ing down houses to stop a fire (p), and casting goods overboard, or otherwise sacrificing property, to save a ship or the lives of those on board, are the regular examples. The maritime law of general average assumes, as its very foun dation, that the destruction of property under such condi tions of danger is justifiable (q). It is said also that "in time of war one shall justify entry on another's land to make a bulwark in defence of the king and the kingdom." In these cases the apparent wrong" sounds for the public good" (r). There are also circumstances in which a man's property or person may have to be dealt with promptly for his own obvious good, but his consent, or the consent of any one having lawful authority over him, cannot be obtained in time. Here it is evidently justifiable to do, in a proper and reasonable manner, what needs to be done. It has never been supposed to be even technically a trespass if I throw water on my neighbour's goods to save them from fire, or seeing his house on fire, enter on his land to help in putting it out (s). Nor is it an assault for the first passerby to pick up a man rendered insensible by an accident, or for a competent surgeon, if he perceives that an operation ought forthwith to be performed to save the man's life, to perform it without waiting for him to recover consciousness and give his consent. These works of charity and necessity must be lawful as well as right. Our books have only slight and scattered hints on the subject, probably because no question has ever been made (t).

(p) Dyer, 36 b.

(q) Mouse's case, 12 Co. Rep. 63, is only just worth citing as an illustration that no action lies.

(r) Kingsmill J. 21 Hen. VII. 27, pl. 5; cp. Dyer, ubi supra. In 8 Ed. IV. 23, pl. 41, it is thought doubtful whether the justification should be by common law or by special custom.

(8) Good will without real necessity would not do; there must be danger of total loss, and, it is said, without remedy for the owner against any person, per

Rede C. J. 21 Hen. VII. 28, pl. 5; but if this be law, it must be limited to remedies against a trespasser, for it cannot be a trespass or a lawful act to save a man's goods according as they are or are not insured. Cp. Y. B. 12 Hen. VIII. 2, where there is some curious discussion on the theory of trespass generally.

(t) Cf. the Indian Penal Code, s. 92, and the powers given to the London Fire Brigade by 28 & 29 Vict. c. 90, s. 12, which seem rather to assume a pre-existing right at common law.

12.- Private defence.

Self-defence. Self-defence (or rather private defence (u), for defence of one's self is not the only case) is another ground of immunity well known to the law. To repel force by force is the common instinct of every creature that has means of defence. And when the original force is unlawful, this natural right or power of man is allowed, nay approved, by the law. Sudden and strong resistance to unrighteous attack is not merely a thing to be tolerated; in many cases it is a moral duty. Therefore it would be a grave mistake to regard self-defence as a necessary evil suffered by the law because of the hardness of men's hearts. The right is a just and perfect one. It extends not only to the defence of a man's own person, but to the defence of his property or possession. And what may be lawfully done for oneself in this regard may likewise be done for a wife or husband, a parent or child, a master or servant (x). At the same time no right is to be

(u) This is a term adopted in the Indian Penal Code.

(x) Blackstone iii. 3; and see the opinion of all the Justices of K. B., 21 Hen. VII. 39, pl. 50. There has been some doubt whether a master could justify on the ground of the defence of

his servant. But the practice and the better opinion have always been other. wise. Before the Conquest it was understood that a lord might fight in defence of his men as well as they in his. Ll. Alf. c. 42, § 5.

Self-defence. Agreeing with the text, vide Murray v. Boyne, 42 Mo. 472; Commonwealth v. Elleger, 1 Brews. 352; Morris v. Platt, 32 Conn. 75; 47 Am. Dec. 265; Scribner v. Beach, 4 Denio, 448; Elliott v. Brown, 2 Wend. 497; 20 Am. Dec. 644; Dole v. Erskine, 35 N. H. 503; Philbrick v. Foster, 4 Ind. 442; Hazel v. Clark, 3 Harr. (Del.) 22; Fortune v. Jones, 128 Ill. 518; 21 N. E. Rep. 523; Russell v. Barrow, 7 Port. 106; Stoneman v. Commonwealth, 86 Va. 523; Barnards v. State, 88 Tenn. 183; Howland v. Day, 56 Vt. 318; Close v. Cooper, 34 Ohio St. 98; Gyre v. Culver, 4 Barb. 593; Davis v. Whitridge, 2 Strobh. 232; Thompson v. Berry, 1 Cranch C. Ct. 45; McIlvoy v. Cockran, 2 A. K. Marsh. 270; Robinson v. Hawkins, 4 T. B. Mon. 136; Baldwin v. Hayden, 6 Conn. 453; Hill v. Rogers, 2 Ia. 67; McCarty v. Fremont, 23 Cal. 196; Pitford v. Armstrong, Wright, 94; Woodman v. Howell, 45 Ill. 367; Newkirk v. Sabler, 9 Barb. 652; Jones v. Gale, 22 Mo. App. 637; Bliss v. Johnson, 73 N. Y. 529; Simmonds v. Holmes, 61 Conn. 1. See post, p. 255.

abused or made the cloak of wrong, and this right is one easily abused. The law sets bounds to it by the rule that the force employed must not be out of proportion to the apparent urgency of the occasion. We say apparent, for a man cannot be held to form a precise judgment under such conditions. The person acting on the defensive is entitled to use as much force as he reasonably believes to be necessary. Thus it is not justifiable to use a deadly weapon to repel a push or a blow with the hand. It is even said that a man attacked with a deadly weapon must retreat as far as he safely can before he is justified in defending himself by like means. But this probably applies (so far as it is the law) only to criminal liability (y). On the other hand if a man presents a pistol at my head and threatens to shoot me, peradventure the pistol is not loaded or is not in working order, but I shall do no wrong before the law by acting on the supposition that it is really loaded and capable of shooting.

