Page images
PDF
EPUB

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

[blocks in formation]

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 derelquerit, 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 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.9

[*123

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;(f) 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.(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

founded on many antient statutes, (i) as well on behalf of the crown, to [*124 inflict the punishment of imprisonment on the slanderer, as on behalf of the party, to recover damages for the injury sustained.10 Words also tending to scandalize a magistrate, or person in a public trust, are reputed more highly breve. Teste meipso apud Westmonasterium," &c. Registr.

() 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 lasum 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 ocali prædicti totaliter amisit, ad damnum ipsius A. viginti librarum, ut dicit. Et habeas ibi nomina plegiorum et hoc

Brev. 105.

(*) See page 52.

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

() 11 Mod. 130. Lord Raym. 1402. Stra. 635.
() Finch, L. 185.
() Finch, L. 186.
(*) 1 Ventr. 60.

c. 11.

Westm. 1. 3 Edw. I. c. 34. 2 Ric. II. c. 5. 12 Ric. L..

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. awrence, the action must be trespass vi et armis. Neither will it vary the case that esides 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)(g) 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,(s) 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 a knave, and the divine a heretic, this will destroy their respective actions; for

(*) Lord Raym. 1369.

(4) 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.
(9) Page 29.

() Dyer, 285. Cro. Jac. 90.

+ Rep. 13.

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. and n. 1, American edition of 1843.-Wendell.

[ocr errors]

though there may be damage sufficient accruing from it, yet, if the fact be true, it is damnum absque injuria; and where there is no injury the law gives no remedy. And this is agreeable to the reasoning of the civil law:(t) eum qui nocentem infamat, non est æquum et bonum ob eam rem condemnari; delicta enim nocentium nota esse oportet et expedit."

A second way of affecting a man's reputation is by printed or written libels, pictures, signs, and the like; which set him in an odious or ridiculous(u) light, and thereby diminish his reputation. With regard to libels in general, there are, as in many other cases, two remedies: one by indictment, and the other by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the person libelled to break it: which offence is the same (in point of law) whether the matter contained be true or false; and therefore the defendant, on an indictment for publishing a [*126 libe!, is not allowed to allege the truth of it by way of justification.(w)12 But in the remedy by action on the case, which is to repair the party in damages for the injury done him, the defendant may, as for words spoken, justify the truth of the facts, and show that the plaintiff has received no injury at all.(x) What was said with regard to words spoken will also hold in every particular with regard to libels by writing or printing, and the civil actions consequent thereupon; but as to signs or pictures, it seems necessary always to show, by proper innuendoes and averments of the defendant's meaning, the import and application of the scandal, and that some special damage has followed; otherwise it cannot appear that such libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable consequences.13

A third way of destroying or injuring a man's reputation is by preferring malicious indictments or prosecutions against him; which, under the mask of justice and public spirit, are sometimes made the engines of private spite and enmity. For this, however, the law has given a very adequate remedy in damages, either by an action of conspiracy,(y) which cannot be brought but against two at the least; or, which is the more usual way, by a special action on the case

[blocks in formation]

"But now, by stat. 6 & 7 Vict. c. 96, s. 6, on the trial of any indictment or information for a libel, the defendant having pleaded such plea as therein mentioned, the truth of the matter charged may be inquired into, but shall not amount to a defence unless it was for the public benefit that the matter charged should be published. To entitle the defendant to give evidence of the truth of the matters charged as a defence to such indictment or information, it is necessary for the defendant, in pleading to the indictment or information, to allege the truth of the said matters, and also that it was for the public benefit that the matters charged should be published,—to which plea the prosecutor may reply generally; and if after such plea the defendant is convicted, the court may, in pronouncing sentence, consider whether the guilt of the defendant is aggravated or mitigated by the plea.-STEWART.

In an action of slander, the defendant was not allowed to give in evidence, in mitigation of damages, facts and circumstances which induced him to believe that the charges which he made were true, when such facts and circumstances tended to prove the charges or formed a link in the chain of evidence to establish a justification, though the defendant expressly disavowed a justification and fully admitted the falsity of the charges. Purple vs. Horton, 13 Wend. 9. Petrie vs. Rose, 5 Watts & Serg. 364. Regnier 18. Cabot, 2 Gilman, 34. Watson vs. Moore, 2 Cushing, 133. It has been since held, however, that the defendant may prove, in mitigation of damages, circumstances which induced him erroneously to make the charge complained of, and thereby rebut the presumption of malice, provided the evidence do not necessarily imply the truth of the charge or tend to prove it true. Minesinger vs. Kerr, 9 Barr. 312.-SHARSWOOD.

