tendered, according to law. It is not sufficient to prove a waiver on the part of the witness of his right to service and fees.1 So, where one beneficially interested in a cause, from ignorance of the law, surrenders his rights, he cannot hold the opposite party to a knowledge of the law, and charge him for the loss occasioned by his own indiscretion. Thus, where a constable levied on and sold property, already bound by executions in the hands of the sheriff, and paid over the money to the plaintiffs in the executions in the sheriff's hands, and the plaintiffs afterwards paid the same back to the constable, under advice that his levy and sale had divested the executions in the sheriff's hands of their lien; held, the plaintiffs could not afterwards charge the sheriff with negligence, although he was advised that the proceedings of the constable had divested the executions in his hands of their lien, and had acted under that advice. So, where fire-arms were taken from a negro, under the South Carolina act of 1819, and the owner, with a knowledge of the proceedings, did not oppose the condemnation by the magistrate, he could not maintain trover against those who seized them and caused them to be condemned. So although, if selectmen, being in session for the purpose of revising the list of voters previous to a town meeting, upon the application of one whom they know to be a legal voter, refuse to place his name upon the list, and inform him that they shall not do so, in consequence of which he omits to offer his vote at the meeting, the selectmen will be liable notwithstanding he does not offer his vote; it is otherwise, if after such refusal they reconsider their determination and place his name on the list before the opening of the meeting, so that his vote, if offered, would be received at the first voting or balloting. (a) So if one, who has sold on the representation of 1 Robinson v. Trull, 4 Cush. 249. 2 Harrison v. Marshall, 6 Port. 65. 8 Ibid. 4 Rice v. Parham, Dudley, 373. (a) Upon the same principle, involving also the right gained by long use or prescription, if the grantee of a market under letters-patent from the > another concerning the buyer's circumstances, afterwards tells the buyer he will sell him no greater amount without further references, and after that intrusts him to a greater amount; the author of the misrepresentation is not liable beyond the sum due at the date of the plaintiff's declaration.1 11. Upon the same principle, a party cannot maintain a suit, for an act which could become injurious to him only by means of some wrongful conduct on his own part. Thus a lessor, during the term, cut down oak pollards growing upon the land, which were unfit for timber. Held, as the tenant for life or years would have been entitled to them, if they had been blown down, and was entitled to their usufruct during the term, the lessor could not, by wrongfully severing, acquire any right to them, and consequently he or his vendee could not maintain trespass against the tenant for taking them.2 12. Upon similar ground, a party who is himself a trespasser, in relation to real or personal property, can maintain no action against the rightful owner, for any act done in assertion of his title. (a) Thus the proprietor of land, who has the right to immediate possession, may expel a mere 1 Hutchinson v. Bell, 1 Taunt. 558. 2 Channon v. Patch, 5 B. & C. 897. Crown suffer another to erect a market in his neighborhood, and use it for the space of twenty-three years without interruption, he is by such user barred of his action on the case for disturbance of his market. Holcroft v. Heel, 1 Bos. & Pul. 400. (a) Unless in case of wilful and intentional injury by the defendant. Terry v. New York, &c. 22 Barb. 574. It seems that a person is not permitted, for the protection, in his absence, of property against a mere trespasser, to use means endangering the life or safety of a human being, whatever he may do where the entry upon his premises is to commit a felony or a breach of the peace; and, where such means are used, the nature and value of the property sought to be protected must be such as to justify the proceeding; full notice of the mischief to be encountered must be given; and the principles of humanity must not be violated; or the owner will be subject to damages for any injury which may ensue. Loomis v. Terry, 17 Wend. 496. intruder by such force as may be necessary, and he will, in any event, acquire a rightful possession of the land; although if guilty of a breach of the peace, or a trespass upon the person of the intruder, he is liable for it. (a) So, where A., the owner of cattle, found them in the possession of B., who forbade A. to enter upon his land, and no evidence was given to show how the cattle escaped from A., or how they came into the possession of B.; held, A. might enter upon B.'s land and take the cattle, if he could do so peaceably.2 So, it is held, if the owner of land find cattle upon his land, he may seize and hold them as a pledge for the payment of damage, where he would be entitled to damages. But, if he seize them where he would not be entitled to damages, the owner of the cattle may maintain trespass