remedy in such case is generally of a somewhat peculiar and eccentrical

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 possible, or at least not an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault, or breach of contract, to which damages the party injured has acquired an incomplete or inchoate right, the instant he receives the injury, or has to complain of the breach of contract; though such right be not fully ascertained till damages are assessed by the intervention of the law. The mode whereby this remedy is obtained, is in general a*suit or action defined by the [*126] Mirror (a) to be "the lawful demand of one's right:" and a right of action is, according to Bracton and Fleta, using the words of Justinian (6) jus prosequendi in judicio quod alicui debetur.

The Romans early introduced set forms for actions and suits in their law, after the example of the Greeks; and made it a rule that each injury should be redressed by its proper remedy only. "Actiones," say the pandects, "compositæ sunt, quibus inter se homines disceptarent: quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt" (c). The forms of these actions were originally preserved in the books of the pontifical college, as choice and inestimable secrets; till one Cneius Flavius, the secretary of Appius Claudius, stole a copy and published them to the people (d). The concealment was ridiculous: but the establishment of some standard was undoubtedly necessary, to fix the true state of a question of right; lest in a long and arbitrary process it might be shifted continually, and be at length no longer discernible. Or, as Cicero expresses it (e), "sunt jura, sunt formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, ad quas privata lis accommodatur."

Three kinds of actions.

With us in England the several suits, or remedial instruments of justice, are distinguished into three kinds; actions personal, real, and mixed. A personal action is that whereby a man claims a debt, or seeks to recover damages for breach of contract, or of some personal duty: and likewise, whereby a man claims a satisfaction in damages for some wrong

Personal action. done to his person or property. The former is, in general, founded on contract, the latter upon tort, as in the Roman law we *read of "actiones in personam, quæ adversus eum intenduntur, qui ex [*127] contractu vel delicto obligatus est aliquid dare vel concedere" (f).

A real action was so called, because it concerned real property only: it is now of rare occurrence, by reason of enactments which will be hereafter noticed.

Real action.

(a) C. 2, s. 1.

(b) Inst. 4, 6, pr.

(c) Dig. 1, 2, 2, s. 6.

c. 41.

(d) Cic. pro Muræna, s. 11; De Orat. 1. 1,

(e) Pro Qu. Roscio, s. 8.

(f) Inst. 4, 6, 15.

A mixed action partakes of the nature of the other two, for therein some real property is demanded, and personal damages also may often be recovered.

Mixed action.

To one or other of the above three heads may every species of remedy by suit or action in a court of common law be referred. But in order effectually to apply the remedy, it is first necessary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to enquire into the respective natures of such private wrongs and breaches of contract as are of practical concern; for to enumerate every infraction of right would be impossible.

In treating this subject, I shall adopt the same method that was pursued with regard to the distribution of rights: for as wrongs 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, we divided (g) rights into those of persons, and those of things, so we must make the same general distribution of injuries into such as affect the rights of persons, and such as affect, directly or indirectly, the rights of property.

The rights of persons, we may remember, 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 (h). And the absolute rights of [*128] each individual were defined to be: I. The right of personal security: II. The right of personal liberty: and, III. The right of private property (i); so that the wrongs or injuries affecting them, must consequently be of a corresponding nature.

I. Injuries affecting personal

security.

I. Injuries which affect the personal security of an individual, are either against his life, his limbs, his body, his health, or his reputation.

1. With regard to injuries affecting the life of man, they do not, except as noticed at page 150, fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next volume of our Commentaries. (483)

1. Affecting life.

(g) Vol. i. chap. i.

(h) Vol. i. p. 147.

() Vol. i. p. 153.

(483) No civil action lies at common law for causing the death of a human being. Carey v. Berkshire R. R. Co., 1 Cush. (Mass.) 475; Ohio & M. R. R. Co. v. Tindall, 13 Ind. 366; Whitford v. Panama R. R. Co., 23 N. Y. (9 Smith) 465; Green v. Hudson River R. R. Co., 2 Abb. Ct. App. 277. But this rule has been modified by statute in England and in several of the States of the Union, so as to allow an action by the personal representatives of the deceased, for the benefit of the husband or widow and next of kin. See Hooper v. Gorham, 45 Me. 209; Green v. Hudson River R. R. Co., 2 Abb. Ct. App. 277, note; Carey v. Berkshire R. R. Co., 1 Cush. (Mass.) 366; Eden v. Lexington, etc., 14 B. Monr. (Ky.) 204; Hough v. New Orleans, etc., 6 La. Ann. 415; North v. Robinson, 44 Penn. St. 175; Chicago v. Major, 18 Ill. 349; Lyons v. Cleveland, etc., 7 Ohio St. 336; Whitford v. Panama, etc., R. R., 3 Bosw. 67.

