And

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 (4). 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 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 [*121] 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 (s). 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 (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 for ever 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 jawteeth, 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 (5). If the

(r) Ff. 47. 10. 5.

(s) 1 Finch. L. 203. (t) 1 Sid. 301.

(4) Com. Dig. Battery, A. Bac. Ab. 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. I Saund. 29. b. n. 1. Id. 13 & 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 injuriâ, and the party aggrieved is without remedy, 3 Wils. 303. Bac. Ab. 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. Plowd. 19. But if a person uninten

134.

(u) Finch. L. 204.
(v) 1 Hawk. P. C. 111.

tionally 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.

(5) 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.

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 [*122] injured, to make him a reparation in damages (6).

4. Injuries, affecting a man's health (7), 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 (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 misdemeanor 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 physicians or surgeons, "culpæ adnumerantur, veluti si medicus curationem dereliquerit, male

(w) 1 Roll. Abr. 90.

(z) 9 Rep. 32. Hutt. 135.

Barnes, 106. 153. 3 Salkeld, 115. 1 Ld. Raym. 176. 339.

(6) 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 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 Prac. 8 ed.

998.

In New-York, the plaintiff in an action for assault and battery, false inprisonment, slanderous words, or libel, if he sues in the supreme court, and recovers no more than 50 dollars, can have no more costs than damages: but if he sues in the common pleas, he recovers full costs. 2 R. S. 613, § 6. Id. 614, § 12.

(7) 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, 4. Reg. Brevium, 205, 6. 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 physi

(y) Lord Raym. 214.
(z) Inst. 4. 3. 6, & 7.

cians.

Com. Dig. tit. Physician; Vin. Ab. tit. Physician. According to Hawkins, P. C. if any person, not duly authorized to practice, 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. Ab. 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. Ab. 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 af ford 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 cousequent injury must be stated to have been the deprivation of lights and air, which are considered as conducive to health. Peake, 91. Com. Dig. tit. Action on the Case for a Nuisauce. As to ancient light 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. Ab. Action on the Case; 1 Salk. 15, 16.

In New-York, physicians are entitled to sue for their fees. See note* p. 28 ante.

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 an 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 [*123] debts, detaining one's goods, or the like; yet where *any special consequential damage arises, which could not be foreseen and 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 (8).

5. Lastly; injuries affecting a man's reputation or good name are, first, by malicious, scandalous, and slanderous words (9), tending to his damage

(a) For example: “Rex vicecomiti salutem, Si A fecerit the securum de clamore suo prosequendo, tunc pone par 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 laesum bene et competenter curandum apud S. pro quadam pecu niae summa prae manibus soluta assumpsisset, idem B curam suam circa oculum praedictum tam negli genter et improvidè apposuit, quod idem A defectu

(8) The Revised Statutes of New-York seem to allow the action of trespass on the case to be brought in all cases where trespass may be brought, except for trespass on lands. (2 R. S. 553, ◊ 16).

(9) As to actions for verbal slander and libels in general, see Bac. Ab. Libel, and tit. Slander; Com. Dig. Action upon the Case for Defamation, and tit. Libel; Vin. Ab. tit. Libel; Selw. N. P. Libel, and tit. Slander; Holt, George, Starkie, and Mence's Treatises on Slander, and 2 Starkie on Evidence, 844 to 883; and as to indictment for libels, see post, 4 book, 150.

With respect to an imputation of the guilt of some offence punishable in the temporal courts, as an infamous crime, or punishable with imprisonment; the accusation must be precise, or have such an allusion to some prior transaction, that the hearers of the slander must necessarily have understood that the slanderer meant to impute the plaintiff's guilt

ipsius B visum oculi praedicti totaliter amisit, ad damnum ipsius A viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc breve. Teste meipso apud Westmonasterium, &c." (Registr. Brev. 105.)

(b) See page 52.

(c) 1 Salk. 20. 6 Mod. 54.
(d) Cro. Jac. 478.

(e) 11 Mod. 130. Lord Raym. 1402. Stra. 635.

of some punishable offence; for though the rule of construing words in mitiori sensu is now exploded, (5 East, 463. Fitzg. 253. Bui. N. P. 4. 10 Mod. 198), yet an innuendo or construction cannot be given to words which they do not necessarily import, either of themselves, independently of any other circumstances, or with necessary reference, or some other circumstances occurring at the time of the accusation. 6 T. R. 691. 4 Co. 17. b. 11 Mod. 99. 4 Esp. N. P. 218. 8 East, 427. On this account it is not actionable to call a person "villain," " cheat," "rascal," "swindler," or "rogue," or to say he is "forsworn," without a colloquium of some proceeding in a court of justice, in which the party had been examined on oath. 6 T. R. 691. 2 H. Bla. 531. 2 Wils. 404. 87. 8 East, 428. 1 Bos. & Pul. 331. 2 Saund. 307. 4 Co. 15. b. 2 Ventr. 28. 2 Buls. 150. Holt's Law of Libel, 176. As to this point, see Com. Dig. tit. Libel. Fitzg. 121. 253. The law does not

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 impeach

consider these latter words as necessarily im-
puting the guilt of a crime punishable by the
temporal courts. So the term "forsworn"
does not, in legal consideration, necessarily
import perjury or false swearing in a regular
judicial proceeding, and consequently does
not necessarily impute to the party the guilt
of having committed a punishable crime.
T. R. 694. 4 Co. 15. 2 Bulst. 150. Holt's
Law of Libel, 176.

