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tion laws, which have been, without exception, so far as I know, sustained by the Courts, notwithstanding the victim is always made more or less sick, and may even suffer death, as a consequence. I do not think the plaintiff has made a prima facie showing entitling her to injunctive relief, and I think the precedent a dangerous one and unnecessary to the protection of any right of the plaintiff under the law, and, therefore, the order of the Circuit Judge should be reversed.

Topic 5. Sundry Dangers

780. GILBERT v. STONE. (1648. Aleyn, 35.) In trespass for breaking of a house and close, the defendant pleaded, that 12 homines ignoti modo guerrino armati tantum minabantur ei quod de vitae suae amissione dubitabat, and after requirebant & compulsabant the defendant to goe with them to the house, quodque ob timorem minarum & per mandatum & compulsionem dictorum 12 hominum he did enter the said house, and returned immediately through the said close, which is the same trespass, &c. And upon demurrer, without argument, it was adjudged no plea; for one cannot justifie a trespass upon another for fear, and the defendant hath remedy against those that compelled him: also that the manner of the pleading was naught, because he did not shew that the way to the house was through the close.

781. CHARLES VINER. A General Abridgment of Law and Equity. "Trespass." (I. a) (K. a) (2d ed., 1793, vol. XX, pp. 514, 515.) In trespass quare clausum fregit called S. in the parish of D., if defendant justifies because his sheep were stolen by persons unknown and that the plaintiff afterwards chased the said sheep with his own sheep in the same parish, and that he [defendant] suspected that his sheep were chased into the said close of the plaintiff, in which, &c. and upon this he went into the said close where, &c. to search for his sheep, and not finding them there, he went out of the close as soon as he could, doing as little damage in going and returning as he could, — This is not a good justification, because he did not enter to search for the felon, which was for the Commonwealth, but for his private interest, to inquire for his goods: for by the same reason he may come into the lands of any other man, with a pretence to search for his goods. And here he does not show any cause of suspicion that the sheep were in this close. Mich. 1649, between Toplady and Scaley. Adjudged upon demurrer per totam Curiam praeter Justice JERMYN, who was e contra. Intratur, Mich. 24 Car. Rot. 596. . .

782. SCOTT v. SHEPHERD. (1773. 2 W. Bl. 892.) [The facts are stated ante, in No. 10, Vol. I.] BLACKSTONE, J. . . . In strictness of law, Trespass would lie against Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the bounds of self-defence, and not used sufficient circumspection in removing the danger from themselves The throwing it across. the Market-house, instead of brushing it down, or throwing it out of the open sides in the street (if it was not meant to continue the sport as 't is called), was at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify a trespass against a third person. Much less a fear of danger to either his goods or his person: — nothing but inevitable necessity.

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783. BRUCH v. CARTER. (1867. 32 N. J. L. 554, 560.) WOODHULL, J. The seventh [exception] is, that the judge refused to charge, “that at a funeral at a church, as was the fact in this case, any person driving a team of horses to a carriage in the funeral procession, has a right, when the procession reaches the church, to tie his horses to any vacant post in the public highway, erected for that purpose by those who frequent the church, and, if in order to do this, it becomes necessary to remove a horse standing near by to the next post, he has a perfect right to remove such horse, provided he removes him in a skilful and proper manner, and properly and securely fastens him to the post to which he removes him. The answer to this must unquestionably be the same as that given by the Court below. The defendants neither had, nor could have, any such legal right as that claimed for them in this case, for the plain reason that the existence of such a right would be utterly inconsistent with, and destructive of, the inherent legal rights of the owner of the horse. . . . To hold that one man may lawfully, for his own pleasure, or convenience, make use of, or in any way interfere with, the property of another, without his permission, would be to introduce, into the law of property, a doctrine at once novel and dangerous.

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784. R. v. DUDLEY AND STEPHENS. (1884. L. R. 14 Q. B. D. 273; the two defendants, in a boat after a shipwreck, had killed a boy and eaten his flesh, to save their own lives.) Lord Coleridge, C. J. The prisoners put to death a weak and unc fending boy upon the chance of preserving their own lives by feeding upon his flesh and blood after he was killed, and with a certainty of depriving him of any possible chance of survival. The verdict finds in terms that "if the men had not fed upon the body of the boy, they would probably not have survived," and that "the boy, being in a much weaker condition, was likely to have died before them." . . .

