by prescription on my own land (y), and another erects a new mill, which draws away some portion of the stream from mine, so as to diminish its former power, an action will lie against him of trespass on the case (z).

It may also be remarked, that a plaintiff is not entitled to recover in respect of any damage that is too remote; or, in other words, he cannot recover unless the damage he has suffered flows naturally and directly from the injury committed (a). Thus, where the plaintiff, who as director of musical performances had engaged a certain public singer, brought an action for the publication of a libel on her, alleging that she was thereby deterred from performing in public, through the apprehension of being ill received, so that the plaintiff lost the profits he would otherwise have gained,—it was held that the damage was too remote, and the action not maintainable (b).

Again, as to suits of every class, in certain cases, the right to sue thereon is transferred by the operation of law (c). Thus the rights of action of a bankrupt, pass (with certain exceptions) to his trustees; and upon the death of either of the parties between whom a cause of action has arisen, the right of maintaining such action survives in general, to or against his executors or administrators (d); and to these, as well as to the trustees, the right also belongs of continuing actions, which the deceased, or the bankrupt, has commenced (e). In re

(y) As to prescription, vide sup. vol. I. p. 685 et seq.

(z) Bac. Ab. Actions on the Case (C), and the authorities there cited.

(a) Com. Dig. Action on Case, Defamation.

(b) Ashley v. Harrison, 1 Esp. 48; and see a variety of cases decided on the same principle, such as Kelly . Partington, 5 B. & Adol. 645; Knight v. Gibbs, 1 Ad. & El. 43; Green v. Button, 1 Tyr. & G.

118; Langridge v. Levy, 4 Mee. & W. 337.

(c) As to an assignment in writing of a debt or other legal chose in action under the Judicature Act, 1873, see 36 & 37 Vict. c. 66, s. 25, subs. (6).

(d) See Stubbs v. Holywell, Law Rep., 2 Exch. 311.

(e) 15 & 16 Vict. c. 76, ss. 137, 138; and see 17 & 18 Vict. c. 125,

s. 92.

VOL. III.

BB

spect, indeed, to suits which are founded on certain violations of personal rights,—as, in the case, for example, of an action for slander,--the maxim is, that they die with the person (f). And this originally extended to every case of tort (g). But (except in reference to causes of action for violation of personal rights of the description just referred to), this antient rule has been now set aside by various acts of parliament. For by 4 Edw. III. c. 7, actions may be maintained by executors or administrators, for trespasses to the personal property of the testator or intestate. And by 3 & 4 Will. IV. c. 42, s. 2, actions may be maintained by executors or administrators, for any injury committed in his lifetime to his real estate,-provided it was committed within six calendar months before, and the action brought within one year after, his death. And by the statute last named, it was also provided, that actions may be maintained against executors or administrators, for any wrong committed by the deceased in respect of his property either real or personal,-provided it was committed within six calendar months before his death, and the action is brought within six calendar months after the executors or administrators have taken on themselves the administration. And, lastly, by 9 & 10 Vict. c. 93 (amended by 27 & 28 Vict. c. 95), it is enacted, that whenever the death of a person shall be caused by such wrongful act, neglect or default, as would, (if death had not ensued,) have entitled the party injured to maintain an action for damages, the wrongdoer may be sued for the benefit of the wife, husband, parent or children of the person injured (h); and this, although the death shall have been caused under such circumstances as amount in law

(f) 3 Bl. Com. 302.

(g) 1 Chit. Pl. 56. As to torts, vide sup. p. 363.

(h) As the general rule the action is to be brought by the executor or administrator; but if there be none,

or no action be brought by them within six months after the death, the action may be brought by all or any of the parties to be benefited by the result. (27 & 28 Vict. c. 95, s. 1.)

to felony. And the jury may give damages proportionable to the injury resulting from such death, to be divided among the parties for whose benefit the action is brought, in such shares as they shall by their verdict direct (i).

(i) The cases on the construction of the 9 & 10 Vict. c. 93 (usually called "Lord Campbell's Act") are numerous. They establish (among other things) that the jury are not entitled to take into their consideration, in assessing the damages, the feelings of the survivors as distinct

from their pecuniary loss. These and other points on the statute will be found adverted to, in Chapman v. Rothwell, 1 Ell. Bl. & Ell. 168; Duckworth v. Johnson, 4 H. & N. 653; and Pym v. Great Northern Railway Company, 4 B. & Smith,

396.

CHAPTER VII.

OF CIVIL INJURIES COGNIZABLE AT COMMON LAW.

HAVING in the course of the last chapter entered into some explanations with regard to the nature of the remedy by action at law generally, we now resume our inquiry into the various injuries which may be thus redressed, to the right apprehension of which we have deemed some preliminary acquaintance with the scheme of such actions. essential.

The rights which are severally due to the different members of the community, and the establishment and maintenance of which has been considered in this work as the great objects of municipal law,-were divided, (as we may remember,) into personal rights, rights of property, rights in private relations, and public rights (a). It will be convenient, therefore, in proceeding to a further investigation of our present subject, to subject civil injuries, (which are but the violations of so many rights,) to a similar distribution.

I. First, then, as to such injuries as affect personal rights, viz. the right of personal security, (comprising those of life, limbs, body, health and reputation,) and the right of personal liberty (b).

Of injuries which affect the life of man, it is sufficient to remark, that they are not merely civil wrongs, but,— where committed with intention to affect it,-amount to

(a) Vide sup. vol. I. p. 138.

(b) Ibid.

one of the most atrocious species of crimes (c). These therefore shall for the present be passed by, and reserved for the concluding Book of these Commentaries, viz. that which relates to the criminal law.

As to injuries affecting a man's limbs or body, these may be committed, 1. By threats (or menaces of bodily hurt), through fear of which a man's business is in fact interrupted. But it is to be noticed that a menace alone, without any consequent inconvenience, makes not the injury: but to complete the wrong, there must be both of them together (d). 2. By assault; which is an attempt or offer to beat a man without proceeding to touch him (e): 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, which Finch describes to be "an unlawful setting upon one's person" (f). 3. By battery; which is the beating of another. The least touching of another's person, wilfully or in anger, is a battery (g); for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it,—every man's person being sacred, and no other having a right to meddle with it in any manner (h). 4. By wounding; which consists in giving another some dangerous hurt, and is only an aggravated species of battery. 5. [By mayhem; which is an injury still more atrocious, and consists in violently depriving another of the use of a member proper

(c) In certain cases, an injury destroying life may by statute (as we have seen) form the subject of an action for damages on behalf of the family of the deceased in respect of the civil wrong thereby suffered; and this, even when the death is caused under circumstances amounting to felony on the part of the defendant. (Vide sup. p. 370.) (d) 3 Bl. Com. p. 120, citing Finch, L. 202.

(e) Bl. Com. ubi sup. See Reed v. Coker, 13 C. B. 850.

(f) Finch, ubi sup. (g) Bl. Com. ubi sup. See Coward v. Baddeley, 4 H. & N. 478.

(h) On a similar principle the Cornelian law De injuriis prohibited pulsation as well as verberation; distinguishing verberation, which was accompanied with pain, from pulsation, which was attended with none. (Ff. 47, 10, 5.)