6

But if either of the above expressions, not actionable in themselves, be accompanied by any other circumstances tending to throw the imputation of a punishable crime on the party accused, and be so understood by the hearers, they are actionable. 6 T. R. 694. So, on the other hand, words prima facie importing a charge or guilt, as to call a person "thief," may be qualified by the expressions and other circumstances, evincing that the accuser did not mean to insinuate that the party had been guilty of such crime, and in that case no action will be sustainable; as, if the words be "you are a thief," for "you stole my tree," the stealing of which is not felony; or where the witnesses called to prove the slander, admit that they do not believe the defendant meant to jempute that the plaintiff had been guilty of felony. Cro. Jac. 114. B. N. P. 5. Peake, N. P. 4. 4 Co. 19. Stra. 142. 2 Esp. R. 218. 2 New. R. 335.

The accusation of a mere intent, propensity, or inclination to commit a crime, &c. is not actionable, because it only imputes an inchoate immorality, and not the actual commission of a crime for which the party accused could be punished. 4 Co. Rep. 16. b. 18. b. 4 Esp. R. 219. Cro. Jac. 158. 1 Rol. Ab. 41. Freem. 46. 7 Taunt. 431. 4 Price, 46. But an accusation of seducing another to commit a crime, as subornation of perjury, is actionable, 1 Rol. Ab. 41; or of soliciting a servant to steal, 3 Wils. 186. 2 East, 5; but see Salk. 696.

A verbal imputation of the breach of any moral virtue, duty, or obligation, such as chastity, piety, &c. (which, though it may depreciate a person in the opinion of society, and subject him to censure in the ecclesiastical court, does not expose him to punishment in the temporal courts), is not actionable, 4 Taunt. 355; though if in writing, it will be otherwise, 3 Wils. 187. Com. Dig. tit. Action on the Case for Defamation, F. 20; and the party aggrieved must resort to the ecclesiastieal courts for redress, which courts were established for reformation of morals, and have an exclusive jurisdiction over the punishments of fornication, &c. Therefore in accusations of such offences, as could not endanger the party in the temporal courts, the judges, professing not to be acquainted with the extent of the jurisdiction of the ecclesiastical courts, considered it most expedient to refer the party to those courts for redress. 2 Salk. 692. 2 Stra. 946. 1 Lev. 49. 7 Mod. 78. But when the accusation is partly of an offence punish able in the ecclesiastical courts, and partly in VOL. II.

the temporal, or where special damage has been sustained, the latter courts have the exclusive jurisdiction, and will afford redress for the entire slander. 2 T. R. 473. 4 Co. Rep. 20. a. b. Sid. 214. 1 Lev. 134. Rol. Ab. 34. 4 T. R. 16. b. Cro. Jac. 163. 12 Mod. 248. Ld. Raym. 809. Vent. 220. 3 Lev. 193. Stra.

545. 55.

2. With respect to the Imputation of having a contagious Disorder.-Man being formed for society, and standing in almost constant need of the advice, comfort, and assistance of his fellow-creatures, it is highly reasonable that any words which import the charge of having a contagious distemper, should be in themselves actionable, because all prudent persons will avoid the company of a person having such a distemper. Bac. Ab. Slander, B. Com. Dig. Action on the Case for Defamation, D. 28. 2 Wils. 403, 4. The mere accusation of having had a disease, is not actionable, because it alludes to a past disease. 2 T. R. 473, 4. 2 Stra. 1189. As to particular disreputable disorders, see Cro. Eliz. 289. Hob. 5. 219. Rol. M. 43. 2 T. R. 473. 1 Saund. 248. n. 3. Bac. Ab. tit. Slander.

3. As to Slander affecting a Person in his Office or Trust.-When profit or emolument is attached to them, any words which directly impute an unfitness, either in respect of morals or inability to discharge the duty of the office, are actionable. 1 Salk. 695.698. Rol. Ab. 65. 2 Esp. 500. 5 Rep. 125. 1 Stra. 617. 2 Ld. Raym. 1369. 4 Rep. 16. a. Bull. N. P. 4. But in an office merely honorary, to which no profit, &c. is attached, a verbal accusation of incapacity, &c. is not actionable. 5 Co. Rep. 125. 4 Rep. 16. a.

Salk. 695. 8. 1 Rol. Ab. 65. 2 Esp. 500. 3 Wils. 177. 1 Mal. Ent. 244. In an office of trust and emolument, an imputation of an intent or inclination to commit a criminal breach of duty, is actionable, which is an exception to the before-mentioned rule. Salk. 695. 1 Stra. 617. 2 Ld. Raym. 1369. 1480. 4 Rep. 16. a. 3 Wils. 177. 2 Saund. 307; see Cro. Jac. 339. b. 1. 9. Bull. N. P. 5. Holt's Law of Libel, 197. A verbal imputation, that the plaintiff gave to the commissioners of the admiralty 2001. for a warrant to be purser of a man-of-war, would be actionable, as imputing a corruption of a public trust, and a crime in tempting to corruption. 5 Burr. 2699.

4. As to Slander affecting a Person in his Trade, Profession, or Occupation.-Words which impute the want of integrity or capaci ty, whether mental or pecuniary, in the conduct of a profession, trade, &c. in which the party is engaged, are actionable. 1 Mal. Ent. 244. Thus an action will lie for accusing a clergyman of incontinence, &c. for which he may be deprived, 4 Co. 17; or a barrister, attorney, or artist, of inability, inattention, or want of integrity, 3 Wils. 187. 2 Bla. R. 750; as to say of an attorney, "what, does he pretend to be a lawyer? he is no more a lawyer than the devil," 3 Wils. 59. 7 Moore, 200. 3 Bro. & B. 297. 3 B. & A. 702; or a 15

ing him of some heinous crime, as to say that a man hath poisoned another, or is perjured (f); or which may exclude him from society, as to

(f) Finch. L. 185.

The Revised Statutes of New-York require both actions of slander to be brought in two years. (2 R. S. 296, § 20.)