Where the limitations of Code do not apply.

is clearly barred on its face, will be deemed as having elected to stand upon the other defenses, made to the demand on the trial, and will not be allowed to abjure such election. Clinton v. Eddy, 37 How. 23; S. C., 54 Barb. 54; Bucklin v. Chapin, 1 Lans. 443.

In proceedings before a surrogate, it is too late for executors to avail themselves of the statute as a defense, after the evidence is closed and the case has been submitted on written points. Van Vleck v. Burroughs, 6 Barb. 341.

Section 3. Where the limitations of Code do not apply.

a. Actions on bank notes. The provisions of the Code in reference to limitation of actions have no application "in actions brought to enforce the payment of bills, notes, or other evidences of debt, issued by moneyed corporations, or issued, or put in circulation, as money." Code, § 108.

b. Actions against directors or stockholders. Nor to actions against directors or stockholders of moneyed corporations or banking associations, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within six years after the discovery by the aggrieved party, of the facts upon which the penalty or forfeiture attached or the liability was created. Code, § 109.

c. In cases of trust. In cases of trust, the statutes of limitation proper have no application; but a court of equity will sometimes refuse relief, upon the ground of lapse of time and its inability to do complete justice. So long as the relation of trustee and cestui que trust is acknowledged to exist between the parties, and the trust is continued, lapse of time can constitute no bar to an account, or other proper relief to the cestui que trust. But where this relation no longer exists, or time has obscured the nature of the trust, or the acts of the parties, or other circumstances, give rise to presumptions unfavorable to its continuance; in all such cases, lapse of time will be a bar to relief. Story's Eq. Jur., § 1520.

In illustration of this principle, see Ellison v. Moffat, 1 Johns. Ch. 46; Ray v. Bogart, 2 Johns. Cas. 432; and Kingsland v. Roberts, 2 Paige, 193; Lyon v. Chase, 51 Barb. 13.

CHAPTER VII.

OF REMEDIES WITHOUT ACTION.

ARTICLE I.

OF PREVENTIVE MEASURES.

Section 1. In general. Courts of justice are instituted in every civilized society for the purpose of securing an effectual redress of private injuries, by protecting the weak from the insults of the stronger, and by expounding and enforcing those laws by which rights are defined and wrongs prohibited. This remedy is principally to be sought by an application to these courts of justice, by means of a civil suit or action. But, as there are certain injuries of such a nature that some of them furnish and others require, a more speedy remedy than can be had by the ordinary forms of justice, there is allowed, in any such case, an extrajudicial remedy without the aid of the courts. In many cases the most speedy justice afforded by the courts could not adequately supply the absence of such immediate and necessary remedies, nor could the natural impulse of self-defense against sudden and immediate aggressions be restrained. The law, therefore, permits parties to adopt certain modes of resistance, and merely interferes to modify and regulate the means employed. Laws for the prevention of injuries are sometimes better than those for compensation or punishment, as they prevent loss to the individual, and the necessity of prosecuting the wrong-doer at the risk of his being utterly unable to make compensation, or even to re-imburse the expenses of legal proceedings against him. Preventive remedies may be variously divided, and for the purpose of convenient discussion they will be presented in the order adopted in this chapter.

ARTICLE. II.

DEFENSE BY RESISTANCE.

Section 1. In general. Self-defense is one of the first and strongest impulses of our nature. And the law respects the passions of the human mind so far as to render it lawful for him to do

Defense of the person- - Personal property.

himself that immediate justice to which he is prompted by nature, and which no prudential motives are strong enough to restrain. The future process of law may be by no means an adequate remedy for an injury accompanied by force; and it is impossible to say to what lengths of rapine or cruelty an outrage of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. 3 Broom and Had. Com. 3. Self-defense, therefore, as it is justly called the primary law of nature, so is not, neither can it be in fact, taken away by the laws of society. Ib.

Section 2. Defense of the person. The strongest justifiable açt of defense is the killing of the aggressor, and which of course includes battery, wounding, and mayhem, or a minor damage. The general rule is, that a homicide may be committed for the prevention of any forcible and atrocious crime, which would, if completed, amount to a felony, and, under the circumstances, a mayhem, wounding or battery would be equally justifiable.

Self-defense is also equally justifiable when a person is illegally attacked although the aggressor may not intend to commit a felony. But the party defending ought not to permit his resistance to exceed the bounds of defense and prevention, for if he does, he may become himself an aggressor.

