constitute such necessity as would excuse what would be otherwise wrongdoing. "If," said Lord Blackburn, 201 "a house in which a person ill of an infectious order lay bedridden took fire, and it was necessary to choose whether the sick person was to be left to perish in the flames, or to be carried out through the crowd, at the risk, or even at the certainty, of infecting some of them, no one could suppose that those who carried out the sick person could be punishable; and probably a much less degree of necessity might form an excuse." Similarly, in cases of negligence, one who imperils his personal safety in the discharge of a duty like saving human life is not prevented, because of such conduct as constituting contributory negligence, from recovering damages done to him.202 On the same principle, where a highway becomes obstructed and impassable from temporary causes, as a snowdrift, a traveler has a right to go, extra viam, upon adjoining lands, without being guilty of trespass.203 The authority of the master of a ship to use force for the preservation of discipline has also necessity for a basis. 204

v. McCulloch, 10 Mass. 70; Campbell v. Race, 7 Cush. (Mass.) 408; Mouse's Case, 12 Coke, 63; Respublica v. Sparhawk, 1 Dall. 357; Taylor v. Plymouth, 8 Metc. (Mass.) 462. As to statutory changes, see Fisher v. Boston, 104 Mass. 87.

201 Metropolitan Asylum Dist. v. Hill, L. R. 6 App. Cas. 193–205.

202 Eckert v. Long Island R. Co., 43 N. Y. 502; Pennsylvania Co. v. Roney, 89 Ind. 453; Clark v. Famous Shoe & Clothing Co., 16 Mo. App. 463.

203 Donahoe v. Wabash, St. L. & P. Ry. Co., 83 Mo. 560; Bullard v. Harrison, 4 Maule & S. 387-393; Campbell v. Race, 7 Cush. (Mass.) 408; Burd. Lead. Cas. 136. As to ways of necessity, see Bish. Noncont. Law, 872; Vossen v. Dautel, 116 Mo. 379, 22 S. W. 734; Camp v. Whitman (N. J. Ch.) 26 Atl. 917; Lankins v. Terwilliger, 22 Or. 97, 29 Pac. 268; post, p. 678, “Justification of Trespass."

204 Pol. Torts, 108; Bangs v. Little, 1 Ware, 506, Fed. Cas. No. 839; U. S. v. Alden, 1 Spr. 95, Fed. Cas. No. 14,427; Cushman v. Ryan, 1 Story, 91, Fed. Cas. No. 3,515; Turner's Case, 1 Ware, 83, Fed. Cas. No. 14.248: Wilson v. The Mary, Gilp. 31, Fed. Cas. No. 17,823; Michaelson v. Denison, 3 Day (Conn.) 294; Brown v. Howard, 14 Johns. (N. Y.) 119; Sampson v. Smith, 15 Mass. 365; Flemming v. Ball, 1 Bay (S. C.) 3; Mathews v. Terry, 10 Conn. 455; State v. Board of Education, 63 Wis. 234, 23 N. W. 102; Allen v. Hallet, 1 Abb. Adm. 573; Payne v. Allen, 1 Spr. 304, Fed. Cas. No. 10,855; Schelter v. York, Crabbe, 449, Fed. Cas. No. 12,446; Jay v. Almy, 1 Woodb. & M. 262, Fed. Cas. No. 7,236; Butler v. McLellan, 1 Ware, 219, Fed. Cas. No. 2,242; Buddington v. Smith, 13 Conn. 334.

SAME RIGHT OF PRIVATE DEFENSE.

51. The law recognizes the right to repel unlawful or dangerous force by force, in the defense of person and property or possession, whenever there is a real or an apparent necessity for the defense, honestly believed to be real; but the acts of defense must be confined to defense, and, in themselves, reasonable, careful, and not excessive.