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It is said that it follows, from various definitions of murder in books of authority which definitions imply, if they do not state, the doctrine that, in order to save your own life you may lawfully take away the life of another, when that other is neither attempting nor threatening yours, nor is guilty of any illegal act whatever towards you or any one else. But if these definitions be looked at, they will not be found to sustain the contention. . . . The doctrine contended for receives no support from the great authority of Lord Hale. It is plain that in his view the necessity which justifies homicide is that only which has always been, and is now, considered a justification. "In all these cases of homicide by necessity," says he, "as in pursuit of a felon, in killing him that assaults to rob, or comes to burn or break a house, or the like, which are in themselves no felony" (1 Hale, Pleas of the Crown, 491). Again, he says that the necessity which justifies homicide is of two kinds: "(1) That necessity which is of a private nature; (2) That necessity which relates to the public justice and safety. The former is that necessity which obligeth a man to his own defence and safeguard. . . . (1) As touching the first of these, namely, homicide in defence of a man's own life, which is usually styled se defendando." . . . In the chapter in which he deals with the exemption created by compulsion or necessity, he thus expresses himself (p. 51): "If a man be desperately assaulted and in peril of death, and cannot otherwise escape, unless to satisfy his assailant's fury he will kill an innocent person then present, the fear and actual force will not acquit him of the crime and punishment of murder if he commit the fact, for he ought rather to

die himself than to kill an innocent; but if he cannot otherwise save his own life, the law permits him in his own defence to kill the assailant." . . . Lord Hale in the following chapter deals with the position asserted by the casuists, and sanctioned, as he says, by Grotius and Puffendorf, that in a case of extreme necessity, either of hunger or clothing, "theft is no theft, or at least not punishable as theft; and some even of our own lawyers have asserted the same;" "but," says Lord Hale, "I take it that here in England that rule, at least by the laws of England, is false; and therefore if a person, being under necessity for want of victuals or clothes, shall upon that account clandestinely and animo furandi steal another man's goods, it is a felony and a crime by the laws of England punishable with death" (1 Hale P. C. 54).

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The one real authority of former times is Lord Bacon, who in his commentary on the maxim, "Necessitas inducit privilegium quoad jura privata," lays down the law as follows: "Necessity carrieth a privilege in itself. Necessity is of three sorts, necessity of conservation of life, necessity of obedience, and necessity of the act of God or of a stranger. First, of conservation of life. If a man steals viands to satisfy his present hunger, this is no felony nor larceny. So if divers be in danger of drowning by the casting away of some boat or barge, and one of them get to some plank or on the boat's side, to keep himself above water, and another to save his life thrust him from it, whereby he is drowned, this is neither se defendendo nor by misadventure, but justifiable." On this it is to be observed that Lord Bacon's proposition that stealing to satisfy hunger is no larceny is hardly supported by Staundforde, whom he cites for it, and is expressly contradicted by Lord Hale in the passage already cited. And for the proposition as to the plank or boat, it is said to be derived from the canonists; at any rate he cites no authority for it, and it must stand upon his own. Lord Bacon was great even as a lawyer; but it is permissible to much smaller men, relying upon principle and on the authority of others the equal and even the superiors of Lord Bacon as lawyers, to question the soundness of his dictum.

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Now, except for the purpose of testing how far the conservation of a man's own life is in all cases and under all circumstances an absolute, unqualified, and paramount duty, we exclude from our consideration all the incidents of war. We are dealing with a case of private homicide, not one imposed upon men in the service of their sovereign or in the defence of their country. Now it is admitted that the deliberate killing of this unoffending and unresisting boy was clearly murder, unless the killing can be justified by some well-recognized excuse admitted by the law. It is further admitted that there was in this case no such excuse, unless the killing was justified by what has been called necessity. But the temptation to the act which existed here was not what the law has ever called necessity. . . . It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be the judge of this sort of necessity? Is it to be strength, or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another's life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer must be, No.

"So spake the Fiend; and with necessity,
The tyrant's plea, excused his devilish deeds."

