though there may be damage fufficient accruing from it, yet, if the fact be true, it is damnum abfque injuria; and where there is no injury, the law gives no remedy. And this is agreeable to the reasoning of the civil law: "eum qui no"centem infamat, non eft aequum et bonum ob eam rem condem"nari; delicta enim nocentium nota effe oportet et expedit." A SECOND way of affecting a man's reputation is by printed or written libels, pictures, figns, and the like; which fet him in an odious or ridiculous" light, and thereby dimi nifh his reputation. With regard to libels in general, there are, as in many other cafes, two remedies; one by indictment and another by action. The former for the public offence; for every libel has a tendency to the breach of the peace, by provoking the perfon libelled to break it; which offence is the fame (in point of law) whether the matter contained be true or falfe; and therefore the defendant, on an indictment for publishing a libel, is not allowed to allege the truth of it by way of juftification". But in the remedy by action on the cafe, which is to repair the party in damages for the injury done him, the defendant may, as for words fpoken, [126] juftify the truth of the facts, and fhew that the plaintiff has received no injury at all. What was faid with regard to words spoken, will also hold in every particular with regard to libels by writing or printing, and the civil actions confequent thereupon (6); but as to figns or pictures, it feems neceffary Ff. 47. 10. 18. "2 Show. 314. 11 Mod. 99. w 5 Rep. 125. (6) When this was originally written by the learned Commentator, the important diftinction between libels and words spoken does not feem to have been fo fully established as it was some time afterwards by the cafe of Villers v. Moufley, 2 Wilf. 403. viz. that whatever renders a man ridiculous, or lowers him in the efleem and opinion of the world, amounts to a libel; though the fame expreffions, if spoken, would not have been defamation as to call a perfon in writing an itchy old toad, was held in that cafe to be a libel; although as words spoken they would not have been actionable. A young fary always to fhew, by proper innuendo's and averments of the defendant's meaning, the import and application of the fcandal, and that fome fpecial damage has followed; otherwife it cannot appear, that fuch libel by picture was understood to be levelled at the plaintiff, or that it was attended with any actionable confequences. A THIRD way of deftroying or injuring a man's reputation is by preferring malicious indictments or profecutions against him; which, under the mask of justice and public fpirit, are fometimes 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, which cannot be brought but against two at the leaft; or, which is the more ufual way, by a special action on the cafe for a falfe and malicious profecution. In order to carry on the former A young lady of quality lately recovered 4000l. damages for reflections upon her chastity published in a newspaper; yet she could have brought no action for the groffeft afperfions which could have been uttered against her honcur. There are authorities, that truth is not a juftification in an 'action for a libel, and a very learned writer feems to doubt, whether fuch a plea would now be admitted by the courts, if the accufation in the libel did not amount to an indictable offence: (3 Woodd. 182 ) but I am inclined to think that the contrary is the prevailing opinion of the profeffion; and that in every action for a libel, if specific inftances can be stated upon the record and proved by evidence, fo as to support the general charge of the libel, the courts would determine them to be a fufficient juftification of the defendant. T. R. 748. And the chief excellence of the civil action for a libel confits in this, that it not only affords a reparation for the injury fustained, but it is a full vindication of the innocence of the perfon traduced. An action for a libel differs from an action for words, for the former may be brought at any time within fix years, and any damages will entitle the plaintiff to full cofts. See more upon libels, 4 vol. p. 150. (which gives a recompenfe for the danger to which the party has been expofed) it is necessary that the plaintiff should obtain a copy of the record of his indictment and acquittal (7); but, in prosecutions for felony, it is usual to deny a copy of the indictment, where there is any, the leaft, probable cause to found fuch profecution upon. For it would be a very great difcouragement to the public justice of the kingdom, if profecutors, who had a tolerable ground of fufpicion, were liable to be fued at law whenever their indictments mifcarried. But an action on the cafe for a malicious profecution may be [127] founded upon an indictment, whereon no acquittal can behad; as if it be rejected by the grand jury, or be coram non judice, or be infufficiently drawn. For it is not the danger of the plaintiff, but the scandal, vexation, and expenfe, upon which this action is founded. However, any probable caufe for preferring it is fufficient to justify the defendant (8). II. We are next to confider the violation of the right of perfonal liberty. This is effected by the injury of false imprifonment, for which the law has not only decreed a punishment, as a heinous public crime, but has alfo given a private reparation to the party; as well by removing the actual confinement for the prefent, as, after it is over, by fubjecting the wrongdoer to a civil action, on account of the damage fuftained by the loss of time and liberty. a Carth. 