The printer or publisher, as well as the writer, is liable in an action for damages It is no defence that the printer did not know, or had no personal malice against, th party libelled, nor that he did not know of the publication, nor that the libel wa accompanied with the name of the author. Rundle vs. Meyer, 3 Yeates, 518. Dexter vs. Spear, 4 Mason, 115. Andre vs. Wells, 7 Johns. 260. Dole vs. Lyon, 10 Johns. 447. The publication in a newspaper of rumours is not justified by the fact that such rumours existed; but such fact is admissible in mitigation of damages. Skinner vs. Powers, 1 Wend. 451.-SHARSWOOD.

for a false and malicious prosecution. (2) In order to carry on the former, (which gives a recompense for the danger to which the party has been exposed,) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal; but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any the least probable cause to found such prosecution upon.(a) For it would be a very great discouragement to the public justice of the kingdom, if prosecutors, who had a tolerable ground of suspicion, were liable to be sued at law whenever their indictments miscarried. *127] *But an action on the case for a malicious prosecution may be founded upon an indictment whereon no acquittal can be had; as if it be rejected by the grand jury, or be coram non judice, or be insufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expense, upon which this action is founded. (b) However, any probable cause for preferring it is sufficient to justify the defendant.

II. We are next to consider the violation of the right of personal liberty. This is effected by the injury of false imprisonment," for which the law has not only decreed a punishment, as a heinous public crime, but has also given a private reparation to the party; as well by removing the actual confinement for the present, as, after it is over, by subjecting the wrong-doer to a civil action, on account of the damage sustained by the loss of time and liberty.

To constitute the injury of false imprisonment there are two points requisite: 1. The detention of the person; and, 2. The unlawfulness of such detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. (c)15 Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice, or from some warrant from legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; (d) or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of wagoners for misbe haviour in the public highways.(e) False imprisonment also may arise *128] by executing a lawful warrant or process at an *unlawful time, as on a Sunday (f) for the statute hath declared that such service or process shall bo void.16 This is the injury. Let us next see the remedy: which is of two sorts; the one removing the injury, the other making satisfaction for it.

(*) F. N. B. 116.

Carth. 421. Lord. Raym. 253.
() 10 Mod. 219, 220. Stra. 691.
(*) 2 Inst. 589.

(d) Ibid. 46.

(e) Stat. Geo. III. c. 78.
() Stat. Car. II. c. 7. Salk. 78. 5 Mod. 95.

"But the merely giving charge of a person to a peace-officer, not followed by any actual apprehension of the person, does not amount to an imprisonment, though the party to avoid it attend at a police-office, (1 Esp. Rep. 431. 2 New Rep. 211;) and in Gardner vs. Wedd and others, Easter Term, 1825, on a motion for a new trial, the court of Common Pleas held that the lifting up a person in his chair and carrying him out of the room in which he was sitting with others, and excluding him from the room, was not a false imprisonment so as to entitle the plaintiff to a verdict on a count for false imprisonment. The circumstance of an imprisonment being committed under a mistake constitutes no excuse. 3 Wils. 309. And it has been decided that if A. tell an officer who has a warrant against B. that his (A.'s) name is B., and thereupon the officer arrests A., it is false imprisonment, Moore, 457. Hardr. 323; but see 3 Camp. 108;) and this doctrine was overruled in a late case on the western circuit, on the principle volenti non fit injuriam, and that such a fraud upon legal proceedings cannot give a right of action.— CHITTY.

15 To constitute false imprisonment, it is not necessary that the person should be arrested or assaulted: if he is detained by threats of violence and prevented from going where he wishes by a reasonable apprehension of personal danger, it is sufficient. Johnson vs. Tompkins, 1 Baldwin, 571. Pike vs. Hanson, 9 New Hamp. 491. Smith vs. The State, 7 Humph. 43.-SHARSWOOD.

16 But the statute has excepted cases of treason, felony, and breach of the peace, in which the execution of a lawful warrant or process is allowed upon a Sunday -CHITTY

« PreviousContinue »