nine points of the law. The effect of the statute is this, that when a man is in possession he may use force to keep out a trespasser; but, if a trespasser has gained possession, the rightful owner cannot use force to put him out, but must appeal to the law for assistance. And the result of the cases appears to me to be this, that, inasmuch as the possession of the defendant was unlawful, he can recover no damages for the forcible entry of the plaintiff. He can recover no damages for the entry, because the possession was not legally his, and he can recover none for the force used in the entry, because, though the statute of Richard II creates a crime, it gives no civil remedy. But, in respect of independent wrongful acts, which are done in the course of or after the forcible entry, a right of action does arise, because the person doing them cannot allege that the acts were lawful, unless justified by a lawful entry; and he cannot plead that he has a lawful possession. This, as it appears to me, is the result of the cases."59 Accordingly, in this case, it was held that the plaintiff could not recover for the eviction, but could recover for the damage done to his furniture during the course of the forcible entry. 59 Beddall v. Maitland, L. R. 17 Ch. D. 174 (Eng.), LEADING ILLUSTRATIVE CASES. CHAPTER VI. OR PUBLIC EXCUSABLE TRESPASSES — NECESSITY 38. Trespass to the person justified by necessity or public policy.-"The right of personal liberty is subject to some exceptions necessary to the common welfare of society. At common law a private citizen, without warrant, may lawfully seize and detain another in certain cases. It is justifiable to hold a man to restrain him from mischief. It is lawful to interfere in an affray which endangers the lives of the combatants. Under the right of selfdefense, it is lawful to seize and restrain any person incapable of controlling his actions, whose being at large endangers the safety of others. But this is justifiable only when the urgency of the case demands immediate intervention. The right to exercise this summary remedy has its foundation in a reasonable necessity. A dangerous maniac may be restrained temporarily until he can be safely released, or can be arrested upon legal process, or committed to the asylum under legal authority. One who in a spirit of charity tries to assist a drunken man is not liable for a battery, even though the drunken man is injured in the course of such assistance. 60 Keleher v. Putnam, 60 N. H. 30. 61 39. Trespass to property justified by necessity or public policy. The act that otherwise would be a trespass upon realty will be excused if it be shown that it was done on grounds of necessity or of public policy. In case of invasion by a public enemy, it is lawful for men to go upon the land of another for the purpose of resisting the enemy and to make trenches and bulwarks for the defense of the country. The destruction of personal property as a war measure gives the owner no remedy; 2 nor the tearing down of a stack of dangerous chimneys of a house that has been consumed by fire.63 The blowing up and destruction of houses is justifiable when done to prevent the spread of a conflagration.** Entry on another's land may be justified on the ground of necessity for the preservation of life, as where one enters to prevent the spread of fire; 65 or for the preservation of the property of a third person which is in jeopardy of being lost or destroyed by water, fire or any like danger, as the rescue of a boat cast up by a storm.66 Where a public highway becomes impassable, as by a sudden flood, or falling of a tree, persons may pass over the adjoining land without incurring liability for trespass. But where the right of way is private and conferred by special license, one is not justified 61 Y. B., 9 Edw. IV 23, pl. 41 (Eng.). 67 62 United States v. Pacific Railroad, 120 U. S. 227, LEADING ILLUSTRATIVE CASES. 63 Dewey v. White, M. & M. 56 (Eng.). 64 Surocco v. Geary, 3 Cal. 69. 65 American Print Works v. Lawrence, 23 N. J. L. 590. 66 Proctor v. Adams, 113 Mass. 376, LEADING ILLUSTRATIVE CASES. 67 Absor v. French, 2 Show. K. B. 28 (Eng.); Campbell v. Race, 7 Cush. 408 (Mass.), LEADING ILLUSTRATIVE CASES. in going on neighboring land." In the case of emergency on shipboard, arising from a storm, it is lawful to throw the goods overboard for the purpose of lightening the vessel, if such a course seems necessary to save the ship." In this event the maritime law provides that the owners of so much of the cargo as is saved by the jettison shall contribute by way of general average to make up the loss.70 72 69 40. Discipline as an excuse for trespass.—A parent, or one authorized by a parent to take charge or control of a minor child, is not liable for use of a reasonable force to secure the child's obedience.71 On grounds of supposed expediency, a child is not allowed in some courts to sue his parent for an excessive punishment, but other courts hold otherwise.73 "The law clothes the teacher, as it does the parent, in whose place he stands, with power to enforce discipline by the imposition of reasonable corporal punishment. He is not required to be infallible in his judgment. He is the judge to determine when and to what extent correction is necessary; and like all others clothed with a discretion, he cannot be made personally responsible for error in judgment when he has acted in good faith and without malice."74 But if the punishment is cruel and excessive and beyond that required by 68 Taylor v. Whitehead, 2 Douglas 745 (Eng.). 69 Mouse's Case, 12 Coke 63 (Eng.). 70 Hicks v. Palington, Moo. K. B. 297 (Eng.). 71 Rowe v. Rugg, 117 Iowa 606, 91 N. W. 903, LEADING ILLUSTRATIVE CASES. 72 McKelvey v. McKelvey, 111 Tenn. 388, 77 S. W. 664. 73 Clasen v. Pruhs, 69 Neb. 278, LEADING ILLUSTRATIVE CASES. 74 Heritage v. Dodge, 64 N. H. 297, 9 Atl. 722. the circumstances, the schoolmaster is liable for an assault and battery.75 In the matter of discipline of seamen, it is said: "By the common law the master has authority over all the mariners on board the ship, and it is their duty to obey his commands in all lawful matters relative to the navigation of the ship and the preservation of good order; and, in case of disobedience or disorderly conduct, he may lawfully correct them in a reasonable manner, his authority, in this respect, being analogous to that of a parent over a child, or a master over his apprentice, or scholar. Such authority is absolutely necessary to the safety of the ship, and of the lives of the persons on board; but it behooves the master to be very careful in the exercise of it, and not to make his parental power a pretext for cruelty and oppression."" 41. Abatement of nuisances.-The removal or abatement of a nuisance by a private person injured by its existence has been recognized from the early centuries of the common law. Early instances, confirmed by later decisions, where abatement by the party injured has been justified, are: tearing up stakes, which caused the existence of a pond which threatened to flood the abator's premises, although the tearing up of the stakes menaced the fall of a house; or refilling a ditch which unlawfully diverted water from a mill;" or demolishing a gate placed 75 Lander v. Seaver, 32 Vt. 114. 76 Abbott, Shipping, p. 125, quoted in Brown v. Howard, 14 Johns. 119 (N. Y.); Michaelson v. Denison, 17 Fed. Cas. No. 9, 523, LEADING ILLUSTRATIVE CASES. 77 Y. B., 9 Edw. IV 34, pl. 10 (Eng.). |