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repair

aid them when resisted in the discharge of the duties imposed on them as guardians of the peace.?

1584 a Obstruction of highways by individuals has been already discussed. In England, municipal authorities,

And so of whether county or parish, have been held indictable at municipal common law for neglect in repairing thoroughfares, and in re in some cases a similar responsibility has been imposed of roads. in this country on counties and towns. Whoever, in fact, undertakes or accepts the duty, may be indictable for its non.discharge.* But this liability is in all our States limited and defined by statutes too numerous and intricate to be here analyzed. Criminal courts in such cases, also, are rarely appealed to, the civil remedy being usually preferred by private litigants in cases of injury through municipal neglect. On conviction, the repair of the road may be compelled as an abatement of the nuisance.

III. VOLUNTARY OFFICES. § 1585. A guardian, master, or keeper of an asylum, who has a helpless person under his special charge, and neglects to rightly care

which a man of ordinary courage would negligence in not putting down any unnot have been afraid. A. commits a lawful assembly, they are liable to be misdemeanor. R. v. Kennett, 5 C & prosecuted for a breach of their duty, P. 282.

The mode of dispersing an unlawful I Supra, $$ 652 a, 1555.

assembly may be very different accord. In R. v. Kennett, supra, it was ruled ing to the circumstances attending it in that if, on a riot taking place, a magis- each particular case ; and an unlawful trate neither reads the proclamation assembly may be so far verging towards from the Riot Act, nor restrains nor a riot, that it may be the bounden duty apprehends the rioters, nor gives any of the magistrates to take immediate order to fire on them, nor makes any steps to disperse the assembly ; and use of a military force under his com- there may be cases where the magismand, this is prima facie evidence of trates will be bound to use force to disa criminal neglect of duty in him; and perse an unlawful assembly. R. v. it is no answer to the charge for him to Neal, 9 C. & P. 431. Supra, $ 1555. say that he was afraid, unless his fear Supra, § 1473. arose from such danger as would affect 3 See supra, § 93. a firm man; and if, rather than appre- Supra, $ 1485. As to indictments hend the rioters, his sole care was for for neglect, see supra, $ 125. himself, this is also neglect.

6 See the cases in this relation classiIt is not only lawful for magistrates fied in Whart. on Neg. $$ 956 et seq. ; to disperse an unlawful assembly, even and see State v. Harsh, 6 Blackf. 346. when no riot bas occurred; bnt if they Supra, § 1426. As to indictinents do not do so, and are guilty of criminal against corporations, see supru, § 91. VOL. II.-27

417

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Guardian, for such helpless person, whereby the latter is exposed master, or

eper, to physical harm, is indictable for the neglect where inindictable for neglect jury results.? So of offi

§ 1586. The same reasoning establishes the indictacers of

bility for negligence of sea officers, engineers, conductors, ships and railroads. and brakesmen of railroads, when such negligence is in

discharge of duties specially undertaken by them, and when by it passengers or others are injured.? § 1587. An innkeeper who, when he has room in his house,

refuses to receive and duly entertain a traveller who tenSo of ind- ders a reasonable price for entertainment, is indictable at keepers.

common law. It should, however, be remembered that this duty is restricted to the entertainment of travellers in inns hold

