Sidebilder
PDF
ePub

AN

INTRODUCTION

TO THE

Law at Nisi Prius.

PART I.

CONTAINING THREE BOOKS OF

ACTIONS FOUNDED UPON TORTS.

INTRODUCTION

то

PART THE FIRST.

It was for their mutual conveniency and defence that men first entered

T

into society, thereby submitting themselves to be governed by certain laws, that they might in return enjoy the benefit and protection of them. Legum denique idcirco omnes servi sumus, ut liberi esse possimus.-Cic. pro Cluent.

Hence the end of the law is to preserve men's persons and properties [2] from the violence and injustice of others; and for that purpose it does, in all instances of an injury being committed, either inflict a punishment upon the party offending, or give a recompence to the party injured.

The method prescribed by the Law for getting at such recompence is what is properly termed an action: therefore leaving Criminal Prosecutions, by which punishments are inflicted, to the disquisition of

[blocks in formation]

others, I will, in this First Part of my work, take notice of the Injuries for which an Action may be brought, and by what Evidence it may be supported; and also consider what Defence may be made by the person against whom the Action is brought, and what is the proper Manner of taking advantage of it.

BOOK

BOOK I.

FOR WHAT INJURIES AFFECTING THE PERSON AN ACTION MAY

BE BROUGHT.

THE injuries on account of which an action may be brought, are such

as either affect the person, or the property of the party.

Those which affect the person are,

1. Slander.

2. Malicious Prosecution.

3. Assault and Battery.

4. False Imprisonment.

5. Injuries arising from Negligence or Folly.
6. Adultery.

CHAPTER I.

OF SLANDER.

SLANDER is defaming a man in his reputation (a) by speaking or writing words which affect his life, office, or trade; or which tend to

(a) Slander may be by words maliciously spoken in the presence of others, or by a writing delivered over to another to scandalize a man, or by painting a man ignominiously, or by signs, as by affixing a gallows over a inan's door. Case de libellis famosis, 5 Co. 125.

The important distinction between words spoken and libels was fully established in Villers v. Monsley, 2 Wils. 403, viz. That whatever renders a man ridiculous, or lowers him in the esteem of the world, amounts to a libel; though the same words, if spoken, would not have been a defamation of him.

As to slander by words: Where the words spoken bring a man into danger of legal punishment, they will support this action, but they must charge a fact to have been committed, for it is not enough to

his

charge him with an evil intention only. Harrison v. Stratton, 4 Esp. N. P. Ca. 218.

So adjective words are actionable, if they presume an act committed, as to call a man 66 a perjured old knave," for perjured implies an act committed. Secus, if a man be called "a seditious or thevish knave," for that only imports an inclination to the crime. Brittridge's Ca. 4 Co.

18.

And indeed any words which may subject a man to prosecution are actionable. Morgan v. Williams, 1 Stra. 142. Cuddington v. Wilkins, Hob. 81. Carpenter v. Tarrant, Ca. temp. Hardw. 339, cited by Ellenborough, C. J. in Roberts v. Camden, 9 East, 97.

So words which operate to exclude a man from society, are ac tionable, as charging him with havB 2

ing

his loss of preferment in marriage or service; or to his disinheritance; or which occasion any other particular damage. (a)

If slander be spoken of a peer or other great man, it is called by a particular name, Scandalum Magnatum, and is punishable in a particular manner, viz. by imprisonment, by Westm. 1. c. S4. as well as rendering damages to the person injured, to be recovered in an action founded [*4] upon the 2d of R. 2. tam pro * Domino rege quam pro seipso. And this statute is a general law of which the court will take notice, and therefore it need not be recited in the declaration, (yet if the plaintiff undertake to recite it, and mistake in a material point, it is incurable :)

Taylor v.

Taylor v.

ing an infectious disease.
Perr, 1 Rol. Abr. 44.
Perkins, Cro. Jac. 144. Crittal v.
Horner, Hob. 219. James v. Rut-
lech, 4 Co. 17. But the words must
charge him with being then infec-
tious, and not with having been so.
Carslake v. Mapledoram, 2 T. Rep.
473. Taylor v. Hall, 2 Stra. 1189.

So words which hinder a man in
his profession or trade, are action-
able. Byrchley's Ca. 4 Co. 16. Day
v. Buller, 3 Wils. 59. Phillips v.
Janson, 2 Esp. N. P. 624. Roberts
v. Camden, 9 East, 93. Hardwicke
v. Chandler, Stra. 1138. Upsheer v.
Betts, Cro. Jac. 578. Kemp's Ca.
Dy. 72 (b). Sed Vide Com. Dig. Act.
on Ca. tit. Defamation, (D) 24. 259.
(F) 9. 269, for these cases at large.
The general rules of construction, as
to slanderous words, is to construe
them in their plain and popular
sense, and such in which an ordinary
hearer would have understood them
at the time they were spoken. Har-
man v. Delany, Fitzg. 254. Roberts
v. Camden, 9 East, 93.

ticular instances of fraud, by which defendant means to support it. I'Anson v. Stuart, 1 T. Rep. 749.