against him for damages to the cattle while in his possession; as where the owner of the land has not a sufficient fence against the cattle,3 (see § 13). So it is said, "If a man takes my goods and carries them into his own land, I may justify my entry into the said land to take my goods again; for they came there by his own act."4 But the mere fact of my goods being placed on another man's land, will not justify my entering thereon, and repossessing myself of the goods, unless they have been feloniously stolen. If, however, they are found in a common, fair, or a public inn, it is said they may be lawfully reseized by the rightful owner. And if fruit drop from the tree of one man upon the land of another, or the tree of one fall upon the land of another, it is said the owner of the fruit or tree may enter upon such land to recover his property, on the ground of accident." 13. This particular application of the general rule often comes in question, as has been seen, (§ 12,) with reference to t > injuries done by or to domestic animals. (a) Thus the plaintiff's sheep were trespassing in the ground of the defendant, who drove them out with a little dog. The dog pursued them into the adjoining ground, though the defendant called in his dog as soon as he had driven the sheep off from his own grounds. Held, trespass did not lie. So, when cattle break from the highway into an enclosure, and are there doing damage, and the owner of the land drives them out by means of a dog, using all ordinary care; he is not responsible for injury thereby occasioned to the cattle.2 But on the other hand the owner of sheep is justified in killing a dog, which had destroyed some of his sheep, and returned upon his premises apparently for the purpose of destroying others, although the dog at the time he is killed be not in the very act of destroying or worrying the sheep; and although it be not shown that the owner of the dog was cognizant of his bad qualities, or that there were means of preventing the injury. So, in trespass for killing the plaintiff's dog, there was evidence tending to show that the dog was vicious, known to be so by the owner, and in the act, at the time, of doing injury to the defendant's property in his garden. Held, it was error to instruct the jury to find for the plaintiff, leaving to them to fix only the amount of damages. So, where the dog of A. is on the land of B. chasing fowls, and in the act of destroying one; B. may lawfully shoot the dog in the same manner as if he were chasing and killing sheep, or other reclaimed and useful animals. And it is enough that the fowl is on the land of B., without showing property in the fowl. And the jury are to decide whether the killing of the dog was justified by the necessity of the case, and was requisite to preserve the fowl. But, if the defendant's hogs go into the adjoining 1 Beckwith v. Shordike, 4 Burr. 2092. 2 Davis v. Campbell, 23 Vt. 236. 8 Parrott v. Hartsfield, 4 Dev. & Batt. 110. land of the plaintiff, by Paff v. Slack. 7 Barr, 254. 5 Leonard v. Wilkins, 9 Johns. 233. (a) See Animals, Nuisance, Property. reason of the partition fence, which the plaintiff is bound to keep in repair, being insufficient, he cannot maintain an action of trespass. So laying hold of a horse, and removing him from before the defendant's door, is no trespass, without particular damage.2 So it is held, that a railroad company is not liable, for negligently running an engine upon and killing the cattle of the plaintiff, which had come from the highway upon the track of the railroad, though there was no physical obstacle to prevent their entry.3 (a) So in an action of trespass for killing a dog, the plaintiff proved that the defendant confessed he killed the plaintiff's dog, who assaulted him in the highway, &c. Held, the confession must be taken altogether, and amounted to a justification. So a man is justified in killing an enraged bull, in the necessary defence of himself or of his family.5 14. But it has been held no justification, in trespass for killing a mastiff, "that he ran violently upon defendant's dog and bit him;" but the defendant should state further that he could not otherwise separate the mastiff from his dog.6 So it is held no defence for killing a dog, that the dog was trespassing upon another's property, and the defendant as his servant, when he could not otherwise prevent the dog from doing further injury, killed him. So it is no defence for shooting the plaintiff's mules, that they had broken into the defendant's enclosure and were injuring his crops. So, on the other hand, it is held no answer to the action, where the defendant knew the vicious propensity of the animal, to prove that the party injured was himself guilty of some imprudence or negligence in the transaction; as that the plaintiff trod upon the defendant's dog while it lay at his door, the defendant knowing it was accustomed to bite, (see p. 134, n.) So where the defendant, knowing that his dog 1 Shepherd v. Hees, 12 Johns. 433. 2 Slater v. Swan, 2 Strange, 872. 8 The Tonawanda, &c. v. Munger, Denio, 255. Credit v. Brown, 10 Johns. 365. 5 Russell v. Barrow, 7 Port. 106. 8 Ford v. Taylor, 4 Texas, 492. (a) See Railway. |