421. Lord Raym. 253. b 10 Mod. 219, 220. Stra. 691. (7) In an action for a malicious profecution, where the plaintiff has been indicted for a felony, it is neceffary to produce a copy of the record granted by the court before which he was acquitted; but the practice is otherwife in mifdemeanours, and in fuch a cafe the action may be fuftained by the production of the original record of the acquittal. Bl. Rep. 385. (8) The effential ground of this action is, that a legal profecution was carried on without a probable caufe; but this must be fubftantively and exprefsly proved, and cannot be implied. From the want of probable cause, malice may be, and most commonly is, implied. The knowlege of the defendant is alfo implied. From the most exprefs malice, the want of probable caufe cannot be implied. Sutton v. Johnstone, 1 T. R. 544. Το BOOK III. To conftitute the injury of falfe imprisonment there are two points requifite: 1. The detention of the person: and, 2. The unlawfulness of fuch detention. Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the ftocks, or even by forcibly detaining one in the public ftreets. Unlawful, or falfe, imprisonment confifts in fuch confinement or detention without fufficient authority: which authority may arise either from fome procefs from the courts of juftice, or from fome warrant from a legal officer having power to commit, under his hand and feal, and expreffing the cause of such commitment; or from fome other special cause warranted, for the neceflity of the thing, either by common law, or act of parliament; fuch as the arrefting of a felon by a private perfon without warrant, the impreffing of mariners for the public fervice, or the apprehending of waggoners for misbehaviour in the public highways. Falfe imprisonment also may arise by executing a lawful warrant or process at an un[128] lawful time, as on a Sundayf; for the ftatute hath declared, that such service of process shall be void (9). This is the injury. Let us next fee the remedy: which is of two forts; the one removing the injury, the other making fatisfaction for it. THE means of removing the actual injury of falfe imprisonment, are fourfold. 1. By writ of mainprize. 2. By writ de odio et atia. 3. By writ de homine replegiando. 4. By writ of habeas corpus. I. THE writ of mainprize, manucaptio, is a writ directed to the fheriff, (either generally, when any man is imprisoned for a bailable offence, and bail hath been refused; or spef Stat. 29 Car. II. c. 7. Salk. 78. 5 Mod. 95. c 2 Inft. 589. Stat. 13 Geo. III. c. 78. (9) But the ftatute has excepted cafes of treafon, felony, and breach of the peace, in which the execution of a lawful warrant or procefs is allowed upon a Sunday. cially, cially, when the offence or caufe of commitment is not properly bailable below) commanding him to take fureties for the prifoner's appearance, ufually called mainpernors, and to set him at large. Mainpernors differ from bail, in that a man's bail may imprifon or furrender him up before the ftipulated day of appearance; mainpernors can do neither, but are barely fureties for his appearance at the day: bail are only fureties, that the party be answerable for the special matter for which they stipulate; mainpernors are bound to produce him to anfwer all charges whatsoever ". 2. THE writ de odio et atia was antiently used to be directed to the sheriff, commanding him to inquire whether a prifoner charged with murder was committed upon just cause of fufpicion, or merely propter odium et atiam, for hatred and ill-will; and if upon the inquifition due cause of suspicion did not appear, then there iffued another writ for the sheriff to admit him to bail. This writ, according to Bracton', ought not to be denied to any man; it being exprefsly ordered to be made out gratis, without any denial, by magna carta, c. 26. and statute Weftm. 2. 13 Edw. I. c. 29. But the statute of Glocester, 6 Edw. I. c. 9. restrained it in the case of kill [129] ing by mifadventure or felf-defence, and the ftatute 28 Edw. III. abolished it in all cafes whatfoever: but as the ftatute 42 Edw. III. c. 1. repealed all statutes then in being, contrary to the great charter, fir Edward Coke is of opinion that the writ de odio et atia was thereby revived. c. 9. 3. THE writ de homine replegiando lies to replevy a man out of prison, or out of the cuftody of any private perfon, (in the fame manner that chattels taken in diftrefs may be replevied, of which in the next chapter) upon giving fecurity to the sheriff that the man fhall be forthcoming to answer any charge against him. And, if the perfon be conveyed out of the fheriff's jurifdiction, the sheriff may return that he is 1 l. 3. tr. 2. c. 8. g F. N. B. 250. 1 Hal. P. C. 141. Coke on bail and mainpr. ch. 10. A Co. ibid. ch. 3. 4 Inft. 179, k 2 Inst. 43. 55. 315. eloigned, |