aid them when resisted in the discharge of the duties imposed on them as guardians of the peace.1 And so of municipal in repair neglect of roads. § 1584 a Obstruction of highways by individuals has been already discussed. In England, municipal authorities, whether county or parish, have been held indictable at common law for neglect in repairing thoroughfares, and in some cases a similar responsibility has been imposed in this country on counties and towns. Whoever, in fact, undertakes or accepts the duty, may be indictable for its non-discharge.1 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." 5 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 not have been afraid. A. commits a misdemeanor. R. v. Kennett, 5 C & P. 282. 1 Supra, §§ 652 a, 1555. In R. v. Kennett, supra, it was ruled that if, on a riot taking place, a magistrate neither reads the proclamation from the Riot Act, nor restrains nor apprehends the rioters, nor gives any order to fire on them, nor makes any use of a military force under his command, this is prima facie evidence of a criminal neglect of duty in him; and it is no answer to the charge for him to say that he was afraid, unless his fear arose from such danger as would affect a firm man; and if, rather than apprehend the rioters, his sole care was for himself, this is also neglect. It is not only lawful for magistrates to disperse an unlawful assembly, even when no riot has occurred; bnt if they do not do so, and are guilty of criminal VOL. II.-27 negligence in not putting down any unlawful assembly, they are liable to be prosecuted for a breach of their duty. The mode of dispersing an unlawful assembly may be very different according to the circumstances attending it in each particular case; and an unlawful assembly may be so far verging towards a riot, that it may be the bounden duty of the magistrates to take immediate steps to disperse the assembly; and there may be cases where the magistrates will be bound to use force to disperse an unlawful assembly. R. v. Neal, 9 C. & P. 431. Supra, § 1555. Supra, § 1473. 3 See supra, § 93. 4 Supra, § 1485. As to indictments for neglect, see supra, § 125. 6 See the cases in this relation classified in Whart. on Neg. §§ 956 et seq.; and see State v. Harsh, 6 Blackf. 346. • Supra, § 1426. As to indictments against corporations, see supra, § 91. 417 Guardian, master, or keeper, indictable for such helpless person, whereby the latter is exposed to physical harm, is indictable for the neglect where infor neglect jury results.1 So of officers of ships and railroads. §1586. The same reasoning establishes the indictability for negligence of sea officers, engineers, conductors, 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 tenders a reasonable price for entertainment, is indictable at common law. It should, however, be remembered that this duty is restricted to the entertainment of travellers in inns hold So of innkeepers. 1 R. v. Smith, 42 L. T. (N. S.) 160; 14 Cox C. C. 398 Supra, § 333; R. v. Friend, R. & R C. C. 20; R. v Warren, R. & R 48, n.; R. v. Squire, 1 Russ C. & M. 80, 678; R. v. Bubb, 4 Cox C. C. 455; R v. Marriott, 8 C. & P. 425; R. v. Pelham, 8 Q. B. 959; R. v. Porter, L. & C. 394; 9 Cox C. C. 449; R. v. Smith, L. & C. 607; 10 Cox C C. 82; People v. Cowley, 83 N. Y. 464; S C., 21 Hun, 415; State v. Hawkins, 77 N. C. 494. As to omissions, see supra, §§ 152, 169. Assaults in such cases are discussed supra, §§ 633, 635. That a master is bound to supply an apprentice with medical attendance, see R. v. Smith, 8 C. & P. 153. Whether he is bound to take such care of other servants depends upon the exclusiveness of his control. He is liable if by his own engagement the servant has no other means of relief. Smith, Mast. & Ser. 118; Wennell v. Adney, 3 B. & P 247; Clark v. Waterman, 7 Vt. 76. Supra, § 360. Under Stat. 14 & 15 Vict. c. 11, neglect to provide sufficient maintenance to a dependent infant, so as to injure health, is made indictable. 2 See supra, §§ 337, 343, 349, 613. Hawk. P. C. 714, s. 2; R. v. Luel lin, 12 Mod. 445; R v. Ivens, 7C & P. 213; Fell v. Knight, 8 M. & W 269; Hall v. State, 4 Harring. 132; State v. Matthews, 2 Dev. & Bat. 424; Whart. Prec 911, 912. It is otherwise as to intruders. Supra, § 625. On this position, common to the English and the Roman common law, an interesting question arises which is discussed by Bar, in his Lehre vom Causalzusammenhange, to which reference has been several times made. An innkeeper refuses to receive a guest, who in consequence is obliged to wander in the woods during an inclement night, and finally dies from freezing. Is there such a causal connection between the innkeeper's act and the death as to make the innkeeper responsible for the homicide? The answer is yes, supposing that the inn is the sole house in the vicinity in which shelter could have been obtained; but not otherwise. And this coincides with the view heretofore expresed, that A. is only responsible for the death of B. resulting from A.'s negligent discharge of duty, when on A. the duty in question was specially thrown. 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.2 Ignorance and want of malice as a de fence. § 1588. Officers holding responsible posts in great business or social institutions, in which vast interests depend on fidelity to official trust, are like statutory officers in this respect, that negligence on their part is justified neither by ignorance of law nor by mistake of fact. 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, 1 In an English case, decided in 1877, the evidence was that the defendant was the proprietor of a hotel, and that attached to the hotel and under the same roof and license, but with a separate front door, was a bar in which persons casually passing by obtained refreshments. The prosecutor, who was a near neighbor, had been in the habit of coming to the bar with several large dogs, which had been found an annoyance to other guests; and letters had passed in which the defendant had objected to the dogs been brought into the bar, and the prosecutor had asserted his right to bring them. The prosecutor subsequently, while taking a walk for pleasure, went with one large dog to the bar and claimed to be served with Supra, §§ 84 et seq. 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.2 Not necessary to IV. EVIDENCE. § 1589. It is enough, as already shown, to prove that the person charged with misconduct in office held himself out to be an officer of the character described in the indictment. 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 prove offcer's commission. Malice and corruption § 1590. Malice, corruption, or evil intent, when esto be infer- sential to the case, may be inferred, as presumptions of fact, from the evidence. entially 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. 2 Supra, § 125. Supra, § 1570, 1572d; infra, § 1617; Whart. Crim. Ev. §§ 164, 833. See, as sustaining this point, R. v. Borrett, 6 C. & P. 124; Com. v. Fowler, 10 Mass. 290; People v. Cook, 4 Selden, 67; State v. Perkins, 4 Zab. 409; Com. v. Rupp, 9 Watts, 114; State v. Hill, 2 Spear, 150; State v. 420 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 so of villifying deceased persons, § 1599. Unconscious and helpless persons are thus protected, § 1601. Corporations may prosecute for libel, § 1602. Unwritten words not usually libels, § 1603. But otherwise as to pictures or signs, 1604. II. BLASPHEMOUS LIBELS. Blasphemy indictable at common law, § 1605. III. OBSCENE LIBELS. Obscenity indictable at common IV. SEDITIOUS LIBELS. Libels aimed maliciously at the existence of government indictable, § 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 indictable, 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 Venue may be in places of mail- Selling is publication, § 1622. Circulation proof of publication, Of non-obtainable libel parol proof is admissible, § 1626. Master responsible for servant, § 1627. Admissions may prove libel, § 1628. Corporations may be indicted for libel, § 1628 a. VI. WHAT COMMUNICATIONS ARE PRIV ILEGED. Bona fide confidential communications are privileged, § 1629. Meddlesomeness is the test, § 1630. Master's character of servant is privileged, § 1631. |