CHAPTER V.

EXCUSABLE TRESPASSES DEFENSE OF SELF, OF THIRD PERSONS, AND OF PROPERTY— RECAPTION OF PROPERTY.

28. Defense of self.-To defend one's self by force against force is a recognized right of every man, and when the defendant in a civil action can show that the plaintiff was the real aggressor, no recovery can be had for the injury suffered by the plaintiff. But the right of defense of self, or of relatives, or of property, must not be abused. The force employed to repel an attack must not be out of proportion to the necessities of the occasion.21 It must not exceed such force as appears to a man, or rather would appear to the average reasonable man, at the time, to be necessary to protect himself against the aggression; but he may be justified under such circumstances in using force although he was not actually in danger.23 Where, in fact, the defendant was the aggressor,24 or where he used more force than was reasonably necessary for his protection, or, after the assault had ended and danger was past, he struck or beat the plaintiff by way of revenge, he cannot succeed in a justification of self-defense.25 Damage may be done to personal property in legitimate self

21 Cockcroft v. Smith, 2 Salk. 642 (Eng.), LEADING ILLUSTRATIVE CASES. 22 Rowe v. Hawkins, 1 F. & F. 91 (Eng.); Morris v. Platt, 32 Conn. 75. 23 Courvoisier v. Raymond, 23 Colo. 113, 47 Pac. 284.

24 Morganstein v. Nejedlo, 79 Wis. 388, 48 N. W. 652.

25 Ogden v. Claycomb, 52 Ill. 365, LEADING ILLUSTRATIVE CASES.

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protection. Thus, if one's premises are invaded by a dog of ferocious disposition, he may kill the dog if such action seems necessary to protect himself, his family, or his property. Or, where one is being attacked by a dog and in danger of being bitten, it is lawful to shoot the dog on the spot.27 But, where a dog ran toward the defendant and snapped at him, and then, as the gun was raised, ran away, the shooting of the dog was not justified.28

29. Same subject-Cross-actions. In a situation where the person assaulted has repelled the assailant with more force than is necessary for the purpose of self-protection, it is held that he becomes a trespasser as to the excess of force used, that both parties are then in the wrong, and that each can maintain an action against the other, the party originally assailed because of the unlawfulness of the first assault, and the original assailant because of the excess of force used by the other in defending himself. The idea that there may be a set-off is, however, sometimes expressly denied. "We think that these are not matters of set-off; that the one cannot be merged in the other; and that each party has been guilty of a wrong for which he has made himself liable to the other. There have, in effect, been two trespasses committed: the one by the assailant in commencing the assault, and the other by the assailed party in using the excessive force; and, upon principle, we do not see why the one can be an

26 Keck v. Halstead, 2 Lutwyche 1494 (Eng.).

27 Credit v. Brown, 10 Johns. 365 (N. Y.).

28 Morris v. Nugent, 7 C. & P. 572, 32 E. C. L. 764 (Eng.).

answer to the other, any more than an assault committed by one party on one day can be set off against one committed by the other party on another day. The only difference would seem to consist in the length of time that has elapsed between the two trespasses." 29 But the legal possibility of crossactions for damages is recognized. "Both parties being injured, and one having brought suit, and the other having filed a plea of set-off, we have the rather unusual instance of cross-actions for damages growing out of the same affray. While this is unusual, it is by no means legally impossible; for, even though the party first assaulted is entitled to recover for the battery, he may have used excessive force, or beyond what was necessary for his defense, and thereby so put himself in the wrong as to become liable to the defendant, although the defendant was also liable to him." 30

30. Defense of third persons.-The immunity which attaches to the defense of one's self against an unlawful aggression extends, under about the same limitations, to the defense of persons closely allied to the defendant. Thus, a person is justified in using sufficient force to protect his wife, children or other members of his family, provided the circumstances be such as to induce one having reasonable judgment to intervene to prevent the infliction of injury. "His whole defense was based on whether or not he in good faith believed that one of his sons

29 Dole v. Erskine, 35 N. H. 503.

30 McNatt v. McRae, 117 Ga. 898, 45 S. E. 248, LEADING ILLUSTRATIVE CASES.

was then and there in danger of bodily harm about to be inflicted upon him by the plaintiff, and that he used no more force than was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to protect his son from injury at the hands of the plaintiff."31 This principle extends to all family relations,32 and a child may interfere to protect his parent,33 and a brother to protect his brother.34 Likewise in the relation of master and servant, a servant may justify a battery in protection of his master,35 and, apparently, a master in protection of his servant.86

31. Defense of personal property.-"In defense of my goods or possessions, if a man endeavors to deprive me of them, I may justify laying hands upon him to prevent him; and in case he persists with violence, I may proceed to beat him away. 9937 Just as another's animal might be killed by one in selfdefense, so such an animal may be destroyed if it threatens damage to one's chattels. A dog or cat which is in the habit of destroying rabbits in a warren may be killed while trespassing therein,38 or minks, the property of the defendant, may be destroyed while in the act of attacking the plaintiff's geese, or a sheep-killing dog, or a dog in the act

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31 Downs v. Jackson, 128 S. W. 339 (Ky.); Tompkins v. Knut, 94 Fed. 956, LEADING ILLUSTRATIVE Cases.

32 Leward v. Basely, 1 Ld. Raym. 62 (Eng.).

33 Drinkhorn v. Bubel, 85 Mich. 532.

34 Mellen v. Thompson, 32 Vt. 407, LEADING ILLUSTRATIVE Cases.

35 Seaman v. Cuppledick, 1 Owen 150 (Eng.).

36 Fortune v. Jones, 30 Ill. App. 116.

37 3 Blackstone, Commentaries, p. 121.

38 Wadhurst v. Damme, Cro. Jac. 45 (Eng.).

39 Aldrich v. Wright, 53 N. H. 398.

of destroying the plaintiff's poultry.40 In all such cases the defendant must show that his property was in imminent danger and that the destruction of plaintiff's chattels was reasonably necessary to protect his own. It is held that one is not justified in killing trespassing animals, where the loss by their destruction is disproportionately great as compared with the harm they are doing. And one may not kill his neighbor's poultry merely because they run in his lot or garden. It is, also, a universal rule that mere damage to crops by trespassing animals will not justify their destruction. The one suffering loss must resort to an action for damages or to the remedy of distress.

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32. Defense of real property.-One may protect his lawful possession of land by ejecting a trespasser. He may use force, if there is good reason for doing so, and may use such force as may be appropriate for accomplishing his purpose. It is said in an old case: "There is a force in law, as in every trespass quare clausum fregit (because he broke the close), as if one enters into my ground; in that case the owner must request him to depart before he can lay hands on him to turn him out; for every impositio manuum (laying on of hands) is an assault and battery, which cannot be justified upon the account of breaking the close, without a

40 Leonard v. Wilkins, 9 Johns. 233 (N. Y.); Throne v. Mead, 122 Mich. 273, 80 N. W. 1080, LEADING ILLUSTRATIVE CASES.

41 Livermore v. Batchelder, 141 Mass. 179, LEADING ILLUSTRATIve Cases. +2 Bowers v. Horen, 93 Mich. 420, LEADING ILLUSTRATIVE Cases.

43 Clark v. Keliher, 107 Mass. 406.

44 Commonwealth v. Clark, 2 Met. 23 (Mass.), LEADING ILLUSTRATIVE CASES.