No action lies for damages done in consequence of the exercise of the instinct common to all animate things, to protect themselves and their own, within the limits of such private defense as is determined by law. If a person, in lawful self-defense, fires a pistol at an assailant, and, missing him, wounds an innocent bystander, he is not liable for the injury, if guilty of no negligence.205

In Laidlow v. Sage,206 the defendant placed the plaintiff between himself and impending danger from a bomb, and the plaintiff was injured. The defendant's liability, it was held, depended on whether the act of using the plaintiff as a shield was intentional, and did not depend entirely on whether such act was voluntary, since a voluntary act may be instinctive, and therefore not intentional. In the same way, the owner has the right to do anything that is apparently and reasonably necessary to be done for the protection of his property.207 Thus, the owner of a stack of hay may burn grass around it, for the protection of his property, without liability for damages consequent thereon.298 Indeed, it may be a duty to fight fire with

205 Morris v. Platt, 32 Conn. 75; Paxton v. Boyer, 67 Ill. 132; Scott v. Shepherd, 2 W. Bl. 892; post, 435, "Assault and Battery." As to damage caused in trying to avoid missile, see Vallo v. United States Exp. Co., 147 Pa. St. 404, 23 Atl. 594.

206 Laidlaw v. Sage, 80 Hun, 550, 30 N. Y. Supp. 496; 8 Harv. Law Rev. 225, and 7 Harv. Law Rev. 315.

207 Walker v. Wetherbee, 65 N. II. 656, 23 Atl. 621, Doe, J., collecting cases at page 661, 65 N. H., and page 622, 23 Atl.

208 Brown v. Brooks (Wis.) 55 N. W. 395, 21 Lawy, Rep. Ann. 255. Et vide note on "Fires," Id. No liability for setting fire to land of other, if due diligence is used in setting out a fire. Hanlon v. Ingram, 3 Iowa, 80. See cases

fire.209 So, where the law provided that no fur-bearing animals should be killed within certain periods, and within such period a person killed a mink which was about to destroy his geese, it was held that such law did not interfere with the constitutional right to defend property, and could not prevent the killing of wild animals, where there was imminent danger that they would destroy private property.210

If there be actual necessity for exercise of right of defense, there is full justification for its exercise to the extremity the circumstances may demand. Thus, where a dog was killed in the act of . taking fish which had been hung up to dry, it was said: “And his property, whether fish or meat, in his cellar, in his kitchen, or in his yard, it was lawful for him to preserve against any man's dog; and, if he could not otherwise protect it, he might kill the dog, when caught on his premises, in the act of destruction. Whether he could not preserve his property and the customary use of it without destroying the animal committing the depredation, when found in the act, ought to have been submitted to the jury by the court, as a question within its province to decide." 211 The mere fact that an animal is committing a trespass does not justify killing or wantonly abusing it.212 But, to constitute the defense, the belief or apprehension of danger must be founded on sufficient circumstances to authorize the

pro and con on page 82. As to absolute liability under statute, see Conn v. May, 36 Iowa, 241.

209 McKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103.

210 Aldrich v Wright, 53 N. H. 398; Taylor v. Newman, 4 Doct. & Stud. 89. And see Parrott v. Hartsfield, Id. 110; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Boecher v. Lutz, 13 Daly (N. Y.) 38; Dunning v. Bird, 24 Ill. App. 270; Lipe v. Blackwelder, 25 Ill. App. 119.

211 King v. Kline, 6 Pa. St. 318.

212 Johnson v. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 5 Ind. 216; Hobson v. Perry, 1 Hill (S. C.) 277; Clark v. Keliher, 107 Mass. 406; Livermore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Sosat v. State, 2 Ind. App. 586, 28 N. E. 1017. Where one person kills the dog of another, which has been scared, and runs upon his premises, but has dene no injury, or was attempting to do none, but simply because the party killing it suspects that the dog had previously interrupted his hens' nests, such an act is a trespass, for which the perpetrator is liable. Brent v. Kimball, 60 Ill. 211-215. And see Hubbard v. Preston, 90 Mich. 221, 51 N. W. 209; Tenhopen v. Walker, 96 Mich. 236, 55 N. W. 657.

opinion that the peril existed, and may at the time result in harm, 213 and the standard of apprehension is that of men of ordinary firmness and reflection.214