I R. v. Smith, 42 L. T. (N. S.) 160; lin, 12 Mod. 445; R v. Ivens, 7C &P. 14 Cox C. C. 398 Supra, § 333 ; R. v. 213; Fell v. Knight, 8 M. & W 269 ; Friend, R. & R C. C. 20; R. v Hall v. State, 4 Harring. 132 ; State v. Warren, R. & R 48, n. ; R. v. Squire, Matthews, 2 Dev. & Bat. 424 ; Whart. 1 Russ C. & M. 80, 678 ; R. v. Bubb, 4 Prec 911, 912. It is otherwise as to Cox C. C. 455 ; R v. Marriott, 8 C. & intruders. Supra, § 625. P. 425 ; R. v. Pelham, 8 Q. B. 959; R. On this position, common to the Engv. Porter, L. & C. 394; 9 Cos C. C. 449; lish and the Roman common law, an R. v. Smith, L. & C. 607; 10 Cox C C. interesting question arises which is 82 ; People v. Cowley, 83 N. Y. 464; discussed by Bar, in his Lehre vom S C., 21 Hun, 415 ; State v. Hawkins, Causalzusammenhange, to which refer77 N. C. 494. As to omissions, see ence has been several times made. An supra, $S 152, 169, Assaults in such innkeeper refuses to receive a guest, cases are discussed supra, $$ 633, 635. who in consequence is obliged to wanThat a master is bound to supply an der in the woods during an inclement apprentice with medical attendance, night, and finally dies from freezing. See R. v. Smith, 8 C. & P. 153. Is there such a causal connection beWhether he is bound to take such care tween the innkeeper's act and the of other servants depends upon the death as to make the innkeeper reexclusiveness of his control. He is sponsible for the homicide ? The liable if by his own engagement the answer is yes, supposing that the inn servant has no other means of relief. is the sole house in the vicinity in Smith, Mast. & Ser. 118; Wennell v. which shelter could have been obAdney, 3 B. & P 247 ; Clark v. Water- tained ; but not otherwise. And this man, 7 Vt. 76.

Supra, § 360. Under coincides with the view heretofore exStat. 14 & 15 Vict. c. 11, neglect to pro- presed, that A. is only responsible for vide sufficient maintenance to a depen- the death of B. resulting from A.'s dent infant, so as to injure health, is negligent discharge of duty, when on made indictable.

A. the duty in question was specially 3 See supra, $$ 337, 343, 349, 613. thrown. • Hawk. P. C. 714, s. 2; R. v. Lucl

ing out to be such. But an inn-keeper is not bound to receive a person who might communicate disease or cause serious inconvenience to occupants of the inn.?

§ 1588. Officers holding responsible posts in great business or social institutions, in which vast interests depend on Ignorance fidelity to official trust, are like statutory officers in and want this respect, that negligence on their part is justified as a deneither by ignorance of law nor by mistake of fact. fence. The duties of their office, as well as the necessities of society, require them to be both well informed and vigilant; and if they make mistakes, however honest, they must bear the consequences. If ignorance were a defence to an indictment against railroad or similar officers, for negligence, the greater their ignorance, the more complete their impunity. The law would, in such case, give a premium to ignorance and sloth. Whatever good specialists, in their line, are accustomed to know, this they are bound to know.' And when charged with a violation of the law (as distinguished from negligence in the application of the law), then ignorance of the law is no defence.

It is otherwise, however, with voluntary officers, who are legally clothed with no specific trust, and invested with no fiduciary care over others. And non-specialists, when charged with negligence,

i In an English case, decided in the bar and claimed to be served with 1877, the evidence was that the defen- refreshments, which the defendant dant was the proprietor of a hotel, refused him. On an indictment chargand that attached to the hotel and ing the defendant, as an innkeeper, under the same roof and license, but with refusing refreshment to the prosewith a separate front door, was a bar cutor, it was ruled that he could not be in which persons casually passing by convicted : first, because the refreshobtained refreshments. The prosecu- ment bar was not an inn; secondly, tor, who was a near neighbor, had because the prosecutor was

not a been in the habit of coming to the bar traveller ; thirdly, because, had it with several large dogs, which had been otherwise, the defendant had been found an annoyance to other reasonable ground for his refusal. R. guests ; and letters had passed in 3. Rymer, L. R. 2 Q. B. D. (C. C. R.) which the defendant had objected to 136 ; 13 Cox C. C. 378. the dogs been brought into the bar, ? Supra, § 1436. and the prosecutor had asserted his 8 Supra, $$ 84 et seq. right to bring them. The prosecutor Supra, § 87. subsequently, while taking a walk for 5 Supra, $ 84. pleasure, went with one large dog to

are only liable for the lack of such knowledge and diligence as is common to non-specialists of their class.

