CHAP. VI. ANTICIPATION OF sum so paid, and his costs as between attorney and client in the compromised suit, and this, notwithstanding he had not HOSTILITIES. given notice to the vendor of the suit against him; because in an action on a general guarantee, the only effect of such want of notice to the indemnifying party, is to let in proof on his part, that the compromise was improvidently made, and it lies on him to establish that fact, which was not done in the then present case. (r) However, it is usual and proper to give an early notice of the adverse claim, and to advert to the covenant or contract of indemnity, and to require the party to afford evidence and assist in defence of the claim, or that otherwise the party giving notice will suffer judgment by default or resist the claim as he may be advised, and that he will proceed against the party to whom the notice is addressed, to recover indemnification and all costs and expenses that he may sustain, and such notice may be in the subscribed form. (y) And although the point has been disputed, (z) yet it seems that the party expressly or impliedly indemnified, although it be apparent that the adverse claim is well founded, may nevertheless resist it, especially if it Form of notice to an indemnifying party. of (x) Smith v. Compton and others, 3 Bar. & Adolp. 407. (y) Sir,-Whereas by an indenture, bearing date, &c., and made between, &c. you conveyed to me an estate and premises, situate, &c., for and in consideration of the sum by me paid to you for the same, and you thereby covenanted that, &c. [here copy the covenant for good title or quiet enjoyment, or state in like manner the other contract of indemnity express or implied.] And whereas a claim of the said estate has been made by E. F. of, &c., and an action of ejectment bath been commenced and is depending against me by and at the suit of the said E. F. for the recovery of the possession of the said estate and premises, [or whatever else may be the pending proceeding.] Now, therefore, I hereby require you on or before the day of, inst., fully, and particularly, and satisfactorily to state to me in writing and otherwise, whether you are in possession of any and what facts or grounds of defence and evidence upon or under which I may be enabled effectually to resist the said claim, and successfully defend the said action, and whether or not it is your wish that I should defend the said action, and on what grounds and evidence; and in default of your compliance with this notice, and your stating and showing to me good and sufficient grounds for defending the said action with success, I hereby further give you notice that in order to avoid the inconvenience and loss that would result from my immediately submitting to the said claim and action, I shall endeavour to resist the same and retain possession of the said estate and premises as long as I may be enabled, or I shall take such proceedings, either by way of compromise, in case the said claim should appear to be well founded, or otherwise, as I may be advised in that behalf, and in case you do not immediately make an acceptable arrangement the whole of the damages, costs and expenses, that I may sustain must be borne and defrayed by you. And that if you require me to defend the said action I expect and require you, from time to time, to supply sufficient money and evidence for that purpose, and further that for whatever trouble, damage, expense or costs, or interest of monies, I shall or may have to bear, or expend, or disburse, I shall hold you responsible, and shall hereafter seek to recover compensation in an action against you upon your said covenant, (or, "contract," or, "liability to indemnify me"). Dated, &c. Your's, &c. 5 Esp. R. 1, S. P.; see Bleaden v. Charles, 7 Bing. 246. ANTICIPATION OF be a debt of magnitude that he could not immediately pay, and CHAP. VI. he might even delay the payment by bringing a writ of error for delay and yet recover all the costs he may thereby sustain; HOSTILITIES. for a party so indemnified is not to be expected or required to submit to an immediate execution when the party who has engaged to indemnify him neglects to come forward and perform his engagement. (a) (a) Smith v. Compton, 3 Bar. & Adolp. 467. According to Chilton v. Whiffin, 3 Wils. 13; Sandback v. Thomas, 1 Stark. R. 306; Sparkes v. Martindale, 8 East, 593; and Ex parte Marshall, 1 Atk. 262; Chitty on Bills, 8th ed. 349, even the costs of a bill in equity, or a writ of error 217. CHAP. VII. REMEDIES BY PARTIES, &C.. CHAPTER VII. OF REMEDIES BY ACTS OF PARTIES THEMSELVES WITHOUT ANY EITHER TO Prevent, or remove, or ABATE INJURIES, OR TO OBTAIN SATISFACTION; AND OF PARTIES AP- dies, without legal assistance in general. 