Killing of animals in defence of property. Cases have arisen on the killing of animals in defence of one's property. Here, as elsewhere, the test is whether the party's act was such as he might reasonably, in the circumstances,

(y) See Stephen, Digest of Criminal Law, art. 200. Most of the authority on

this subject is in the early treatises on Pleas of the Crown.

Killing of animals in defence of property. It may be stated as a general rule that the killing of a trespassing animal is not justifiable. Johnson v. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 5 Ind. 216; Holson v. Perry, 1 Hill (S. C.), 277; Clark v. Keliher, 107 Mass. 406; Livermore v. Blatchelder, 141 Mass. 179; Sosat v. State, 2 Ind. App. 586; 28 N. E. Rep. 1017.

But where the owner of property has reasonable cause to suppose that his property is about to be substantially or irreparably injured by an animal and that the killing of the animal is the only available method of preventing such injury, he may slay the animal. Parrott v. Hartsfield, 4 Dev. & B. 110; Hinckley v. Emerson, 4 Cow. 351; Boescher v. Lutz, 13 Daly, 28; Dunning v. Bird, 24 Ill. App. 270; Lipe v. Blackwelder, 25 Ill. App. 123.

think necessary for the prevention of harm which he was not bound to suffer. Not very long ago the subject was elaborately discussed in New Hampshire, and all or nearly all the authorities, English and American, reviewed (2). Some of these, such as Deane v. Clayton (a), turn less on what amount of force is reasonable in itself than on the question whether a man is bound, as against the owners of animals which come on his land otherwise than as of right, to abstain from making the land dangerous for them to come on. And in this point of view it is immaterial whether a man keeps up a certain state of things on his own land for the purpose of defending his property or for any other purpose which is not actually unlawful.

As to injuries received by an innocent third person from an act done in self-defence, they must be dealt with on the same principle as accidental harm proceeding from any other act lawful in itself. It has to be considered, however, that a man repelling imminent danger cannot be expected to use as much care as he would if he had time to act deliberately.

Assertion of rights distinguished from self-defence. Self-defence does not include the active assertion of a dis

(z) Aldrich v. Wright (1873), 53 N. H. 398, 16 Am. Rep. 339. The decision was that the penalty of a statute ordaining a close time for minks did not apply to a man who shot on his own land, in the close season, minks which he reasonably thought were in pursuit of his geese. Compare Taylor app. Newman resp. (1863), 4 B. & S. 89, 32 L. J. M. C. 186.

(a) 7 Taunt. 489, the case of dogspears, where the Court was equally divided (1817); Jordin v. Crump (1841), 8 M. & W. 782, where the Court took the view of Gibbs C. J. in the last case, on the ground that setting dog-spears was not in itself illegal. Notice, however, was pleaded.

Assertion of rights distinguished from self-defence. In an attempt by the owner, to recapture property from the possession of a trespasser, the law does not justify the owner in a resort to the use of a deadly weapon in such manner as to be reasonably calculated to endanger human life, although, because of the superior physical power of the trespasser, such object cannot be otherwise accomplished, but leaves him to his legal remedy. Kimple v. State, 32 Ind. 220; McCarty v.

puted right against an attempt to obstruct its exercise. I am not justified in shooting, or offering to shoot, one who obstructs my right of way, though I may not be able to pass him otherwise, and though I am justified in resisting, within due bounds, any active force used on his part. It seems the better opinion that the use of force which inflicts or may inflict grievous bodily harm or death of what in short may be called extreme force is justifiable only for the purpose of strict self-defence" (b). I may be justified in pushing past the obstructor, but this is not an act of self-defence at all; it is the pure and simple exercise of my right itself (c).

-

Many interesting questions, in part not yet settled, may be raised in this connexion, but their interest belongs for most practical intents to public and not to private law. It must not be assumed, of course, that whatever is a sufficient justification or excuse in a criminal prosecution will equally suffice in a civil action.

Injury to third persons from acts of self-defence. Some of the dicta in the well-known case of Scott v. Shepherd (d) go the length of suggesting that a man acting on

(b) Dicey, Law of the Constitution, 3rd ed. 1889, appx. 410, which see for fuller discussion.

(c) Dicey, op. cit. 411.
(d) 2 W. Bl. 892.

Fremont, 23 Cal. 196; Kiff v. Youmans, 86 N. Y. 324; Woodman v. Howell, 45 Ill. 267; State v. Burke, 82 N. C. 551; Brothers v. Morris, 49 Vt. 460; Abt v. Burghein, 80 Ill. 92; Bliss v. Johnson, 73 N. Y. 529; Johnson v. Perry, 56 Vt. 703; 48 Am. Rep. 826; Higgins v. Minaghan, 76 Wis. 298; 47 N. W. Rep. 941; McIntire v. Plaisted, 57 N. H. 606; Anderson v. Smith, 7 Ill. App. 354; Marshall v. Blackshire, 44 Ia. 475; Parsons v. Brown, 15 Barb. 590. See the cases cited on the preceding pages of this subject.

Injuries to third persons from acts of self-defence. In the case of Morris v. Platt (32 Conn. 75, supra, p. 164) it was held, that where a person in lawful self-defence and without negligence, fires a pistol at an assailant, and missing him wounds an innocent bystander, he is not liable for the injury.