CHAP. II. I. ABSOLUTE, &c. under the age of ten years, with intent to deprive the parent or parents, or other person, of the lawful possession of such child, or with intent to steal any article, or receiving or har- I. PERS. SEC. bouring any such child, knowing the same to have been so taken away, is felony, and punishable with transportation for seven years or imprisonment; but there is an exception in favour of fathers taking their illegitimate children from the mother. (a) 10. The offence of bigamy is punishable with transportation 10. Bigamy. for seven years, or imprisonment, with or without hard labour, for not exceeding two years. (b) An illegal deceptive marriage, when effected by conspiracy, is a misdemeanor at common law, punishable by indictment or information; (c) and, under the marriage act, the husband forfeits his interest in the property he would otherwise acquire by the marriage. (d) offences. 11. Unnatural offences are punishable capitally upon proof 11. Unnatural only of penetration; (e) but if the latter cannot be proved, then the prosecution should be for the misdemeanor, the attempt to commit the offence: the conviction even of the latter offence would enable the offender's wife to proceed in the Ecclesiastical Court for a divorce. (f) by want of due 12. Injuries to the person, limbs, or body, occasioned by neg- 12. Injuries to ligence or misfeazance, subject the wrong-doer to an action for the body or limbs recovery of damages; as injuries arising from leaving open care, as from trap doors or areas in public streets, (g) or suffering a dan- nuisances, &c. gerous dog to go at large or to be placed in an open yard, (h) or any injuries from similar causes; (2) and where the injury is of a public nature, the party may also be indicted for the nuisance. (k) or to sue. When the injury to the person has occasioned considerable When it is addamage, and can be readily proved by third persons, an action visable to indict for compensation may be the preferable remedy; but in case of secret injuries, which require the evidence of the party himself clearly to establish the facts, a summary proceeding before justices or an indictment may be preferable. And when the (a) 9 Geo. 4, c. 31, s. 21. (b) Id. s. 22. (c) 3 Ves. & Beames, 175. (d) 4 Geo. 4, c. 76, s. 23; Russ. & Ry. C.C.459, post. (e) 9 Geo. 4, c. 31, s. 15, 18. (f) It was determined by the Court of Delegates, that the public infamy of the husband, arising from a judicial conviction of an attempt to commit an unnatural crime, is a sufficient cause for the Ecclesiastical Court to decree a separation a mensa et thoro. Feb. 1794, 3 Bla. Com, 94, note (15), Chitty's ed.; and see Mr. (g) 5 Bar. & C. 519; 3 Campb. 398; (h) 4 Car. & P. 297; 3 Car. & P. 138, post, c. vii.; Com. Dig. Action, Negligence, A. 5. (i) 4 B. & C. 223; 1 Car. & P. 636; 5 M. & S. 198; who not, 4 M. & S. 27. (k) Burn's J. Nuisance, II., ; with respect to unsound steam engines, 1 & 2 G. 4, c. 41, s. 1. I. ABSOLUTE, &c. CHAP. II. injury is of a trifling nature, it should be remembered, before the commencement of an action, that costs are not recoverable I. PERS. SEC. unless the plaintiff obtain a verdict for forty shillings; (1) and that courts and juries seldom participate in the feelings of resentment occasioned by a mere trifling assault; and, consequently, plaintiffs proceeding for them would probably only expose themselves to ridicule and contempt.(7) Fourthly. dies. Fourthly. The health of an individual may be injured by a ries, and reme- public or private nuisance, as by breaking quarantine, by sale of unwholesome food, by want of due care in medical practitioners, or by sudden alarms affecting the nervous system. The remedies are threefold, preventive, compensatory, or punishment. Private and public nuisances to health already existing, and not merely prospective or apprehended, may, in some cases, be prevented by abating or removing by act of the individual sustaining a resulting injury, (m) or they may, whilst in progress, be prohibited and restrained by injunction obtained summarily upon bill filed and motion to a Court of Equity. (n) Compensation may be obtained for the private and particular injury by action on the case, (o) and the public nuisance may be punished and abated upon judgment, and by writ upon an indictment; (p) and breaking quarantine is particularly punishable. (q) The sale of unwholesome food is prohibited, and punishable at common law and by statutes, and