ments, in fee-fimple, fee-tail, or for term of life. By thefe actions formerly all difputes 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 fince introduced, by other actions perfonal and mixed.

MIXED actions are fuits partaking of the nature of the other two, wherein fome real property is demanded, and alfo perfonal damages for a wrong fuftained. As for instance, an action of wafte: which is brought by him who hath the inheritance, in remainder or reverfion, against the tenant for life, who hath committed waste therein, to recover not only the land wafted, which would make it merely a real aclion; but also treble damages, in pursuance of the statute of Gloucefter*, which is a perfonal recompence; and fo both, being joined together, denominate it a mixed action.

UNDER these three heads may every species of remedy by fuit or action in the courts of common law be comprized. But in order effectually to apply the remedy, it is firft neceffary to afcertain the complaint. I proceed therefore now to enumerate the feveral kinds, and to inquire into the refpective natures, of all private wrongs, or civil injuries, which may be offered to the rights of either a man's perfon or his property; recounting at the fame time the refpective remedies, which are furnished by the law for every infraction of right. But I must first beg leave to premife, that all civil injuries are of two kinds, the one without force or violence, as flander or breach of contract; the other coupled with force and violence, as batteries, or falfe imprifonment'. Which latter fpecies favour fomething of the criminal kind, being always attended with some violation of the peace; for which in ftrictness of law a fine ought to be paid to the king, as 1 Finch. L. 184.

k 6 Ed. I. c.
c. 5.

VOL. III.

K.

well

[120]

well as a private fatisfaction to the party injured ". And this diftinction of private wrongs, into injuries with and without force, we fhall find to run through all the variety of which we are now to treat. In confidering of which, I fhall follow the fame method that was pursued with regard to the diftribution of rights: for as thefe are nothing else but an infringement or breach of thofe rights, which we have before laid down and explained, it will follow that this negative fyftem of wrongs, must correspond and tally with the former pofitive system, of rights. As therefore we divided " all rights into thofe of perfons, and those of things, so we muft make the fame general diftribution of injuries into fuch as affect the rights of perfons, and such as affect the rights of property.

THE rights of perfons, we may remember, were distributed into abfolute and relative: abfolute, which were fuch as appertained and belonged to private men, confidered merely as individuals, or fingle perfons; and relative, which were incident to them as members of fociety, and connected to each other by various ties and relations. And the abfolute rights of each individual were defined to be the right of perfonal fecurity, the right of personal liberty, and the right of private property, so that the wrongs or injuries affecting them must confequently be of a correspondent 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 firft fubdivifion, or injuries affecting the life of man, they do not fall under our prefent contemplation; being one of the moft atrocious fpecies of crimes, the fubject of the next book of our commentaries.

2, 3. THE two next fpecies of injuries, affecting the limbs or bodies of individuals, I fhall confider in one and the fame view. And these may be committed, 1. By threats and me

Finch. L. 193. Jenk. Cent. 185.

See book I. ch. 1.

2

naces

naces of bodily hurt, through fear of which a man's bufinefs is interrupted. A menace alone, without a confequent inconvenience, makes not the injury; but, to complete the wrong, there must be both of them together. The remedy for this is in pecuniary damages, to be recovered by action of trefpafs vi et armis ; this being an inchoate, though not an abfolute violence. 2. By affault; which is an attempt or offer to beat another, without touching him as if one lifts up his cane, or his fift, in a threatening manner at another; or ftrikes at him, but miffes him; this is an affault, infultus, which Finch defcribes to be "an unlawful fetting upon. "one's perfon." This alfo is an inchoate violence, amounting confiderably higher than bare threats; and therefore, though no actual Tuffering is proved, yet the party injured may have redrefs by action of trefpafs vi et armis; wherein he fhall recover damages as a compenfation for the injury. 3. By battery which is the unlawful beating of another. The leaft touching of another's perfon 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 perfon being sacred, and no other having a right to meddle with it, in any the slightest manner. And therefore upon a fimilar principle the Cornelian law de injuriis prohibited pulfation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulfation, which was attended with none. But battery is, in fome cafes, justifiable or lawful; as where one who hath authority, a parent or master, gives moderate correction to his child, his fcholar, or his apprentice. So alfo on the principle of felf-defence: for if one ftrikes me firft, or even only affaults me, I may strike in my own defence; and, if fued for it, may plead fon affault demefne, or that it was the plaintiff's own original affault that occafioned it (1). So likewife in de- [121]

(1) But in any criminal profecution by indictment, or informa tion for an affault or battery, the defendant may plead the general

fence of my goods or poffeffion, if a man endeavours to deprive me of them, I may justify laying hands upon him to prevent him; and in cafe he perfifts with violence, I may proceed to beat him away. Thus too in the exercise 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 congregation. And, if fued for this or the like battery, he may fet forth the whole cafe, and plead that he laid hands upon him gently, molliter manus imposuit, for this purpose. On account of thefe caufes of juftification, battery is defined to be the unlawful beating of another; for which the remedy is, as for affault, by action of trespass vi et armis: wherein the jury will give adequate damages. 4. By wounding; which confifts in giving another fome dangerous hurt, and is only an aggravated fpecies of battery. 5. By mayhem which is an injury still more atrocious, and confifts in violently depriving another of the ufe of a member proper for his defence in fight. This is a battery attended with this aggravating circumftance, that thereby the party injured is for ever difabled from making fo good a defence against future external injuries, as he otherwife might have done. Among these defenfive members are reckoned not only arms and legs, but a finger, an eye, and a foretooth', and alfo fome others". But the lofs 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 fame remedial action of trefpafs vi et armis lies alfo to recover damages for this injury, an injury which (when wilful) no motive can juftify, but necef

iffue, and give in evidence that the perfon affaulted or beat was the first affailant, or that he first made an attack upon the defendant himself, his wife, his father, fon, matter, or perhaps, fervant, (fee p. 3. n. 1. ante); and, upon producing fatisfactory proof of this juftification, the defendant ought to be acquitted by the jury.

fary

fary self-prefervation (2). 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, affault, battery, wounding, and may- ́· hem, an indictment may be brought as well as an action, and frequently both are accordingly prosecuted; the one at the fuit of the crown for the crime against the public; the other at the fuit of the party injured, to make him a repara- [122] tion in damages.

4. INJURIES, affecting a man's health, are where by any unwholesome practices of another a man fuftains any apparent damage in his vigour or conftitution. As by felling him bad provisions or wine ; 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. For it hath been folemnly refolved, that mala praxis is a great misdemefnor and offence at common law, whether it be for curiofity and experiment, or by neglect; because it breaks the truft which the party had placed in his physician, and tends to the patient's deftruction. Thus alfo, in the civil law, neglect or want of skill in physicians or furgeons "culpae adnumerantur; veluti fi "medicus curationem dereliquerit, male quempiam fecuerit, aut

perperam ei medicamentum dederit." Thefe are wrongs or injuries unaccompanied by force, for which there is a remedy in damages by a special action of trefpafs, upon the cafe. This action, of trespass, or tranfgreffion, on the cafe,

w I Roll. Abr. 90.

X 9 Rep. 52. Hutt. 135.

y Lord Raym. 214.
2 Inft. 4. 3. 6. & 7.

(2) One remarkable property is peculiar to the action for a mayhem, viz. that the court in which the action is brought have a difcretionary power to increase the damages, if they think the jury at the trial have not been fufficiently liberal to the plaintiff; but this must be done fuper vifum vulneris, and upon proof that it is the fame wound, concerning which evidence was given to the jury. Wilf. 5. 1 Barnes. 106.