The justification of damages consequent upon the exercise of the right of self-defense depends upon the consideration whether the right was exercised in a reasonable manner, in view of all the circumstances of the case.215 It is impossible to establish an ironclad rule of law that will meet the exigencies of any case that may possibly arise. Self-defense does not include the active assertion of a disputed right against an attempt to obstruct its exercise.216 Excessive defense of the person may become an assault and battery.217 So, in defense of property, as in the case of the defense of domestic animals from the attacks of other animals, the relative value of the animals may be proper for the jury to consider, in arriving at a conclusion whether the defense was a reasonable one under the circumstances. 218 And where a dog has been once driven away from a henhouse, and was again running towards it, the plaintiff was not justified in killing the dog. 219 So, negligently starting or keeping a

213 Rippy v. State, 2 Head (Tenn.) 217; State v. Bryson, 2 Winst. Law (N. C.) 86.

214 Woolf v. Chalker, 31 Conn. 121; Credit v. Brown, 10 Johns. (N. Y.) 365; Putnam v. Payne, 13 Johns. (N. Y.) 311; Maxwell v. Palmerton, 21 Wend. (N. Y.) 407. As to statutory alteration of the right, see Spaight v. McGovern, 16 R. I. 658, 19 Atl. 246.

215 Where cattle are trespassing upon the premises of a party, he, and also the members of his family, have the undoubted right to use all reasonable means and sufficient force to remove them; and there is nothing illegal in driving such cattle from the premises with dogs, if no unnecessary injury is done to the stock. Spray v. Ammerman, 66 III. 309.

216 Pol. Torts, c. 4, subd. 12; Id. (Webb's Ed.), and cases cited in note p. 203.

217 Post, 442, "Assault and Battery."

218 Cooley, Torts, 346; Anderson v. Smith, 7 Ill. App. 354; Simmonds v. Holmes, 61 Conn. 1, 23 Atl. 702; Parrott v. Hartsfield, 4 Dev. & B. (N. C.) 110; Hinckley v. Emerson, 4 Cow. (N. Y.) 351; Boecher v. Lutz, 13 Daly (N. Y.) 28; Dunning v. Bird, 24 Ill. App. 270; Lipe v. Blackwelder, 25 Ill. App. 123.

219 Livermore v. Batchelder, 141 Mass. 179, 5 N. E. 275; Burd, Lead. Cas. 141. Cf. Marshall v. Blackshire, 44 Iowa, 475; Hinckley v. Emerson, 4 Cow. 351. One is not justified in killing a valuable dog, without notice to the owner, merely because the dog barks around his house at night, or chances

back fire to defend against a fire already existing will attach liability.220

VARIATIONS BASED ON STATUS.

52. Under this head will be considered the liability of

(a) Natural persons, including

(1) Insane persons;

(2) Infants;

(3) Drunkards;

(4) Convicts;

(5) Alien enemies.

(b) Artificial persons, including

(1) Private corporations;

(2) Municipal and quasi municipal corporations;
(3) Corporations not municipal engaged in public
works.

SAME-INSANE PERSONS.

53. Generally, an insane person is liable for his torts, to the extent of compensation for the actual loss sustained by the injured party; but when the wrong involves personal capacity, and such capacity is impossible, because of mental derangement, there can be no recovery.222

on one occasion to leave some tracks on a freshly-painted porch, or to have been detected in the henhouse, but not, however, doing any mischief. Bowers v. Horen, 93 Mich. 420, 53 N. W. 535; Cooley, Torts, § 347, note 4, collecting the various authorities and statutes as to injury by dogs. Bish. Noncont. Law contains a chapter (53) "Specially of Dogs." In the absence of the statute, killing a trespassing animal has often been held unjustifiable. Johnson v. Patterson, 14 Conn. 1; Ford v. Taggart, 4 Tex. 492; Tyner v. Cory, 5 Ind. 216; Hobson v. Perry, 1 Hill (S. C.) 277.

220 Back fire negligently set attaches liability for such property as would not have been destroyed by original fire. McKenna v. Baessler, 86 Iowa, 197, 53 N. W. 103.

222 As to nature of various kinds of mental derangement, see Hiett v. Shull, 36 W. Va. 563, 15 S. E. 146; Snyder v. Snyder, 142 Ill. CO, 31 N. E. 303; Brower v. Fisher, 4 Johns. Ch. (N. Y.) 441.