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ments, in fee-simple, fee-tail, or for term of life. By these actions 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 fome 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 Gloucesterk, which is a personal recompence; and so 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 first neces. Tary to ascertain the complaint. I proceed therefore now to enumerate the several kinds, and to inquire into the respective natures, 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 Nander or breach of contract; the other coupled with force and violence, as batteries, or false imprisonment'. Which latter species favour something of the criminal kind, being always attended with some violation of the peace; for which in strictness of law a fine ought to be paid to the king, as k 6 Ed. I. c. 5.
i Fi.ch. L. 134. VOL. III.
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 down and explained, it will follow that this negative system of wrongs, must correspond and tally with the former positive fyftem, of rights. As therefore we divided 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 perfonal 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 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 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.
[ 120 ) 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 committed, 1. By threats and me
m. Finch. L. 193. Jenk. Cent. 185. See book I. ch. 1,
naces of bodily hurt, through fear of which a man's businefs 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. 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 fift, in a threatening manner at another; or strikes at him, but miffes him; this is an assault, infultus, which Finch 9 describes to be “ an unlawful setting upon “ one's person.” This also is an inchoate violence, amounting conGiderably higher than bare threats ; and therefore, though no actual Tuffering is proved, yet the party injured may have redress by action of trespass vi et armis; wherein he shall recover damages as a compenfation 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 des grees 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 fimilar 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'. 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 afsaults me, I may strike in my own defence; and, if sued for it, may plead fon assault demesne, or that it was the plaintiff's own original affault that occasioned it (1). So likewise in de- 121
fence o Finch, L. 202.
9 Finch. L. 202. p Regist. 104. 27 As: 11. 7 Edw. Ff. 47. 10. 5.
(1) But in any criminal prosecution by indictment, or informa. tion for an assault or battery, the defendant may plead the general K 2
fence 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'. 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 congregations. 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 impofuit, 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', and also fome others 4. 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 necela
issue, and give in evidence that the person assaulted or beat was the firft assailant, or that he first made an attack upon the defendant himself, his wife, his father, son, malter, or perhaps, servant, (see p. 3. n. 1. ante); and, upon producing satisface tory proof of this justification, the defendant ought to be ac. quitted by the jury.
sary felf-preservation (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, afsault, battery, wounding, and may-· hem, an indictment may be brought as well as an actions 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 reparar ( 122 ) tion in damages.
4. INJURIES, affecting a man's health, 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 *; or by the neglect or unskilful management of his physician, surgeon, or apothecary. For it hath been solemnly resolved", that mala praxis is a great misdemesnor and offence at com. mon 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 z, neglect or want of skill in physicians or surgeons « culpae adnumerantur ; veluti s “ medicus curetionem dereliquerit, male quempiam 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 caje. This action, of trespass, or transgresion, on the case, w i Roll. Abr. 90.
y Lord Raym. 214. * 9 Rep. 52. Hutt. 135.
2 Inf. 4. 3. 6. & 70, ,
(2) 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. Will. 5. 1 Barnes, 106.