2, 3. The two next species of injuries, affecting the limbs or bodies of individuals, I shall consider in one and the same view. And these may be com

2 & 3. Affecting the limbs or

body.

Assault.

mitted: (1.) 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 (k) describes to be "an unlawful setting upon one's person." This is an inchoate violence; and therefore, though no actual suffering be proved, yet the party injured may have redress by action of trespass; wherein he may recover dam

Battery.

ages as a compensation for the injury. (484) (2.) 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. (485) Battery is, however, in some cases, justifiable or lawful; 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[* 129] defence: for if one strikes me first; or even only assaults me, I may strike in my own defence; and, if sued for doing so, may plead son assault demesne, or that it was the plaintiff's own original assault that occasioned mine. 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 (1). (k) Finch, L. 202.

(7) 1 Finch, L. 203.

(484) It is not essential to constitute an assault, that there should be a direct attempt at violence (Hays v. People, 1 Hill, 351); but mere threats do not amount to an assault. Keyes v. Devlin, 3 E. D. Smith, 518; Smith v. State, 38 Miss. 521. The question, as to what constitutes an assault, is one of law, for determination by the court. See Handy v. Johnson, 5 Md. 450; Commonwealth v. Goodwin, 3 Cush. (Mass.) 154.

An offer to strike, beat, or commit any act by violence on the person of another, without actually doing it, or touching his person, is an assault. Johnson v. Tompkins, 1 Baldw. C. C. 571, 600; United States v. Hand, 2 Wash. C. C. 435. The gist of an assault is the intent to injure. Richels v. State, 1 Sneed (Tenn.), 606. It implies force upon one side, and want of assent upon the other. An assault upon a consenting party would be a legal absurdity. Duncan v. Commonwealth, 6 Dana (Ky.), 295; Smith v. State, 12 Ohio St. 466; but see Hays v. People, 1 Hill, 351.

Although no words of provocation will justify an assault, they may constitute a ground for the reduction of damages. Waters v. Brown, 3 A. K. Marsh. (Ky.) 559; Ireland v. Elliott, 5 Iowa, 478; Murray v. Boyne, 42 Mo. 472; State v. Wood, 1 Bay (S. C.), 351.

(485) Every battery includes an assault. Johnson v. State, 17 Tex. 515.

In an action for a simple assault and battery, the plaintiff, without alleging special damages, may give evidence of any damages naturally and necessarily resulting from the act complained of. O'Leary v. Rowan, 31 Mo. 117; Andrews v. Stone, 10 Minn. 72. For an unprovoked and aggravated assault exemplary damages may be given. Foote v. Nichols, 28 Ind. 486; see Mooney v. Kennett, 19 Mo. 551; Whitney v. Hitchcock, 4 Denio, 461; Gore v. Chadwick, 6 Dana (Ky.), 477.

An assault and battery may be justified in defense of real or personal property, but unless the assailant uses force in fact, not before a request to depart; and then the force used must be no more than is necessary under the circumstances. Gyre v. Culver, 47 Barb. 592; Baldwin v. Hayden, 6 Conn. 453; Commonwealth ▾ Goodwin, 3 Cush. (Mass.) 154; Dole v. Erskine, 35 N. H. 503; Hazel v. Clark, 3 Harr. (Del.) 22.

Thus too in the exercise of his office, a churchwarden or beadle may lay hands upon another to turn him out of church, and to prevent his disturbing the congregation (m). And if sued for this or the like battery, he may set forth the whole case, and plead that he laid hands upon the plaintiff gently, molliter manus imposuit, for such 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, wherein adequate damages are recoverable.

A battery may be aggravated by wounding or mayhem, which, according to its strict technical meaning, consists in violently depriving another of the use of a member proper for his defence in fight (n). Any bodily hurt, whether caused by direct violence, or resulting from negligence, is, if adequate ground of excuse or justification be wanting, actionable. The nature of such an injury will hereafter be sufficiently exemplified.

4. Affecting health.

[*130]

*

4. Injuries, affecting a man's health, may be constituted by selling him bad provisions (0), or wine (p); 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. Mala praxis, indeed, may constitute an offence at common law, whether it be for curiosity and experiment, or by neglect; and is especially reprehensible, because it breaks the trust which the party had placed in his physician, and tends to the patient's destruction (q). (486) Thus also, in the Roman law (r), neglect and want of skill in physicians or surgeons, "culpæ adnumerantur, veluti si medicus curationem dereliquerit, male quempiam secuerit aut perperam ei medicamentum dederit." The above are wrongs

(m) 1 Sid. 301. Burton v. Henson, 10 M. & W. 105.

