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. animals in Cases have arisen on the killing of animals in defence of Killing of one's property. Here, as elsewhere, the test is whether defence of the party's act was such as he might reasonably, in the property. circumstances, 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 (). Some of these, such as Deane v. Clayton (a), master could justify on the ground of the defence of his servant. But the practice and the better opinion have always been otherwise. 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. (y) See Stephen, Digest of Cri minal Law, art. 200. Most of the (z) Aldrich v. Wright (1873) 53 (a) See note (a) next page. Assertion of rights distinguished from selfdefence. 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. Self-defence does not include the active assertion of a disputed 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 of a statute ordaining a close time (a) 7 Taunt. 489, the case of dog-spears, 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. 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 per " acts of Some of the dicta in the well-known case of Scott v. Shepherd (d) go the length of suggesting that a man acting sons from on the spur of the moment under "compulsive necessity self(the expression of De Grey C. J.) is excusable as not being defence. a voluntary agent, and is therefore not bound to take any care at all. But this appears very doubtful. In that case it is hard to believe that Willis or Ryal, if he had been worth suing and had been sued, could have successfully made such a defence. They "had a right to protect themselves by removing the squib, but should have taken care "—at any rate such care as was practicable under the circumstances-"to do it in such a manner as not to endamage others" (e). The Roman lawyers held that a man who throws a stone in self-defence is not excused if the stone by misadventure strikes a person other than the assailant (f). Perhaps this is a harsh opinion, but it seems better, if the choice must be made, than holding that one may with impunity throw a lighted squib across a market (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. P. (e) Blackstone J. in his dissenting judgment. (f) D. 9. 2, ad 1. Aquil. 45, § 4; supra, pp. 123, 124. M house full of people in order to save a stall of gingerbread. At all events a man cannot justify doing for the protection of his own property a deliberate act whose evident tendency is to cause, and which does cause, damage to the property of an innocent neighbour. Thus if flood water has come on my land by no fault of my own, this does not entitle me to let it off by means which in the natural order of things cause it to flood an adjoining owner's land (g). Harm suffered by a wrongdoer: doubtful 13.--Plaintiff a wrong-doer. Language is to be met with in some books to the effect that a man cannot sue for any injury suffered by him at a time when he is himself a wrong-doer. But there is no whether such general rule of law. If there were, one consequence any special disability. would be that an occupier of land (or even a fellow trespasser) might beat or wound a trespasser without being liable to an action, whereas the right of using force to repel trespass to land is strictly limited; or if a man is riding or driving at an incautiously fast pace, anybody might throw stones at him with impunity. In Bird v. Holbrook (h) a trespasser who was wounded by a spring-gun set without notice was held entitled to maintain his action. And generally, "a trespasser is liable to an action for the injury which he does; but he does not forfeit his right of action for an injury sustained" (i). It does not appear (g) Whalley v. Lanc. and Yorkshire R. Co. (1884) 13 Q. B. Div. 131, 53 L. J. Q. B. 285, distinguishing the case of acts lawful in themselves which are done by way of precaution against an impending common danger. (h) 4 Bing. 628. Cp. p. 151 above. The cause of action arose, and the trial took place, before the passing of the Act which made the setting of spring-guns unlawful. (i) Barnes v. Ward (1850) 9 C. B. 392, 19 L. J. C. P. 195. on the whole that a plaintiff is disabled from recovering by reason of being himself a wrong-doer, unless some unlawful act or conduct on his own part is connected with the harm suffered by him as part of the same transaction: and even then it is difficult to find a case where it is necessary to assume any special rule of this kind. It would be no answer to an action for killing a dog to show that the owner was liable to a penalty for not having taken out a dog licence in due time. If, again, A. receives a letter containing defamatory statements concerning B., and reads the letter aloud in the presence of several persons, he may be doing wrong to B. But this will not justify or excuse B. if he seizes and tears up the letter. A. is unlawfully possessed of explosives which he is carrying in his pocket. B., walking or running in a hurried and careless manner, jostles A. and so causes an explosion. Certainly A. cannot recover against B. for any hurt he takes by this, or can at most recover nominal damages, as if he had received a harmless push. But would it make any difference if A.'s possession were lawful? Suppose there were no statutory regulation at all: still a man going about with sensitive explosives in his pocket would be exposing himself to an unusual risk obvious to him and not obvious to other people, and on the principles already discussed would have no cause of action. And on the other hand it seems a strong thing to say that if another person does know of the special danger, he does not become bound to take answerable care, even as regards one who has brought himself into a position of danger by a wrongful act. Cases of this kind have sometimes been thought to belong to the head of contributory negligence. But this, it is submitted, is an unwarrantable extension of the term, founded on a misapprehension of the true meaning and reasons of the |