think it no competent ground for restraining the inferior jurisdiction, then judgment shall be given against him who applied for the prohibition in the court above, and a writ of consultation shall be awarded; so called, because upon deliberation and consultation had, the judges find the prohibition to be ill founded, and therefore by this writ they return the cause to its original jurisdiction, to be there determined in the inferior court. Even in ordinary cases the writ of prohibition is not absolutely final and conclusive. For though the ground be a proper one in point of law for granting the prohibition, yet if the fact that gave rise to it be afterwards falsified, the cause shall be remanded to the prior jurisdiction. The writ of consultation may also be, and is frequently granted by the court without any action brought; when after a prohibition issued upon more mature consideration, the court are of opinion that the matter suggested is not a sufficient ground to stop the proceedings below.

CHAPTER VIII

Injuries cognizable at com

mon law.

Ch 2, s. 1.

OF WRONGS AND THEIR REMEDIES RESPECTING THE RIGHTS

OF PERSONS.

THE injuries cognizable by the public and general courts of common law are all such as are not within the jurisdiction of any of the former tribunals. The remedies applicable to each particular injury will be here defined with the method of pursuing and obtaining them.

As all wrong may be considered 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 withholden or invaded; or where that is not a possible or an adequate remedy, by making the sufferer a pecuniary satisfaction in damages; as in case of assault or breach of contract. The instruments whereby this remedy is obtained, are a diversity of suits and actions, which are defined by the Mirror to be "the lawful demand of one's right;" or as Bracton and

Fleta express in the words of Justinium, jus prosquendi in Inst. 4, 6. pr. judicio quod alicui debetur.

The several suits or remedial instruments of justice are from the subject of them distinguished into three kinds; actions personal, real, and mixed (a).

actions.

Personal actions are such whereby a man claims a debt or Personal personal duty or damages in lieu thereof; and also whereby a man claims a satisfaction in damages for some injury done to his person or property. The former are founded upon contracts, the latter upon torts or wrongs, being the same which the civil law calls personal actions, which are commenced against him who, by contract or through the commission of some offence, is bound to give or surrender something. 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 which concern real property only are such Real actions. whereby the plaintiff claims title to any lands (b). 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 (c).

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 and false imprisonment. This distinction of private wrongs into injuries, with and without force, runs through all the variety which are here treated of, and as all rights were before divided into those of persons and those of things, so the same general distribution of injuries will now be made into such as affect the rights of persons, and such as affect the rights of property. The rights of persons were distributed into absolute or such as appertain to private men as individuals; and relative or such as are incident to them as members of society. 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 correspondent nature.

Civil injuries,

and with force.

without force

The rights of persons absotive.

lute and rela

Injuries which affect the personal security of individuals, are Injuries affect.

(a) By 3 & 4 Wm. 4, c. 27, s. 36, all real and mixed actions, except for dower, quare impedit, and ejectment are abolished.

(b) See the last note.

(c) See note (a), ante.

A A

ing personal security.

By threats.

Finch. L. 202. Regist. 104. 27 Ass. 11.

7 Edw. 4, 24. By assault.

By battery.

either injuries against their lives, their limbs, their bodies, their health, or their reputation. Injuries affecting the life of man are treated of hereafter (d). Injuries affecting the limbs or bodies of individuals may be committed; first, by threats and menaces of bodily hurt, through fear of which a man's business is interrupted. A menace alone without the consequent incouvenience 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; this being an inchoate though not an absolute violence. Secondly, 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, an unlawful setting Finch. L. 202. upon one's person with inchoate violence; 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. Thirdly, by battery which is the unlawful beating of another. The least touching of another's person, wilfully or in anger is a battery; but battery is in some cases lawful; as where one who has authority, a parent, or master, gives moderate correction to his child, his scholar, or his apprentice. So on the principle of self-defence; 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 (e). So 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. Thus too in the exercise of an office as that of churchwarden or beadle, a man may lay hands upon another to turn him out of church and prevent his disturbing the congregation. 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

Where justifiable.

