CHAPTER VII. SELF-REDRESS AND SELF-PROTECTION. THERE are certain classes of injuries in respect of which the party injured is not necessarily bound to resort to the Courts for his remedy, but is entitled to take the law into his own hands and redress the wrong himself. Such is the right in case of trespasses to the person or property. It is lawful for one man to use force towards another in the defence of his own person, but this force must not transgress the reasonable limits of the occasion. The assailed person is not bound to stand on a passive defence, for it is a reasonable means of repelling an attack to attack in return. Nor does the law require that a man when labouring under a natural feeling of resentment consequent on gross provocation should very nicely measure the weight of his blows. A mere assault may justify a battery (a), but there must be some proportion between the aggression and the defence. Ordinary violence must be repelled by ordinary means, and a deadly weapon should not be used except against a deadly attack. 'A man cannot justify a maim for every assault; as if A. strike B., B. cannot justify the drawing his sword and cutting off his hand; but it must be such an assault whereby probably his life may be in danger" (b). 66 A husband has the same license in defending his wife as in defending himself, and so a wife in defending her husband. It is said also that a man may justify an assault in defence of his master because protection and allegiance are due to him. may justify a defence of his father or mother or children under age (c). But it is also said that a master cannot so justify in So he (c) 3 Salk. 46. As will be seen (below, p. 166), any one may use force in order Defence of the person. Defence of husband, parent or child, master wife or or servant. Defence of property. Actual possession. Recaption of chattels, defence of his servant, because the master might have an action. per quod servitium amisit (a). The distinction and the reason given seem hardly satisfactory. Force again may be used in defence of property real or personal, but it can only be so used in resisting something in the nature of a trespass, and in defence of actual possession or the right of possession. In Dean v. Hogg (b), the defendant had engaged a steam-boat for the conveyance of himself and a party, but the vessel remained under the management and control of the captain. The plaintiff having come on board was ordered to withdraw by the defendant, and on refusal was forcibly expelled. It was held that the defendant had not such possession of the vessel as to justify him upon his own authority in expelling an intruder. In Holmes v. Bagge (c), the plaintiff and defendant were both members of a cricket club; a match was going on and the plaintiff interfered with the game, and persisted in remaining on that part of the ground reserved to the players, of whom the defendant was one. The latter had him removed forcibly, and in an action of assault justified, among other pleas, on the ground that he was defending the possession of the two elevens engaged in the game. It was held, however, that such a plea could not be supported (d). Actual possession without proof of title is sufficient to justify the use of reasonable force in repelling a mere wrong-doer (e). He who is entitled to the immediate possession of a chattel may commit an assault to recover it from anyone who has it in his actual possession and wrongfully detains it, provided that such possession was wrongful in its inception, as, for example, if the party assaulted has taken the chattel by a trespass, or even as an innocent purchaser has acquired it by an act of conversion from someone without title (a). But it is apprehended that if a person has a chattel bailed to him, and unlawfully refuses to give it up on the termination of the bailment the owner must bring his action, and cannot use force to recover his property since the original possession was lawful (b), and the same rule would apply where the vendor of a chattel wrongfully refuses to make delivery to the purchaser. on land. He who is entitled to the immediate possession of realty may Re-entry make an entry, and may, according to the better opinion (c), justify in a civil action the use of so much force as is necessary to enable him to effect the entry and to expel the intruder therefrom, provided the degree of violence used does not exceed a common assault; but a forcible entry though justifiable in an action renders the party committing it liable to indictment. It is not lawful as a rule to use force in resisting a trespass to land or goods unless warning be first given. The trespasser should first be requested to desist, and if he refuses so to do, so much force only may be used as is necessary to overcome his resistance. If in resisting he commits an assault, the question then becomes one of defence of person as well as defence of property (d). In case, however, of a violent trespass, the trespasser may be Violent. trespass. resisted at once with the strong hand and without any parley. "It is lawful to oppose