and battery was sufficiently proved. See constructions on the statute, Tidd's Prac. 8 ed. 998.-CHITTY. The injuries affecting the person above mentioned are all in their nature direct. There are others which do not come within any of the above definitions, and which may in contradistinction be termed consequential, as resulting occasionally, although not necessarily, from wrongful acts or neglects. The personal injuries which may be considered consequential only are such generally as arise from the neglect or default of others in the performance of the duties they have undertaken to discharge. 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, (Lynch vs. Hurdin, 1 2 B. 29,) 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. Gordon vs. Rolt, 4 Exc. 365. Consequential injuries may also be sustained from a bull, ram, monkey, or other animal being left at large or not properly taken care of, (Jackson vs. Smithson, 15 M. & W. 563. May vs. Burdett, 9 Q. B. 101,) and the owner will in such case be liable to the party injured. The owner must, however, be shown to have been aware of the mischievous propensities of the animal before he can be made liable, (Hudson vs. Roberts, 6 Exc. 497;) and if the party injured have imprudently exposed himself, he cannot maintain an action. Cattlin vs. Hills, 8 C. B. 115.-KERR. The law implies a contract on the part of a medical man, as well as those of other professions, to discharge their duty in a skilful and attentive manner; and the law will grant redress to the party injured by their neglect or ignorance, by an action on the case, as for a tortious misconduct. 1 Saund. 312, n. 2. 1 Ld. Raym. 213, 214. Reg. Brevium, 205, 206. 2 Wils. 359. 8 East, 348. And in that case the surgeon could not recover any fees. Peake, C. N. P. 59. See 2 New Rep. 136. But in the case of a physician whose profession is honorary, he is not liable to an action, (Peake, C. N. P. 96, 123. 4 T. R. 317,) though he may be punished by the college of physicians. Com. Dig. tit. Physician. Vin. Abr. tit. Physician. According to Hawkins, P. C., if any person, not duly authorized to practise, undertake to cure, and should kill his patient, he is guilty of felony, though clergyable. And such person so employed cannot recover in an action for the medicines supplied. See 55 Geo. III. c. 194. However, if the party employ a person as surgeon, knowing him not to be one, he has no civil remedy. 1 Hen. B. 161. Bac. Abr. Action on the Case, F. 2 Wils. 359. Reg. Brev. 105. 8 East, 348. Though the law does not in general imply a warranty as to the goodness and quality of any personal chattel, it is otherwise with regard to food and liquors, in which, especially in the case of a publican, the law implies a warranty. 1 Roll. Abr. 90, pl. 1, 2. 2 East, 314. With regard to private nuisances, it is particularly observable that the law regards the health of the individual, though it will not afford a remedy for malicious and ill-natured acts tending to destroy the beauty of situation, such as stopping a prospect, &c. 9 Co. 58, b. In complaining of a nuisance in stopping ancient lights, &c., the consequent injury must be stated to have been the deprivation of light and air, which are considered as conducive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nuisance. As to ancient lights in general, see ante. Public Nuisance.-With respect to the injuries to health, as a consequence of a public nuisance, it seems that if the injury be attributable to the inhabitants of a county, no action is sustainable. 2 T. R. 667. 9 Co. 112, b., 117, a. But if the special injury be occasioned by an individual, an action lies. Bac. Abr. Action on the Case. 1 Salk 15, 16.-CHITTY physicians or surgeons, "culpæ adnumerantur, veluti si medicus curationem dereliquerit, male quempian secuerit, aut perperam ei medicamentum dederit." 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. (a) 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 [*123 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 a writ formed according to the peculiar circumstances of his own particular grievance. (b) For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action ; (c) and, therefore, wherever a new injury is done, a new method of remedy must be pursued. (d) And it is a settled distinction, (e) 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." 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;(ƒ) or which may exclude him from society, as to charge him with having an infec tious 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.(g) Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, are held to be still more heinous :(h) and though they be such as would not be actionable in the case of a common person, yet when spoken in disgrace of such high and respectable characters, they amount to an atrocious injury: *which is redressed by an action on the case [*124 founded on many antient statutes, (i) as well on behalf of the crown, to inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained. Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly (*) For example: "Rex vicecomiti salutem, Si A. fecerit le securum de clamore suo prosequendo, tunc pone per vadium et salvos plegios B. quod sit coram justitiariis nostris apud Westmonasterium in octabis sancti Michaelis, ostensurus quare cum idem B. ad dextrum oculum ipsius A. casualiter la sum bene et competenter curandum apud S. pro quadam pecuniæ summa præ manibus soluta assumpsisset, idem B. curam suam circa oculum prædictum tam negligenter et improvide apposuit, quod idem A. defectu ipsius B. visum wuli prædicti totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc See the author's celebrated judgment in the case of Scott vs. Shepherd, 2 Bl. Rep. 892, the principle of which has been since repeatedly recognised. No distinction arises from the lawfulness or unlawfulness of the act. If one turning round suddenly were to knock another down, whom he did not see, without intending it, no doubt, said Mr. J. Lawrence, the action must be trespass vi et armis. Neither will it vary the case that besides the immediate injury there is an ulterior consequential injury; for it is the former on which the action is supported: the latter is merely in aggravation of the damages. Leame vs. Bray, 3 East's Rep. 593.-COLERIDGE. 10 This action or public prosecution (for it partakes of both) for scandalum magnatum is totally different from the action of slander in the case of common persons. The scandalum magnatum is reduced to no rule or certain definition, but it may be whatever the injurious than when spoken of a private man.(k) 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.(1) 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. As if I say that such a clergyman is a bastard, he cannot for this bring any action against me, unless he can show some special loss by it; in which case he may bring his action against me for saying he was a bastard, per quod he lost the presentation to such a living. (m) 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.(n) But 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 *125] *man heretic or adulterer, are cognizable only in the ecclesiastical court;(0) unless any temporal damage ensues, which may be a foundation for a per quod. Words of heat and passion, as to call a man a 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 circumstance of ill will: for, in both these cases, they are not maliciously spoken, which is part of the definition of slander.(p) Neither (as was formerly hinted) (q) are any reflecting words made use of in legal proceedings, and pertinent to the cause in hand, a sufficient cause of action for slander.(r)" Also, if the defendant be able to justify, and prove the words to be true, no action will lie,(8) 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 • knave, and the divine a heretic, this will destroy their respective actions; for (*) Lord Raym. 1369. (1) 2 Ventr. 28. m) 4 Rep. 17. 1 Lev. 248. (*) Cro. Jac. 213. Cro. Eliz. 197. () Noy. 64. 1 Freem. 277. (P) Finch, L. 186. 1 Lev. 82. Cro. Jac. 91. () Dyer, 285. Cro. Jac. 90. courts in their discretion shall judge to be derogatory to the high character of the person of whom it was spoken: as it was held to be scandalum magnatum to say of a peer, "he was no more to be valued than a dog;" which words would have been perfectly harmless if uttered of any inferior person. Bull. N. P. 4. This action is now seldom resorted to. By the two first statutes upon which it is founded, (3 Edw. I. c. 34 and 2 Ric. II. st. 2, c. 5,) the defendant may be imprisoned till he produces the first author of the scandal. Hence probably is the origin of the vulgar notion that a person who has propagated slander may be compelled to give up his author.-CHITTY. 11 And now, by stat. 6 & 7 Vict. c. 96, (amended by stat. 8 & 9 Vict. c. 75,) in any action for defamation, the offer of an apology is admissible in evidence in mitigation of damages, and in an action against a newspaper for libel the defendant may plead that it was inserted without malice.-STEWARt. It seems that in this country evidence of this nature has been deemed by the courts admissible in mitigation of damages without waiting for the interference of the legis lature. See the language of the court in Larned vs. Buffinton, 3 Mass. R. 546, as qualified in Alderman vs. French, 1 Pick. 19. See, also, what was said by Chief-Justice Savage in Mapes vs. Weeks, 4 Wendell, 663, and the intimation of Nelson, C. J., in Hotchkiss vs. Oliphant, 2 Hill, 515, that a withdrawal or recantation of the charges by way of atonement would be admissible in evidence in mitigation of damages. See, also, Stark'e on Slander, vol. ii. p. 99, n. a. an 1 n. 1, American edition of 1843.-WENDELL. |