the battery of a wife or servant whereby death ensued, (b) and, in general, all felonies suspend the civil remedies; (c) and before conviction of the offender there is no remedy against him at law or in equity; (d) but after conviction and punishment on an indictment of the party for stealing, the party robbed may support trespass or trover against the offender; (e) and after an acquittal of the defendant upon an indictment for a felonious assault and stabbing, the prosecutor may maintain trespass to recover damages for the civil injury, if it be not shown that he colluded in procuring such acquittal. (ƒ) In some cases of misdemeanors, and other particular offences, there are express enactments that the civil remedy shall not be affected by the criminal; as in the case of embezzlements by clerks, bankers, &c. (g) But in the former case of a public nuisance, which is merely a misdemeanor, if a particular individual has sustained actual and particular material damage or inconvenience in consequence of the offence; as if in throwing a log into a public highway it hurt an individual, or afterwards occasion his horse to fall; or if a public road, which a private individual was bound to repair, be so impassable as to delay another a long time in his journey, or compel him to take a circuitous route, then the latter may sustain an action for such particular damage; (h) and he may at the same time prosecute the offender by indictment for the public nuisance. (i) So some injuries are in their nature as well private as public, as assaults and batteries, libels on individuals, and forcible entries; and the party particularly injured may proceed by action, or he, or any other person, may indict the wrong-doer for breach of the peace; and in general the civil remedy for a private injury, also constituting a public misdemeanor, is not, as in cases of felony, even suspended. CHAP. I. INJURIES, &c. Thirdly. The occasion upon which the supposed injury was Thirdly, The committed should be considered, as it frequently, at least occasion of committing the inprimâ facie, legalizes or excuses the act, as in the case of jury. slander in giving the character of a servant the libel is excusable, unless express malice be proved. (k) (b) Styles, 347; 1 Lev. 247; Yelv. 89, 90; 1 Ld. Raym. 339. At least it is so as respects the death and subsequent loss of service, but it might be otherwise for the expense and temporary loss of service. Semble. (e) Styles, 347. (d) Id. ibid.; 17 Ves. $31. (e) Styles, 347; Latch. 144; Sir W. Jones, 147; 1 Lev. 247; Bro. Ab. tit. Trespass. (f) 12 East, 409. (g) 52 Geo. 3, c. 63, s. 5. (h) The Mayor and Burgesses of Lyme Regis v. Henley, 3 Bar. & Adol. 77; Chichester v. Lethbridge, Willes' Rep. 71 to 75; 9 Moore, 489; 11 East, 60; 12 East, 432; see other cases, 3 Bla. C. 219, 220, note (6). (i) Id. ibid. (k) Pattison v. Jones, 8 Bar. & Cres. 578. CHAP. I. INJURIES, &C. Fourthly. The intention of the wrong-doer. PRIVATE IN JURIES in par- tracts. Fourthly. It may in some cases be necessary to prove a malicious or bad intention, as in an action for a malicious prosecution, and in some cases of slander. But in general when the act occasioning an injury is unlawful, the intent of the wrongdoer is immaterial. (k) With respect to private injuries it is essential to consider what was the right affected, and then to ascertain whether the injury was a tort without contract, or a mere breach of contract, or of what other precise nature. If it were a mere tort, was it an immediate injury with force to a corporeal and tangible thing, so as to constitute a trespass, and remediable as such; or was the injury to an incorporeal or nontangible matter, or indirect and without force and only consequential, or to property in remainder, and therefore remediable by another form of remedy, viz. an action on the case; (1) and was it a mere violation of a right by a party under no particular obligation, or was it the breach of a duty? Was it a nonfeazance, misfeazance, or malfeazance? These questions are of great importance, in many respects substantially so, and at least in regard to their governing the form of remedy. (m) Thus if B. illegally enter the house or land of A. with actual force and in a violent manner, such illegal entry would justify A. in immediately opposing force to force, and laying hands on him and turning him out without previous request; but if B. entered peaceably or to demand a debt, he must first be requested to depart, and if he refuse, then, although hands may be laid on him, yet this must be done gently (molliter), and no more force to push him out must be used than absolutely réquisite. (n) Torts, in their infinite varieties, affect the person absolutely or relatively, or personal or real property. To the person they are threats and menaces, assaults, batteries, wounding, mayhems; injuries to health, by nuisances or by medical malpractice; or affecting reputation, they are verbal slander, libels, and malicious prosecutions. Affecting personal liberty, they are false imprisonment and malicious prosecutions. To the relative right of a husband, they are abduction and harbouring, adultery or criminal conversation, and battery. Of a parent, abduction, seduction, and battery; and of a master, seduction, harbouring and battery of his apprentice or servant. And as they affect the right of the inferior relation, viz., as the wife, child, appren (k) 6 East, 464, 473; 2 East, R.107; 5 Esp. R.214; Weaver v Ward, Hob. 134; 1 Bing. 213; 1 Chit. Pl. 5 ed. 147, 148, 149. (1) 9 Bar. & C. 591. (m) See the distinction 1 Chitty on Pleading, 142 to 151. (n) 2 Salk. 641; 8 T. R. 78, 357; Fullay v. Reed, per Park, J. 1 C. & P. 6, post. tice, or servant; they are withholding conjugal rights, maintenance, wages, &c. Injuries to personal property are the unlawful taking or detention thereof from the owner; and other injuries, are some damage affecting the same whilst in the claimant's possession or that of a third person, or injuries to his reversionary interest. Injuries to real property are ousters, or turning or keeping the owner out of possession, trespasses to the owner's possession, nuisances to corporeal and incorporeal real property, waste, subtraction of rent, services, &c., disturbances of franchises, right of common, rights of way, or of pews, of tenure, and of patronage, &c. CHAP. I. INJURIES, &C. ecclesiastical. It must further be considered whether the injury was tempo- Torts are ral, or ecclesiastical, or spiritual. Thus, although the common temporal or law protects private reputation, yet actions are only sustainable when a verbal slander imputes an offence punishable in the temporal courts, and not a mere imputation of fornication, adultery, drunkenness, or