sometimes prevented by local customs. (r) Thus, there are particular enactments against millers and bakers, to prevent the adulteration of flour and bread, and an indictment at common law is sustainable against a baker for selling bread improperly mixed with alum, though only by his servants. (s) So, the sale of bad meat, (t) and bad butter, (u) and of bad food in general, (x) are prohibited and punishable; and if there be a conspiracy to sell bad food it is punishable at common law. (y) So it is illegal to sell or mix drugs with beer; (2) and in some of these cases, if adulterated, or bad articles be found, they may be seized, (a) and the wrongdoer is subjected to penalties. Innkeepers selling unwholesome (1) Ante, 23, 26, 27. (m) 12 Mod. 510, post, c. vii. (0) 9 Coke, 55, 58, b.; 16 East, 196. (q) 6 Geo. 4, c. 78 & 105; 4 Term R. (r) 3 B. & Adolp. 43, and case there cited. (s) 31 Geo. 2, c. 29, s. 29, 30; Burn's J. Bread, and tit. Mill; 3 M. & S. 11. (t) Burn's J. Butcher; 1 Stark. Slander, 143. (u) 36 Geo. 3, c. 86, s. 4. (*) 56 Geo. 3, c. 58, s. 2, 3; Burn's J. Excise, vol. II. 324, 325; and Burn's J. Alehouse, IV. & V.; Langton v. Hughes, 1 M. & S. 593; Attorney-General v. King, 5 Price, 195. (a) 31 Geo. 2, c, 29, s. 29, 30. CHAP. II. 1. ABSOLUTE, &c. wine (b) or victuals may, it is said, be indicted for a misdemeanor at common law, and any person to whom the same has been sold may maintain an action against him for the injury done; (c) 1. PERS. SEC. and it has been holden a good custom in a manor for the homage to search and seize all unwholesome food offered for sale. (d) So if the health of an individual be injured by the unskilful Mala praxis. or negligent conduct of a surgeon or apothecary, or general practitioner, in assuming to heal a dislocated or fractured limb or internal disorder, an action for compensation may be sustained, (e) or the wrong-doer might be proceeded against by censure in the college, (ƒ) or for gross negligence or misconduct he might be indicted. (g) It should seem, on principle, that if the health of an individual be injured by a person wilfully assuming the appearance of a ghost, or doing any other act on purpose to terrify persons, and whose nerves are thereby injured, an action would lie for the consequence; and that the wrong-doer might be indicted for the misdemeanor, although Lord Hale has stated that if death should ensue the offender could not be indicted for murder. (h) And we have seen that if a parent or master, or other person having the custody of an infant unable to support himself, and whose legal duty it was to feed and take adequate care of the same, and thereby injure the child's health, he would be indictable for the misdemeanor. (1) Fifthly. Injuries to reputation are written or verbal slander, Fifthly. REPU and malicious prosecutions imputing the guilt of some disrepu table crime. ries, remedies, and punishment. 1. A libel signifies any malicious defamation expressed either 1. Libels, what. in printing, writing, pictures, or effigies. (k) Every written calumny is actionable and punishable, although it do not impute any indictable offence, but merely tend to disgrace or ridicule, or bring into contempt the party calumniated, even by imputing hypocrisy or want of proper feeling, and still more if it impute fornication, swindling, or any other deviation from moral recti (b) As to mixing wine with other wine, or with any other thing, 100l. penalty, and 401. penalty on the retailer, 12 Car. 2, c. 25, s. 11; 26 Geo. 3, c. 59, s. 23; 54 Geo. 3, c. 77, s. 4, 8; Burn's J. Excise, Wine. (c) Rol. Ab. 95; 2 East, P. C. 822; 6 East, 133; 2 Bla. C. 162; Burn's J. Alehouses, IV. & V.; 7 & 8 W. 3, c. 30, s. 23; 22 & 23 Car. 2, c. 5, s. 11. (d) Vaughan v. Attwood, 1 Mod. 202; Willcock v. Windsor, 3 Bar. & Adolp. 