CHAPTER VIII. OF WRONGS, AND THEIR REMEDIES, RESPECTING THE RIGHTS OF PERSONS. *THE former chapters of this part of our commentaries having been em[*115 ployed in describing the several methods of redressing private wrongs, either by the mere act of the parties, or the mere operation of law; and in treating of the nature and several species of courts; together with the cognizance of wrongs or injuries by private or special tribunals, and the public ecclesiastical, military, and maritime jurisdictions of this kingdom; I come now to consider at large, and in a more particular manner, the respective remedies, in the public and general courts of common law, for injuries or private wrongs of any denomination whatsoever, not exclusively appropriated to any of the former tribunals. And herein I shall, first, define the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury; and shall, secondly, describe the method of pursuing and obtaining these remedies in the several courts. First, then, as to the several injuries cognizable by the courts of common law, with the respective remedies applicable to each particular injury. And, in treating of these, I shall at present confine myself to such wrongs as may be committed in the mutual intercourse between subject and subject; which the king, as the fountain of justice, is officially bound to redress in the ordinary forms of law: : reserving such *injuries or encroachments as may occur between the crown and the subject, to be distinctly considered hereafter, as the [*116 remedy in such cases is generally of a peculiar and eccentrical nature. Now, since all wrongs 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, (a) though such right be not fully ascertained till they are assessed by the intervention of the law. The instruments whereby this remedy is obtained (which are sometimes considered in the light of the remedy itself) are a diversity of suits and actions, which are defined by the Mirror(b) to be "the lawful demand of one's right;" or, as Bracton and Fleta express it, in the words of Justinian,(c) jus prosequendi in judicio quod alicui debetur. The Romans introduced, pretty early, 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, "composita sunt, quibus inter se homines disceptarent: quas actiones, ne populus prout vellet institueret, certas solennesque esse voluerunt."(d) 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.(e) The *concealment was ridicu[*117 lous; 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,(f) "sunt jura, sunt formula, de omnibus rebus constitutæ, ne quis aut in genere injuriæ, aut in ratione actionis, errare possit. Expressæ enim sunt ex uniuscujusque damno, dolore, incommodo, calamitate, injuria, publicæ a prætore formulæ, ad quas privata lis accommodatur." And in the same manner our Bracton, speaking of the original writs upon which all our actions are founded, declares them to be fixed and immutable, unless by authority of parliament.(g) And all the modern legislators of Europe have found it expedient, from the same reasons, to fall into the same or a similar method. With us in England the several suits, or remedial instruments of justice, are from the subject of them distinguished into three kinds: actions personal, real, and mixed. Personal actions are such whereby a man claims a debt, or personal duty, or damages in lieu thereof; and, likewise, whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are said to be founded on contracts, the latter upon torts or wrongs; and they are the same which the civil law calls "actiones in personam, quæ adversus eum intenduntur, qui ex contractu vel delicto obligatus est aliquid dare vel concedere."(h) of the former nature are all actions upon debt or promises; of the latter, all actions for trespasses, nuisances, assaults, defamatory words, and the like. Real actions, (or, as they are called in the Mirror,(i) feodal actions,) which concern real property only, are such whereby the plaintiff, here called the demandant, claims title to have any lands or tenements, rents, commons, or other *hereditaments, in fee-simple, fee-tail, or for term of life. By these ac*118] tions formerly all disputes concerning real estates were decided; but they are now pretty generally laid aside in practice, upon account of the great nicety required in their management, and the inconvenient length of their process a much more expeditious method of trying titles being since introduced, by other actions personal and mixed. Mixed actions are suits partaking of the nature of the other two, wherein some real property is demanded, and also personal damages for a wrong sustained. As for instance an action of waste: which is brought by him who hath the inheritance in remainder or reversion, against the tenant for life who hath committed waste therein, to recover not only the land wasted, which would make it merely a real action; but also treble damages, in pursuance of the statute of Gloucester,(k) which is a personal recompense; and so both, being joined together, denominate it a mixed action.1 Under these three heads may every species of remedy by suit or action in the courts of common law be comprised. 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 inquire into the respective nature, of all private wrongs, or civil injuries, 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 by the law for every infraction of right. But I must first beg leave to premise that all civil injuries are of two kinds, the one without force or violence, as slander or breach of contract; the other coupled with force and violence, as batteries or false imprisonment.