other immorality, punishable only in the Spiritual Courts, unless it can be averred and proved that actual temporal damage, such as the loss of the society of one or more particular persons, has ensued. If such damage cannot be proved, then the calumniator must be proceeded against (within six calendar months) for correction in an Ecclesiastical Court, whose sentence is not, as supposed, mere brutum fulmen, and though not for damages is for corporal punishment and costs. So a married woman, though entitled to alimony and conjugal rights, cannot sue her husband at law, but must resort to an Ecclesiastical Court (0) or to an action at law in the name of her trustees, in case of a deed securing her money or a separate maintenance, (p) though probably deeds stipulating for separation would now be held void at law, even as to covenants with a trustee, according to the recent decision in the House of Lords. (q) If a breach of contract be complained of, then the nature of Breaches of the contract must be considered, as whether it was of record, contract. under seal, in writing, or merely verbal; and if the latter, whether it was an express or implied contract. The remedies, we shall find, principally depend on the form and mode in which the contracts were entered into. It must be ascertained whether there was any prior act (termed in law a condition precedent) to be performed by the party complaining, and whether any requisite tender, offer, request, or notice, or other step has (0) 27 G. 3, c. 44; 53 G. 3, c. 127; 3 Maule & Selw. 429. (p) 9 Bar. & C. 67; 3 Dowl. & R. 570. (q) Westmeath v. Westmeath, 1 Dow. Rep. New S. 519, and post next chapter. CHAP. I. INJURIES, &C. Public injuries. Felony, what. Misdemeanor. Offence. been performed essential to establish that the party required to perform his contract has no excuse for his nonobservance. With respect to public injuries (usually denominated crimes and offences), they necessarily are as various as the public rights themselves, and even more so, for there is no limit to the perverted inventions of the malicious and the depraved in their unjust desire to injure others or to benefit themselves. All public offences or injuries may be classed under one of four heads, treasons, felonies, misdemeanors, and offences. (r) The former are certain offences against the King or state, and to which our present inquiries will not extend. The distinction between petty treason (viz. the killing of a husband, master, &c.) and ordinary murder, is now abolished. (s) Felon is a term of disputed origin, though probably derived from fee and lon, (fee signifying the fief, feud, or beneficiary estate, and lon meaning the price or value,) and signifying all crimes of so high a nature as to be punished, as heretofore the case, with the total loss of the fee, or estate, and its value; and to which, capital or other punishment may be superadded, according to the degree of guilt. (t) And when a statute declares that an offender guilty of any certain act shall be deemed to have feloniously committed it, it makes the offence a felony, and imposes all the common and ordinary consequences attending a felony. (u) The term misdemeanor means every offence inferior to felony, but punishable by indictment or by particular prescribed proceedings.(x) The term "offence" also may be considered as having the same meaning, (y) but is usually by itself understood to be a crime not indictable but punishable summarily or by the forfeiture of a penalty. If one statute make the doing an act felonious, and a subsequent act make it only penal, the latter is considered as a virtual repeal of the former. (2) These distinctions will be found highly important in their consequences. Private remedies are, in the case of felonies, suspended until after conviction or acquittal of the felon, but not so in general in the case of misdemeanors or minor offences. Public offences are to the law of Nations; or against God or religion, morality or decency, as recognized by our own public municipal laws; offences against the King, whether amounting to high treason, felony, or misdemeanor, or contempts of his government and prerogatives; offences against public justice, of various descriptions; against public peace, trade, health, and public police or economy; and offences against the positive enactments of a statute subjecting the party violating the regulation to a pecuniary penalty or punishment; all which in themselves are direct violations to rights strictly public. Besides these are certain public offences more immediately affecting a particular individual, and constituting a private injury, but which, in respect of their bad example and tendency, are also considered to be public; such as those affecting the person, as homicide, which directly seems only to affect the party killed and his near relatives; other offences against the person of an individual, such as mayhems, abduction of an heiress or other female, rapes, unnatural crimes, assaults, batteries, woundings, and false imprisonment, libel, challenges and duels. Offences against habitation, as arson and burglary and riotous destruction; certain offences against private personal property, as larceny, embezzlement, false pretences and cheats, malicious mischief, forgery, and others. These, it will be observed, although directly and immediately more particularly injurious to one or more individuals, are, as breaches of the peace, and calculated to rouse and instigate men to revenge, and affording dangerous examples to others, therefore injurious in their consequences to society at large, and punishable as such. Some of these we shall find are remediable or rather punishable only by particular means, or in a particular course; and hence it is of great importance to ascertain the precise nature and classification of the public injuries or offences complained of. We have seen that, with regard to private injuries, if a wrong be committed, the intention of the wrong-doer is seldom material. But with regard to public offences, it is in general otherwise, and the criminal intention frequently constitutes the essence or the degree of crime; thus homicide is murder, if committed maliciously, but if only occasioned by want of due care, it is only manslaughter. So seeming horse stealing or other larceny, will become at most trespass, if it appear that there was a total absence of felonious or criminal intent. (a) With respect to remedies, they naturally follow the same order as rights and injuries, and it is essential, before the adop (a) Rer v. Alerander and Davis, Burn's J. tit. Horses, 262, 263, and tit. Larceny ; Rex v. Martin, 2 East's P. C. 618; 1 CHAP. I. INJURIES, &C. III. REMedies, PRIVATE, Or PUBLIC, in general. |