1 Finch. L. 203.

1 Sid. 301.

(d) See post, book 4, ch. 14.

(e) But in any criminal prosecution by indictment or information for an assault or battery, the defendant may plead the general issue, and give in evidence that the person assaulted or beat was the first assailant, or that he first made an attack upon the defendant himself, his wife, father, son, master, or perhaps servant, and upon producing satisfactory proof of this justification, the defendant ought to be acquitted by the jury. -Christian's note to B. C. v. 3, p. 120.

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.

By wounding, which consists in giving another some dan- By wounding. gerous hurt, and is only an aggravated species of battery. By By mayhem. mayhem, which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper for

health.

90.

Ld. Raym. 214.
Rep. 52.

9

Hutt. 135.

his defence in fight. Among these defensive members are Finch. L. 204. reckoned not only arms and legs, but a finger, an eye, and a foretooth. 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. For these four last injuries assault, battery, wounding, and mayhem, an indictment may be brought, as well as an action of trespass vi et armis; 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. Injuries affecting a man's health, are where by any unwhole- Injuries to some practices of another, a man sustains any apparent damage in his vigour or constitution. As by selling him bad provisions 1 Roll. Abr. 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. 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 an universal remedy given for all personal wrongs and injuries without force; so called, because the plaintiff's whole case or Reg. Brev. cause of complaint is set forth at length in the original writ ; a form of action allowed both by common law and statute, Westm. 2, where any special consequential damage arises which could not c. 24. be foreseen and provided for in the ordinary course of justice ; for it is a settled distinction, 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 damages consequent on such omission or act. Injuries affecting a man's Injuries to rereputation or good name, are, first, by malicious, scandalous, putation. and slanderous words, tending to his damage and derogation.

105.

11 Mod. 180. Ld. Raym.

1402.

As if a man maliciously and falsely utter any slander or false By words. tale of another, which may either endanger him in law, by im

Scandalum magnatum, and scandal of a magistrate or

person in

public trust,

1 Ventr. 60.
West, 1.
3 Edw. 1,
c. 34.

2 Richd. 2,
c. 5.

12 Rich. 2, c. 11.

1 Lord Raym.

1369.

Mere scurrility

not actionable.

Scandals cog

peaching him of some heinous crime, as to say that a man has

poisoned another, or is perjured, or which may exclude him Finch. L. 185. from society, as to charge him with having an infectious disorder; or which may impair or hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawFinch. L 186. yer a knave (ƒ). Words spoken in derogation of a peer, a judge, or other great officer of the realm, which are called scandalum magnatum, and words tending to scandalize a magistrate, or person in a public trust, are reputed more injurious than when spoken of a private man. In these instances, an action on the case may be had without proving any particular damage to have happened, but on the probability that it might have happened. 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. But mere scurrility, or opprobrius 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 man a heretic, or adulterer, are cognizable only in the ecclesiastical court, unless any temporal damage ensues, which may 1 Freem. 277. be a foundation for a per quod. Words of heat and passion, Words of pas- 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 Finch. L. 186. 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. Nor are any reflecting words made 4 Rep. 13. use of in legal proceedings, and pertinent to the cause in hand, On justification a sufficient cause of action for slander. Also, if the defendant no action lies. be able to justify and prove the words to be true, no action will lie, even though special damage has 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, 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.

nizable in the spiritual court. Nov. 64.

sion not

actionable.

1 Lev. 82.

Cro. Jac. 91.
Dyer, 285.

Cro. Jac. 90.

Instances.

(f) An action may be maintained for words written for which an action could not be maintained if they were merely spoken; Thorley v. Kerry (Lord), 4 Taunt. 355; S. P. Leicester (Earl) v. Walter, 3 Camp. 214 n,; 2 Camp. 251.