In Surmon v. Shilleto, 3 Bur. 1688, the words "Thou hast cheated me of several pounds" were held actionable; but it should seem there was a colloquium in the same count about the plaintiff's trade, although none is mentioned as being in that count, either by the reporter or the bench. In I'Anson v. Stuart, sup. Ashhurst, J. said, that "which affects liberty," is to charge a man with having committed an indictable offence; quære tamen, for Eyre, C. J. expressly says, that calling a man a cheat, is not actionable, and yet he is indictable as a cheat; and, in his opinion, the words must impute a felony: the old cases, he said, were irreconcileable on this point, but the following appeared to him to be the leading principles, viz. words are actionable which impute to a man the crime of felony, or a disease which may drive him from society, or any thing which imports a something equally noxious in its effect. words not actionable in themselves, may become so from the person to whom they are addressed, and sometimes a colloquium may be supposed, but in other cases they are not actionable, except for particular damage; therefore "thou art forsworn" is not equivalent to perjured, without a colloquium as to some judicial proceeding. Holt v. Isterfield, 6 T. R. 634. Onslow v. Horne, 3 Wils. 186.

So

(a) Words not otherwise actionable, become so when applied to a man's trade or profession; and words published in writing are actionable, which would not be so from a bare speaking of the same words; because a libel disperses and perpetuates the scandal. Harman v. Delany, Fitzg. 253: therefore to print of any one, that he is a swindler is a libel, and actionable; and a justification of such a charge must state the parThis seems a mistake; for a man is not indictable as a cheat, but as a common cheat.

but

but it must be shewn that the plaintiff was unus magnatum at the time of speaking the words, else the action will not be maintainable. (a) (Lord Cromwell v. Denny, 20 Eliz. 4 Co. 12, 13. E. of Shaftsbury v. Lord Digby, T. 28 Car. 2. 2 Mod. 98. Ld. Townsend v. Dr. Hughes, H. 28 & 29 Car. 2. 2 Mod. 166. Lord Say and Sele v. Stephens, T. 4 Car. 1. Cro. Car. 135.) It has been said there is a difference between an action grounded upon the statute de scand. magn. and a com mon action of slander; that the words in the one case should be taken in mitiori sensu, and in the other in the worst sense against the speaker, that the honour of such great persons may be preserved: (E. of Peterborough v. Sir John Mordant, H. 21 & 22 Car. 2. 1 Vent. 60.) But this difference seems no longer to subsist; because the old rule, that words shall be taken in mitiori sensu is now exploded, and the rule at this time is, that they shall be taken in the same sense, as they would be understood by those who hear or read them, and for that purpose all the words ought to be taken together.-Bradley and Messon, M. 10 G.2, Ld. Townsend v. Hughes, 2 Mod. 159.

The defendant said to the plaintiff, I know you very well, how did your husband die? The plaintiff answered, "As you may, if it please God." The defendant replied, No, he died of a wound you gave him. On not guilty, there was a verdict for the plaintiff; and on motion in arrest of judgment, the court held words actionable, for they are in the whole frame of them spoken by way of imputation. Parker, C. J. said, it is very odd, that after a verdict a court of justice should be trying whether there may not be a case in which words spoken by way of scandal might be innocently said; whereas if that were in truth the case, the defendant might have justified.-Ward v. Reynold, P. 12 Ann, Gilb. Rep. K. B. 243. (b)

(a) It has been held in the Star Chamber, that if a Scand. Mag. be brought on this stat. defendant cannot justify, because it is brought qui tam, and the king is concerned; but defendant may explain the words, and tell the occasion of speaking them. If they are truc, they must not be published, because the stat. was made to prevent discords. Per North, C. J. in Lord Townshend v. Dr. Hughes, sup.

(b) Colloquium was of the death of D. D. The words in one count were, "you are guilty," (innuendo of the death of D. D.)" and rather

than you should want a hangman, I will hang you." In another count, "you are guilty," (innuendo of the murder of D. D.) After verdict, both counts were held to be actionable, but on motion, in arrest of judgment in C. B. and writ of error in B. R., Lord Mansfield said, the words "guilty of the death," bore a very different meaning from "you were the cause of the death," for one might be innocently the cause of the death of another. Peake v. Oldham, Cowp. 278, where this case was cited by Mansfield, C. J. as in point.

Yet

« ForrigeFortsett »