47. (e) 2 Wils. 359; East, 348. (g) The King v. Long, 4 Car. & P. (h) 4 Bla. C. 197, 201, note 25; G. I. ABSOLUTE, &c. CHAP. II. tude or principle, () unless it were written and published on a lawful occasion, as in bonâ fide giving a fair character of a I. PERS. SEC. Servant or a confidential communication, or to a certain extent a correct report of a trial or proceeding in court, where both plaintiff and defendant may be supposed to have been present before the court. But not a report of an ex-parte proceeding, (m) or matter relating to a third person not before the court. (n) 2. Slanderous words. The continued publication of a libel may be prevented by destroying it, (o) but not by a cross libel on the wrong-doer. (p) It may be compensated by action, in which full costs may be recovered although the damages be under forty shillings, (q) and it may be punished by indictment. (r) If the libellous matter were in an affidavit or articles of the peace, or in the course of other legal proceedings, then the party scandalized can merely apply to the court to have the matter struck out, and cannot sustain any action. (s) 2. But slanderous words cannot legally be prevented by battery of the slanderer, (t) nor can any action be supported unless the words either first impute the guilt of some temporal offence for which the party slandered, if guilty, might be indicted and punished in the temporal courts, and which words are technically said to endanger a man in law; or, secondly, impute the having an existing contagious disorder tending to exclude from society; (u) or, thirdly, an unfitness or inability to perform an office or employment of profit, or want of integrity in an office of honour; (v) or, fourthly, words prejudicing a person in his lucrative profession or trade; (x) or, fifthly, any untrue words occasioning actual damage. (y) If the words, however insulting, do not in themselves or by circumstances import any certain charge under one of the first four of these heads, and be not followed by actual damage, then there is no remedy in courts of common law; thus to call a man "forsworn," or a "scoundrel," or a "cheat," or a "rogue," or a "rascal," and perhaps a "swindler," is not actionable, because the words do not necessarily import that the party has committed any (s) 1 Saund. 152, note (1); 2 Shaw, 245; 3 Dow. R. 377; Hodson v. Scarlett, 1 Bar. & Ald. 232. (t) 3 Wils. 186; 6 T. R. 694. (v) 2 Salk. 695. (x) 3 Wils. 186; 1 Lev. 115. (y) 1 Lev. 53; 2 Leon. 111; 8 T. R. 130; 1 Taunt. 39. CHAP. II. I. ABSOLUTE, &c. punishable crime. (2) But if either of those, or any other expression, should be accompanied by any other circumstance tending to fix a direct imputation of some punishable crime upon the I. PERS. SEC. party calumniated, and be so understood by any other third party, then the otherwise uncertain imputation may become actionable; (a) and a general charge of criminality, by a term known in law to impute a punishable crime, is actionable, as to call a person a "traitor," "highwayman," "thief," or to say he is guilty of "perjury" or "murder," though the particulars of any pretended crime be not stated. (b) A mere verbal imputation of the breach of any mere moral virtue, duty, or obligation, such as chastity, sobriety, &c. (though it may depreciate a person in the opinion of society, and subject him to censure and punishment in the Ecclesiastical Courts, yet does not expose him. to punishment in the Temporal Courts) is not actionable, unless followed by actual damage. (c) And the party aggrieved must, to punish the slanderer, prosecute him in an Ecclesiastical Court; though, when the accusation is partly of an offence punishable in the Ecclesiastical Courts and partly in the Temporal Courts, or where special damage has been sustained, the latter courts have the exclusive jurisdiction, and will then afford redress for the entire slander. (d) Actions for words are restrained by the enactment, that the plaintiff shall recover no more costs than damages, unless he obtain a verdict for forty shillings; (e) and there is in general no punishment by indictment or otherwise for verbal slander, unless in the case of insulting words spoken to a magistrate whilst in the exercise of his office. These, and other distinctions between verbal and written slander, proceed upon the principle that the former are often spoken in heat upon sudden provocations, and are fleeting and soon forgotten, and, therefore, less likely to be permanently injurious; but that written slander is more deliberate and more malicious, more capable of circulation in distant places, and, consequently, more likely to be permanently injurious. Malice is in general to be inferred, as well in the publication Express malice, of written as of verbal slander, (ƒ) unless the occasion of utter- when or not ing the slander afford a contrary presumption; as where the (z) 3 Wils. 177; 6 T. R. 691; 2 H. Bla. 531; 4 Co. 16, b.; 2 Chitty's R. 657. (a) Id, ibid, 6 T. R. 694. (b) Cro. Jac. 114; 1 Stra. 142; 2 New R. 335. (e) 4 Taunt. 355. (d) 2 T. R. 473; 1 Lev. 134; 3 Lev. (e) 4 East's Rep. 567; 2 Wils. 258. essential. |