(n) Finch, L. 204; 1 Hawk. P. C. 107. For assault, battery, wounding, or mayhem, an indictment may be brought, post, vol. iv., pp. 239, 240.

(0) See Burnby v. Bollett, 16 M. & W. 644.
(p) 1 Roll. Abr. 90.

(9) Lord Raym. 214; post.
(r) Inst. 4, 3, 6, & 7.

(486) The implied contract of a physician or surgeon is not to cure, but to treat the case with reasonable diligence and skill; and in judging of this degree of skill, regard is to be had to the advanced state of the profession at the time. McCandless v. Mc Wha, 22 Penn. St. 261. But see Smothers v. Hanks, 34 Iowa, 287. A physician who professes to be an expert in a specialty, and who is employed as such, must possess the education and skill, and must show the diligence of an expert in such specialty. See Wilmot v. Howard, 32 Vt. 447; Patten v. Wiggen, 15 Me. 594; Long v. Morrison, 14 Ind. 595; Wood v. Clapp, 4 Sneed (Tenn.), 65; Howard v. Grover, 28 Me. 97; Whart. on Neg., § 730. Thus, one holding himself out as a surgeon is liable as well for want of skill as for negligence; and the injured party may bring his action to recover for damages resulting from both, and recover on proving damages resulting from either. Carpenter v. Blake, 60 Barb. 488; see S. C., 50 N. Y. (5 Sick.) 696; Corsi v. Maretzek, 4 E. D. Smith, 1; Bournan v. Woods, 1 Iowa, 441. But, if the plaintiff shows no injury resulting from negligence, or want of due skill in the defendant, he will not be entitled to recover even nominal damages. Craig v. Chambers, 17 Ohio St. 253. So it is the duty of a patient to co-operate with his professional adviser, and to conform to the necessary prescriptions; and, if he will not, or under the pressure of pain cannot, he has no right to hold his surgeon responsible for his own neglect. McCandless v. Mc Wha, 22 Penn. St. 261; S. C., 25 id. 95. See Hibbard v. Thompson, 109 Mass. 288; Leighton v. Sargeant, 7 Fost. (N. H.) 460.

A dentist is required to use a reasonable degree of care and skill in his professional operations. The exercise of the highest perfection of his art is not implied in his professional contract. Simonds v. Henry, 39 Me. 155.

or injuries unaccompanied by force, for each of which there is a remedy in damages by action on the case, a remedy available for a personal wrong or injury without force. In very early times methods were prescribed, and forms of actions 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 a debt, detaining one's goods or the like; and where any special consequential damage arose, which could not be foreseen and provided for in the ordinary course of justice, the party injured was allowed, both at common law and by 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 (s). For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action (t); and therefore, wherever a new injury is done, a new method of remedy must be pursued. And it is a settled distinction, that where an act is done which is in itself an immediate injury to another's person, there the remedy is usually by an action of trespass; 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 * will lie, but an action on the special case, for damages consequent [*131] on such omission or act (u). (487)

5. Affecting reputation. 1st. slander.

5. Lastly, injuries affecting a man's reputation or good name may be constituted, 1st, 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 crime, as to say that a man has poisoned another, or is perjured (x); or which may exclude him from society, as to charge him with having an infectious disease (y), or which may impair or hurt his trade, profession, or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave (z). 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 (a). But too great encouragement being given by this lenity to false and malicious slanders, 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, or may impair his trade or profession,) an action on the case will lie, without proving any particular damage to have happened. 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, and any defamatory or disparaging words producing damage are actionable. If I that such a clergyman is a bastard, he cannot for this bring any action

say

(8) Ante, p. 30.

(t) Ashby v. White, 2 Lord Raym. 953. (u) Compare Ashby v. White, supra; Scott v. Shepherd, 2 W. Bl. 892; Chapman v. Pickersgill, 2 Wils. 146; per Ashhurst, J., Pasley

v. Freeman, 3 T. R. 63; Winsmore v. Greenbank, Willes, 577.

(x) Finch, L. 185.

(y) Com. Dig. Act. Def. (D. 28).
(2) Finch, L. 186.

(a) 2 Ventr. 28.

(487) See Codman v. Evans, 7 Allen (Mass), 431; Ray v. Sellers, 1 Duv. (Ky.) 254; Webb v. R., W. & O. R. R. Co., 49 N. Y. (4 Sick.) 420; S. C., 10 Am. Rep. 389; Murphy v. N. Y., etc., 30 Conn. 187; Chiles v. Drake, 2 Metc. (Ky.) 146; Panton v. Holland, 17 Johns. 92.