It is not suggested that in this particular case the "deeds" were "devilish;" but it is quite plain that such a principle, once admitted, might be made the legal cloak for unbridled passion and atrocious crime. ..

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785. DEWEY v. WHITE

NISI PRIUS. 1827

M. & M. 56

THIS was an action of trespass for forcing and throwing a stack of chimneys upon the roof of the plaintiff's house, and damaging and injuring the same.

Pleas, not guilty; and a justification in substance that the chimneys were part of a house of one J. C., adjoining a highway in the parish of St. Andrew's Holborn, and adjoining to the house of the plaintiff, and near to certain other houses; and that the house of the said J. C. was then recently damaged and consumed by fire; and the said chimneys were, by reason of the said fire, in a ruinous and dangerous state, and in great and immediate danger of falling in and upon the said highway, and in and upon the said other houses, and thereby of doing great bodily injury to, and destroying the lives of, His Majesty's subjects passing along the said highway, and inhabiting the said dwellinghouses; and it thereby became necessary, for the safety of His Majesty's said subjects, immediately to remove the said chimneys; whereupon the said defendants did remove and throw down the said chimneys, and thereby did unavoidably damage the house of the said plaintiff. Replication, de injuria, &c., and issue thereon.

The defendants were firemen belonging to the British Fire Office, and the houses of J. C. and of the defendant adjoined a frequented thoroughfare for foot passengers in Holborn.

Upon the plaintiff's counsel contending that the plea, if made out, was no defence to the action,

BEST, C. J., said, That question is upon the record; but I have no hesitation in declaring my opinion now, that the plea, if made out, is a good answer to the action. In analogy to the doctrine of nuisances, and the cases of captains of ships throwing overboard the cargoes to save the lives of the crews, I think it was the duty and right of these defendants to remove these chimneys, and to prevent their remaining to endanger the lives of His Majesty's subjects.

The trial proceeded, and the defendants obtained a verdict, in which the plaintiff acquiesced.

Taddy, Serjt., and D. Pollock, for the plaintiff.
Vaughan, Serjt., and Brodrick, for the defendant.

786. CAMPBELL v. RACE

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1851

7 Cush. 408.

THIS was an action of trespass for breaking and entering the plaintiff's close in the town of Mount Washington, and was tried in the Court of Common Pleas, before BYINGTON, J. The defendant pleaded the general issue, and specified in defence a right of way of necessity, resulting from the impassable state of the adjoining highway, by obstructions with snow. The defendant introduced evidence in support of his plea. . . . But the judge ruled, that these facts constituted no defence to the action; and a verdict having been returned accordingly for the plaintiff, the defendant alleged exceptions.

W. Porter and J. C. Wolcott, for the defendant. I. Sumner, for the plaintiff.

The opinion was delivered at September term, 1852.

BIGELOW, J. It is not controverted by the counsel for the plaintiff, that the rule of law is well settled in England, that where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining lands, without being guilty of trespass. The rule is so laid down in the elementary books,1 and it is fully supported by the adjudged cases. Henn's Case; Absor v. French,2 Young v. Waterpark,3 Taylor v. Whitehead, Bullard v. Harrison. The rule itself is founded on the established principles of the common law, and is in accordance with the fixed and uniform usage of the community. . . .

The plaintiff's counsel is under a misapprehension in supposing that the authorities in support of the rule rest upon any peculiar or exceptional principle of law. They are based upon the familiar and wellsettled doctrine, that to justify or excuse an alleged trespass, inevitable necessity or accident must be shown. If a traveller in a highway, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the travelled paths, so that he cannot reach his destination, without passing upon adjacent lands, he is certainly under a necessity so to do. It is essential to the act to be done, without which it cannot be accomplished. Serious inconveniences, to say the least, would follow, especially in a climate like our own, if this right were denied to those who have occasion to pass over the public ways. Not only would intercourse and business be sometimes suspended, but life itself would be endangered. . . .

1 3 Bl. Com. 36; Woolrych on Ways, 50, 51; 3 Cruise Dig. 89; Wellbeloved on Ways, 38.

2 2 Show. 28.

44 M. & S. 387, 393.

3 1 Ld. Raym. 725.

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