tion brought against him he has been tried for the felony and thereof convicted, Markham v. Cobb, W. Jones 147, Latch 144; Dawkes v. Coveneigh, Styles 346; 1 Hale's P. C. 546; or acquitted, Crosby v. Leng, 12 East 409. It thus appears that even in England the familiar phrase "the action is merged in the felony" is not at all times and literally true. 6 Barn. & Cress. 551. In New York and Virginia, as has been mentioned ante, p. 500, the commission of a felony does not stay or merge any civil remedy; the same may be true of some of the other states.

5. Damage for which action is brought must not be a remote but a proximate and natural consequence of the act complained of.

It is the opinion of the court of exchequer that generally speaking, where an injury arises from the misconduct of another, the party who is injured has a right to recover from the injuring party for all the consequences of that injury. Pollock, C. B. wished to guard against laying down the proposition so universally; but of this he was quite clear that every person who does a wrong is at least responsible for all the mischievous consequences that may reasonably be expected to result, under ordinary circumstances, from such misconduct. Rigby v. Hewitt, 5 W. H. & G. 240. His opinion is that a person is expected to anticipate and guard against all reasonable consequences, but that he is not expected to anticipate and guard against that which no reasonable man would expect to occur. Greenland v. Chaplin, Id. 248.

The court of appeals of Kentucky considers it is true in general that a man is entitled to reparation for every damage he sustains from the unlawful action or omission of another. But the damages must be the direct and immediate, or at least proximate and natural consequence of the act or omission complained of. It will not do to carry it to every consequence, however remote, which can be traced to the particular action or omission, and much less to such things as are not a natural consequence and may have arisen from other and extraneous causes. Bosworth v. Brand, 1 Dana 377. The decision in this case did not extend the right of the owner of a slave so far as has been done in South Carolina.

The statutes of South Carolina having subjected to fine and imprisonment one who sells to a slave any article without license, and having provided especially for the punishment of him who sells or gives ardent spirits to a slave, an action on the case has been maintained in that state by the owner of a

slave against a shop-keeper who for his own gain, in violation of the statute, and to the plaintiff's wrong, sold and delivered ardent spirits to his slave by means whereof the slave became intoxicated and died. The question was whether the connexion between the injury and the alleged consequences was not too remote. The wrongful act of the sale and delivery of spirits to a slave being established, it was left to the jury to decide whether the drinking, intoxication, exposure and death of the slave were the natural and probable consequences of that wrongful act. The jury being of opinion that they were, the defendant was held answerable to the plaintiff for the value of the slave. Harrison v. Berkeley, 1 Strobhart 525.

6. Whether one wrong-doer can recover damage from another.

The French law allows a trespasser who has paid the whole damage to maintain an action for contribution against his cotrespasser. Pothier on Oblig. 282. The general rule of the common law is that where two participate in the commission of a criminal act and one suffers damage thereby, he is not entitled to contribution from the other. See ante, p. 300 and 439. But an action is not in every case disallowed by one wrong-doer against another. In constructing a rail-road in Lowell the agent of the rail-road company who had the superintendence of their works was guilty of negligence in omitting to see that barriers were put up when the works were left at night. For the injury resulting from this negligence the town was held responsible for damages to the injured parties (see ch. 70, $ 1,) and then recovered against the company; leaving the company to seek indemnity from their negligent agent. Lowell v. Boston & Lowell Rail-road Co. 23 Pick. 24.

CHAPTER LII.

ACTION FOR AN ASSAULT ON, OR FALSE IMPRISONMENT OF, THE PLAINTIFF. WHEN ACTION LIES FOR IMPRISONMENT OR OTHER TRESPASS AT SEA.

1. For an assault.

Acts short of actual striking, will in law constitute an assault. A defendant may be deemed guilty of an assault when the facts shew a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execu

Read v. Coker, 13 Com. Bench (4 J. Scott) 860, 76 Eng. Com. Law Rep. 860. An action will lie for an assault, notwithstanding the defendants were on the prosecution of the plaintiff indicted for the same assault, convicted thereof and fined. Jacks v. Bell &c. 3 C. & P. 316, 14 Eng. Com. Law Rep. 325.

2. For imprisonment under process civil or criminal.

Where a magistrate has a general jurisdiction over the subject matter, one who applies to him for a warrant that another may be taken into custody, is deemed thereby only to make an appeal to the magistrate to exercise his jurisdiction: the imprisonment, and what takes place in the magistrate's presence, are referred to his authority; and the complainant is not liable to an action of trespass. Barber v. Rollinson, 1 C. & M. 330, 3 Tyrwh. 266; Brown v. Chapman, 6 Man. Gr. & Scott 365, 60 Eng. Com. Law Rep. It is so although the magistrate makes a mistake in thinking it a case within his authority and grants a warrant which is not justifiable in point of law. West v. Smallwood, 3 M. & W. 418.