1. Of preventive IT is proposed in this chapter to consider those preventive and other reme- and other remedies, of which parties themselves, and their relatives and others, may avail themselves summarily, and without the assistance of the law or its officers, either to prevent or remove injuries. It is obvious that in many cases the most speedy justice could not adequately supply the absence of such immediate and necessary remedies, nor indeed could the natural impulse of self-defence against sudden and immediate aggressions be restrained. (a) The law, therefore, permits parties to adopt certain modes of resistance, and merely interferes to modify and regulate the means to be employed. It has (a) 2 Rol. Ab. 546; 3 Bla. C. 3, 4; and see per Littledale, J. in Cubitt v. Porter, 8 Bar, & Cres. 269. indeed been observed that laws for prevention of injuries are even better than those for compensation or punishment, (b) for they prevent the loss to the individual, and the necessity for suing or prosecuting the wrong-doer, at the risk of his being wholly unable to make compensation still less to reimburse the expenses of legal proceedings. (b) Preventive remedies are principally divisible into, first, those by the act of a party himself, or his relative, or a stranger, without the aid of legal process, or any authorized officer; or secondly, they are, by the intervention of some legal authority or proceeding, either summary or by more formal proceeding. In the present chapter we will consider the former, and in the next the latter. We will consider this very important branch of the law, 1st, As relates to the Prevention or Removal of Injuries to the Person of the Party himself or his relative; 2dly, As relates to Personal Property; and 3dly, As respects Real Property.. But before a party adopt either of these summary remedies, it is essential for him to keep in view the rule to which we have before adverted, viz. that if a party obtain redress by any such summary remedies of his own, he is not afterwards allowed to sue for the temporary injury, (c) and consequently that if the damages already sustained be considerable, and an adequate object of litigation, it is better to proceed by action. (d) It seems to be settled, at least in the case of a private nuisance, that a party has only an option, and cannot abate it and also sue for damages. (e) But that doctrine must be received with some qualification, for it would not extend to receiving back an apprentice after he had long been detained and voluntarily returned. (ƒ) CHAP. VII. REMEDIES BY When a party cannot adopt a preventive remedy and also an action. the means of Another caution is essential, namely, that the means adopted Cautions as to either by resistance, defence, or re-caption, must always be pro- prevention. portioned to the occasion, and that any excess of violence may subject the party to an action; and in case of unjustifiable, or unnecessary, or avoidable homicide, or mayhem, to punishment. These degrees vary according to the subject-matter, and to the felonious or other violence, or improper conduct of the aggressor, and the subject-matter injured or attempted to be injured; thus (b) Willcock v. Windsor, 3 Ear. & Adolp. 43; Veneghan v. Attwood, 1 Mod. 202. (c) Ante, 20. (d) Ante, 20. (e) Baten's case, 9 Co. Rep. 55; 3 Bla. C. 219, 220, and yet this is contrary to the doctrine in trover, viz. that the mere re storation of the goods after a conversion REMEDIES BY CHAP. VII. where a felonious attack is made upon the life of another, he PARTIES, &c. may justify every homicide in self-defence, and a woman may justify homicide to prevent a rape; whereas in defence of goods or land against a mere misdemeanor, at most a battery would in ordinary cases be justifiable; and a wounding or mayhem, occasioned by the use of a deadly or dangerous weapon, would be highly criminal. In all cases where a private injury is to be prevented or abated, or the party complaining otherwise acts for himself, it is an established rule that he should do no more than the necessity of the case requires when the excess might ́be in any way injurious to another—a principle which pervades every part of the law of England, criminal as well as civil, and indeed belongs to all law that is founded on reason and natural equity and justice. (g) Supposing, therefore, the assailant should be too powerful to be resisted by ordinary means, the party wrongfully attacked cannot (excepting when his own death, or a felony, may reasonably be expected,) make up for the deficiency of his strength by resorting to deadly arms, except to intimidate, but should seek redress by the intervention of peace officers or other legal proceedings. The degrees of force and modes to be adopted in resistance or removal of injuries require very particular attention, and should therefore be accurately defined. Many of the oldest cases, and most of the principles applicable throughout this subject, are admirably arranged and commented upon in Mr. East's excellent Treatise on Pleas of the Crown, in regard to criminal, or excusable, or justifiable homicide, and which may be readily applied to minor injuries, committed in defence of person or property; (h) for it is obvious that whenever a homicide might be justified or excused, a wounding or less degree of violence would also be legal or excused. With respect to the prevention of injuries by a party's own act, the legal means to be adopted, whether defence of person, personal property, and real property, and whether of house or land, materially differ, as well with respect to the subject-matter expected to be injured, as to the nature of the expected injury. Thus in the necessary or prudent defence of life, or the resistance of any forcible felony, even the killing of another may be justifiable; thus, if an immediate burglary or the burning of an inhabited house be threatened, and reasonably appre (g) Per Dallas, J. in Deane v. Clayton, 1 J. B. Moore, 210, 232, 234. (h) 1 East, P. C. title Homicide, 198 to 392, and see id. tit. Mayhem. 392, and tit. Assaults, 406. |