It need scarcely be added that in no prosecutions for neglect is want of malice a defence. As has been shown, one of the conditions of negligence is want of malice.

mission.

IV. EVIDENCE. $ 1589. It is enough, as already shown, to prove that the person

charged with misconduct in office held himself out to be Not necessary to an officer of the character described in the indictment. prove offlcer's com- The reason is twofold: first, his pretension to hold the

office is an admission that he is such an officer; and, secondly, he is liable, even though an usurper, for misconduct in

the office thus wrongfully assumed.3

1590. Malice, corruption, or evil intent, when es. to be infer- sential to the case, may be inferred, as presumptions of entially

fact, from the evidence.

Malice and corruption

proved.

V. RESISTANCE TO ILLEGAL ACTS OF OFFICERS. $ 1591. To what extent illegal acts of officers can be resisted by individuals has been already incidentally discussed.

1 Supra, $$ 87, 125.

Maberry, 3 Strobh. 144; State v. Cans? Supra, § 125.

ler, 75 N. C. 442; State r. Long, 76 • Supra, § 1570, 1572 d; infra, Ibid. 254; though see, in some respects 1617; Whart. Crim. Ev. $$ 164, 833. qualifying above, State v. McEntyre, 3 See, as sustaining this point, R. v. Ired. 171. Borrett, 6 C. & P. 124 ; Com. v. Fow • People v. Bogart, 3 Parker C. R. ler, 10 Mass. 290; People v. Cook, 4 143. Supra, § 1570; Whart. Crim. Selden, 67; State v. Perkins, 4 Zab. Ev. $$ 6–16, 23, 734. 409; Com. v. Rupp, 9 Watts, 114; Supra, 8 646. State v. Hill, 2 Spear, 150 ; State v.

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CHAPTER XXIX.

LIBEL.

I. DEPAMATORY LIBELS.

A defamatory libel is a publica

tion calculated to insult or injure the reputation of any

person, § 1594. Test of injury is provocation to

wrath or exposure to public

hatred or ridicule, $ 1595. Hence imputation of crime is a

libel, § 1596. And so of reflecting on a man

professionally, $ 1597. And so of whatever is the sub

ject of civil action without

special damage, $ 1598. And 60 of villifying deceased

persons, § 1599. Unconscious and helpless per.

sons are thus protected, § 1601. Corporations may prosecute for

libel, § 1602. Unwritten words not usually

libels, § 1603. But otherwise as to pictures or

sigos, 1604. II. BLASPHEMOUS LIBELS.

Blasphemy indictable at com

mon law, § 1605. III. OBSCENE LIBELS.

Obscenity indictable at common

law, § 1606. Philanthropic or scientific intent

no defence, $ 1607. Procuring obscene print for dis

tribution is indictable, $ 1608. Obscenity need not be fully set

forth, $ 1609. IV. SEDITIOUS LIBELS.

Libels aimed maliciously at the

existence of government in

dictable, $ 1611. So of libels on executive, $ 1612.

So of libels on foreign powers,

§ 1612 a. So of libels on legislature, §

1613. So of libels on courts, § 1614. Seditious words may be indict

able, 1615. Public officer prosecuting need

not prove his appointment, $

1617. V. PUBLICATION.

To be seen by third person, $

1618. When libel is sealed, intent to

provoke breach of peace must

be charged, § 1619. Venue may be in places of mail.

ing or of delivery, $ 1620. Post-mark may be evidence of

mailing, $ 1621.
Selling is publication, $ 1622.
Instigator is principal, $ 1623.
Printing not per se publication,

$ 1624.
Circulation proof of publication,

1625. Of non-obtainable libel parol

proof is admissible, $ 1626. Master responsible for servant,

§ 1627. Admissions may prove libel, s

1628. Corporations may be indicteď for

libel, $ 1628 a. VI. WHAT COMMUNICATIONS ARE PRIV.

ILEGED,
Bona fide confidential communi-

cations are privileged, § 1629. Meddlesomeness is the test, $

1630. Master's character of servant is privileged, § 1631.

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