(7) Which latter species savour something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought *119] to be paid to the king, as well as a private satisfaction to the party injured (m) And this distinction of private wrongs, into injuries with and without force, we shall find to run through all the variety of which we are now to treat. In considering of which, 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 (9) Sunt quædam brevia formata super certis casibus de cursu, et de communi consilio totius regni approbata et concessa, quæ quidem nullatenus mutari poterint absque consensu et voluntate eorum. L. 5, de exceptionibus, c. 17, ? 2. (*) Inst. 4, 6, 15. (1) C. 2, 86. (*) 6 Edw. I. c. 5. (m) Finch, L. 198. Jenk. Cent. 185. 1 Real actions, with the exception of three,-dower, right of dower, and quare impedit,-were entirely abolished by stat. 3 & 4 W. IV. c. 27, s. 36. All mixed actions, with one exception, the action of ejectment,-were abolished by the same statute. The action of ejectment thus preserved has now, by the Common-Law Procedure Act, 1852, been also swept away, and a new procedure or action of ejectment substituted in its place.STEWART. 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 divide(n) all 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 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. 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. With regard to the first subdivision, or injuries affecting the life of man, they do not fall under our present contemplation; being one of the most atrocious species of crimes, the subject of the next book of our commentaries. *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 (") See book i. ch. 1. [*120 ? For injury to life, in general, cannot be the subject of a civil action, the civil remedy being merged in the offence to the public. Therefore an action will lie for battery of wife or servant, whereby death ensued. Styles, 347. 1 Lev. 247. Yelv. 89, 90. 1 Lord 339. The remedy is by indictment for murder, or, formerly, by appeal, which the wife might have for killing her husband, provided she married not again before or pending her appeal; or the heir male for the death of his ancestor, and which differed principally from an indictment in respect of its not being in the power of the king to pardon the offender without the appellor's consent. See post, 4 book, 312, 6. 5 Burr. 2643. But appeals of murder, treason, felony, and other offences were abolished by 59 Geo. III. c. 46, s. 1. In general, all felonies suspend the civil remedies, (Styles, 346, 347;) and before conviction of the offender there is no remedy against him at law or in equity, (id. ibid. 17 Ves. 331;) but after conviction and punishment on an indictment of the party for stealing, the party robbed may support trespass or trover against the offender. Styles, 347. Latch. 144. Sir Wm. Jones, 147. 1 Lev. 247. Bro. Abr. tit. Trespass. And after an acquittal of the defendant upon an indictment for a felonious assault upon a party by stabbing him, the latter may maintain trespass to recover damages for the civil injury, if it be not shown that he colluded in procuring such acquittal. 12 East, 409. In some cases, by express enactment, the civil remedy is not affected by the criminality of the offender. Thus it is provided by 52 Geo. III. c. 63, s. 5, that where bankers, &c. have been guilty of embezzlement, they may be prosecuted, but the civil remedy shall not be affected. The 21 Hen. VIII. c. 11 directs that goods stolen shall be restored to the owner upon certain conditions,—namely, that he shall give or produce evidence against the felons, and that the felon be prosecuted to conviction thereon. Upon performance of these, the right of the owner, which was before suspended, becomes perfect and absolute; but he cannot recover the value from a person who purchased them in market overt and sold them again before the conviction of the felon, notwithstanding the owner gave such person notice of the robbery while they were in his possession; but he must proceed against the original felon, or against the person who has the chattel in his possession at the time of the conviction. 2 T. R. 750. And the above act does not extend to goods obtained by false pretences. 5 T. R. 175. See, further, 1 Chitty's Crim. L. 5.-CHITTY. By the common law, the wife or husband, parent or child, of the party killed, cannot recover any pecuniary compensation for the injury sustained by the death of the relative, (Baker vs. Bolton, I Camp. 493;) and this was the law till the stat. 9 & 10 Vict. c. 93 enacted that whenever the death of a person shall be caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled the party injured to maintain an action for damages, the person who would have been liable to such action may be sued by the executor or administrator for the benefit of the wife, husband, parent, or child of the person deceased. The jury, in any such action, may give damages proportionable to the injury resulting from the death, to be divided among the parties for whose benefit the action is brought, in shares as the jury shall direct. Blake 8. Midland Railway Company, 21 L. J. R. 233, Q. B. S. C. 18 Ad. & El. 93.—Stewart. 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(q) 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 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 *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. (4) 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. 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 upo 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 counding; 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 |