When a man is illegally imprisoned under an execution issued by a justice, an action for false imprisonment may lie against the party at whose instance the process was issued and by whose direction it was executed. Getting the process which he asks for, he takes it at his peril. Curry v. Pringle, 11 Johns. 444. But the action will not lie against him, when under a statute pointing out what he and the justice are respectively to do he merely makes the oath that it requires and requests an execution, that is such execution as the law entitles him to. That under the law being a fi. fa., the party

will not be liable because the justice by mistake issues a ca. Taylor v. Trask, 7 Cow. 249.

sa.

3. When action will lie against an attorney as well as his client.

If an attorney does no more than set a court of competent jurisdiction in motion on behalf of his client, he is no trespasser, notwithstanding that such court should, on his motion, do an act of trespass by its officers. But when in an action brought against him in respect of such a trespass, he, by a special plea, admits, and undertakes to justify, his concurrence in it, if he should fail to make out such justification, the action will be maintained. Kenning v. Buchanan, 8 Man. Gr. & Scott 291, 65 Eng. Com. Law Rep.

An action of trespass has been maintained against an attorney as well as his client for wrongfully and illegally causing a party to be taken and imprisoned upon a ca. sa. issued without any judgment to warrant it; as where on a judgment against an administratrix to be levied of the decedent's goods, a ca. sa. issued against her body. All being principals in trespass, judgment was entered for the plaintiff jointly against the client, the nominal actor, and against the attorney, the real actor, in suing out the ca. sa. and delivering it to the officer to be executed. Barker v. Braham &c. 3 Wils. 368. In this case the court from which the ca. sa. issued had set it aside and discharged the party from imprisonment before she brought her action of trespass.

Where an attorney's agent was an actor in signing judg ment and taking out execution after the debt was paid to the attorney, it was considered that according to Barker v. Braham, both the attorney and his client were liable as trespassers. Bates v. Pilling &c. 6 Barn. & Cress. 38, 13 Eng. Com. Law Rep. 104.

4. When action will lie for imprisonment or other trespasses

at sea.

An action at common law for false imprisonment will not lie, where the imprisonment was merely in consequence of taking a ship as prize, though the ship should afterwards be acquitted in the admiralty, as not being lawful prize. Le Caux v. Eden, Doug. 594. The cases, English and American, are reviewed by Kent, C. J. in Novion v. Hallett, 16 Johns. 327; and these conclusions are deduced, that if the original taking was as prize the court of admiralty has exclu

sive jurisdiction of the case; that the jurisdiction is not affected by the fact that the capture was illegal or violent or unjust; that where the admiralty jurisdiction has once attached, by means of such taking a prize, it can never be divested by any matter subsequent so as to give a court of common law jurisdiction of the case as a tort or trespass; and that the admiralty having jurisdiction of the principal subject, thereby acquires jurisdiction of all the incidents. 18 Johns. 291.

Yet under some circumstances courts of common law have jurisdiction of actions to recover damages for marine torts. 2 Browne's Civil & Adm. Law 111. Many cases recognize the principle that for seizing, stopping and taking a ship on the high seas, not as prize, an action lies at common law. Le Caux v. Eden, Dougl. 526; Lindo v. Rodney, Id. 591, note 1; Smart v. Wolff, 3 T. R. 323. A marine trespass free from the circumstance that the vessel was taken as prize is deemed cognizable in a common law court as well as in the Instance court of the admiralty. Percival v. Hickey, 18 Johns. 293.

CHAPTER LIII.

ACTION BY A HUSBAND FOR CRIMINAL CONVERSATION WITH HIS WIFE.

If a husband ill-treats his wife so that she is forced to leave his house through fear of bodily injury, a person may safely, nay honourably, receive and protect her. Ante, p. 343, 348. Of course in such case no action is maintainable therefor. Berthon v. Cartwright, 2 Esp. 480.

But a husband may maintain an action for criminal conversation with his wife. On proof of the marriage and of the adultery having occurred before the action was brought, the husband recovered damages in Catherwood v. Caslon, 1 Car. & Marsh. 431, 41 Eng. Com. Law Rep. 237.

Lord Kenyon held that the action would not lie when the plaintiff and his wife had before the adultery, agreed to live separately. The other judges concurred. Considering the gist of the action to be the loss of the comfort and society of the wife, Ashurst, J. said, it followed that if the husband separate himself from her, he cannot be said to be deprived of