Section 3. Defense of personal property. A man may repel force by force in defense of his personal property, and justify homicide against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, as robbery; but this rule does not extend to the case of a pickpocket, for that would not be a case of forcible felony. 1 Chit. Gen. Pr. 597. When one person has unlawfully entered upon the premises of another and possessed himself of the goods of the owner, the latter or his agent may, while upon his own premises, prevent the wrongdoer from taking such goods away, and may lawfully use so much force as may be necessary to retain his property and prevent its removal out of his custody and beyond his reach. law does not oblige the owner of property to stand idly by and see a thief or trespasser take his property from his premises, or limit him to mere verbal remonstrance. He may act promptly, and whether he may use force or not in the first instance, and what degree of force depends upon the exigency of the particular case. Gyre v. Culver, 47 Barb. 592. The mere taking of the property by the owner, under such circumstances, from the cus

The

Defense of real property.

tody of the wrong-doer, without other force or violence, does not constitute an assault and battery. And if the taking, or the attempt to take, is resisted by the trespasser, and he persists in his attempt to retain possession and to carry the property off, then the owner may lawfully use so much additional force as may be necessary to prevent it. Ib. But, even in such a case, the force must not exceed that necessary for the defense of the property. And where the plaintiff took hold of a rake in the defendant's hands in order to take it from him, upon which the defendant immediately knocked the plaintiff down with his fist, this was held to be an unlawful act. Scribner v. Beach, 4 Denio, 448.

Section 4. Defense of real property. A person may lawfully defend or protect the possession of real property, and if the assailant is attempting to commit a forcible felony, such as burglary, arson, or the riotous demolition of a house, the party in possession may resist even to the extent of taking the life of the felonious assailant. So where a forcible attack is made upon a dwelling-house, but without any felonious intent, and for the purpose of committing a mere trespass, it is, as a general rule, lawful to oppose force by force when the former is illegal. In such cases a party may justify a battery, by showing that he committed it in defense of his possession, as for instance to remove a trespasser out of his close or house, or to prevent him from entering it, or to restrain him from taking or destroying his goods; but the battery must here be limited to only that degree of violence and the use of such weapons only as may be absolutely essential to effect the object, and no more. A possession in fact, of land, will justify the possessor in using violence, if necessary, in order to defend his possession; but a mere right to the possession will not justify a person in committing an assault and battery upon another, for the purpose of reducing his right to actual possession. Parsons v. Brown, 15 Barb. 590. See, also, Sage v. Harpending, 49 id. 166; 34 How. 1; Corey v. People, 45 Barb. 262.

When the entry upon lands is made with no more force than that termed implied force, or force in law, there ought to be a request by the lawful possessor that the wrong-doer depart from the premises before a resort to actual force is employed for his removal. If he refuses to leave, then gentle force may be used; and, if he still resists, then such force as may be necessary may

Defense of other persons.

be employed. When the entry is forcible, it is lawful to use force against force without a previous request to depart. The distinction between an entry with actual force, and an entry with only implied force, with regard to a trespass on land, has been settled law from an early period.

A mere trespass on land, or that of the property thereon, is not such an act as justifies the owner in making use of a dangerous or a deadly weapon. There are several methods of protecting property, as by dogs and by instruments dangerous to trespassers, but information relating to cases of that kind must be sought in works devoted to the explanation of such subjects.

ARTICLE III.

DEFENSE OF OTHERS.

Section 1. In general. The principle which sanctions the defense of one's own person is extended to certain relations. Thus husband and wife, parent and child, master and apprentice, and master and servant are legally excused, and sometimes even justified, in killing an assailant about to commit a forcible felony upon the other, when such homicide has been committed in the necessary or lawful defense of each other; the act of each of those relations being then construed the same, and equally permitted as the defense of the party himself. 1 Chit. Gen. Pr. 613. This principle extends still further, for, if a felonious attack is made upon an individual, then any other person, though not a relative, may lawfully interfere to prevent the mischief intended, and, if in so doing, death ensues, he will, in that case, be justified. Ib. But with regard to mere trespasses, there is a very material difference between the interference of certain relations and of mere strangers. The former may justify immediate resistance with force when necessary, but a stranger can only interfere moderately, and with gentle hand to prevent the wrong. Ib. A mere stranger cannot justify an interference with force in the first instance to prevent a battery of a third person or any other trespass or civil injury, where death or any felony is not likely immediately to occur, but must proceed more moderately, and should previously declare or signify that he interferes merely to preserve the peace and not as a partisan, and he can only justify the gently laying on of his hands to prevent a breach of the