force to force, and if one breaks down the gate or comes into my close vi et armis, I need not request him to be gone, but may lay my hands upon him immediately, for it is but returning violence with violence. So if one comes forcibly Attempts to trespass. Limit in use of force in defending property. Duress. Protection of game. and takes away my goods, I may oppose him without any more ado, for there is no time to make a request" (a). It is not necessary in order to justify the use of force that the person against whom it is employed should have actually at the time committed a trespass. It is enough if he is endeavouring to do so, and that force is reasonably necessary to prevent him succeeding in such attempt (b). Under no circumstances is it lawful merely for the purpose of resisting a trespass to property to use violence likely to imperil life or limb, even though such violence be necessary for the purpose (c). Land or goods may be defended by assault and battery, but not by wounding. In Collins v. Renison (d) the plaintiff sued for an assault committed by throwing him off a ladder. It was pleaded that the plaintiff was trespassing, and had persisted in the trespass though requested to desist, and that thereupon the defendant "gently shook the ladder, which was a low ladder, and gently overturned it, and gently threw the plaintiff from it upon the ground, thereby doing as little damage as possible to the plaintiff." It was held that this plea was bad, since it disclosed a degree of violence which could not be justified for the purpose of preventing the trespass alleged (e). Force can only be used in direct assertion of a right of possession. It is not lawful to imprison a man for the purpose of compelling a restitution of property (f). Whether a landowner can justify shooting a dog which is trespassing upon his land in pursuit of game, depends upon the question whether the game pursued is in actual peril at the time. Where to an action of trespass for shooting the plaintiff's dog, it was pleaded in justification that the dog was chasing hares in the (a) Per cur. Green v. Goddard, 2 Salk. p. 641. See Weaver v. Bush, 8 T. R. 78. (b) Polkinhorn v. Wright, 8 Q. B. 197. See, however, Shingleton v. Smith, 2 Lutw. 1481. (c) 2 Inst. 316. And see Kinsella v. Hamilton, 26 L. R. Ir. 671. The statement in the Report on the Featherstone Riots (as to which, see below, p. 168), to the effect that "the taking of life can only be justified by the necessity of protecting persons and property against (e) See, too, Gregory v. Hill, 8.T. R. 299. (f) Harvey v. Mayne, Ir. Rep. 6 C. L. 417. defendant's close, and that the defendant's gamekeeper shot the dog for the preservation of the hares, the Court held the plea bad on demurrer for not alleging that it was necessary to kill the dog to save the hares (a). But where it is necessary to kill the dog to save the game it may lawfully be done, and the landowner is not to be deterred from that mode of protection by mere considerations of the relative value of the game protected and of the dog shot. "A man might shoot even a valuable greyhound which was chasing a hare if the hare was in peril (b).” As the only practical mode of protecting crops from the ravages of pigeons is to shoot them, a man may justify shooting his neighbour's tame pigeons if found damaging the crops (c). owner of property, absent or invaded is present at time of With regard to the nature of the means that may lawfully be Distinction employed for the protection of property, a distinction is to be according as drawn between cases in which the owner of the property is present at the time of the injury being inflicted on the invader, and cases in which the damage is suffered by the invader in his absence. The means which are lawful in the latter class of cases are wider invasion. than those which are lawful in the former. "Is it illegal," says Dallas, J., in Deane v. Clayton (d), "to place spikes or glass upon a wall, and if a party climbing over be thereby wounded or cut, can he bring an action? And yet if I were to see a trespasser coming down my area, or getting over the garden wall, I could not drive the spike into his hand or cut him with the glass. The doctrine depends on a broad distinction. Presence in its very nature is more or less protection; absence is abandonment and dereliction for the time; presence may supply means and limit what it supplies; but if during absence property can only be protected by such means as may be resorted to in the case of presence, all property lying open to inroad can have no protection, at least by any act of the party himself; for to say that he can. only be protected when absent by such means as he could use if present, is a contradiction in the nature of things." Therefore, (a) Vere v. Lord Cawdor, 11 East, 568. The earlier case of Wadhurst v. Damme, Cro. Jac. 45, where a plea that the dog was used to kill conies in the defendant's warren, and was at the time chasing conies there, was upheld, cannot now be regarded as law. (b) Per Blackburn, J., Taylor v. (c) Taylor v. Newman, 4 B. & S. 89. |