be actual or real danger, or that the peril of great bodily harm should be really imminent. If from the circumstances actually attending the situation at the time the blow was given by the defendant, there were reasonable grounds to believe that the deceased designed to do the defendant some great personal injury at the time, and the defendant struck him with a seal to avert such injury, and not in a spirit of malice or revenge, he was justifiable, although there may have been no design on the part of the deceased to do the defendant any serious injury or danger that it would then be done. The defendant had a right to act upon the appearances, and in deciding upon the situation, and whether the defendant had a good reason to apprehend real danger at the time, the general reputation of the deceased in the neighborhood as being a violent, turbulent, dangerous man or a quiet, peaceable one, as shown by the evidence, as also any threats he may have made shortly before the difficulty, may be considered."

SHERWOOD, C. J. delivered the opinion of the

court:

Action on behalf of Alonzo P. Morgan for damages for killing his father, Presley G. Morgan. On trial had, a verdict was returned for $400 and judgment accordingly. The deceased, who was in the habit of carrying concealed weapons, and had a well established reputation for being a turbulent, quarrelsome and dangerous man, and, it seems, somewhat the physicial superior of Durfee, entered the law office of the latter, to whom his reputation as a dangerous man was well known, in an apparently friendly manner, though he had just previously made threats in a saloon of his purpose to do him a serious injury. After some conversation, the deceased, Morgan, commenced an altercation with Durfee relating to some business matter; showered upon him the most approbrious epithets; repeatedly refused to leave the office when told to do so, saying "he would'nt go out till he got ready," and still continuing his vile abuse. Durfee remarking to him, "Morgan, I intend you shall go out,' pushed him backwards with his open hand a step or two towards a safe which stood by the open door, when Morgan seizing Durfee by the throat and beard, and choking him with one hand so he could scarcely speak, and gesticulating violently with the other, pulled Durfee up to him and toward the door, and was in the act of threatening his life when the latter, who had not touched Morgan but the once, reached out his hand toward the safe in order to steady himself, picked up a notarial seal and struck Morgan on the head, who thereupon released his grip on his throat, fell out of the door, and shortly thereafter died, either from the blow or the effects of the fall on the pavement; from the testimony most probably the latter.

Durfee's testimony, which is uncontradicted in any material particular by the other eye witnesses of the transaction, says when his hand in his effort to steady himself fell on the seal, he seized it by its lower part, raised it up, felt it coming over with force, which he resisted as much as he could, but it struck Morgan's head; that when he struck

with the seal he could scarcely breathe, and that the blow was given at the time the threat before mentioned was uttered, and while Morgan was moving his hand up and down as if trying to get some weapon out of his pocket.

1. Upon the foregoing testimony, the court refused an instruction for the defendant that plaintiff was not entitled to recover. My opinion of this refusal is that it was clearly erroneous, for it appears to me that few cases afford stronger grounds for successful reliance against an action for damages than the present one. Durfee had the unquestioned right to defend his office from ruthless intrusion, and his person against a battery then being inflicted, as well as threatened death. His right was, therefore, of a two-fold nature-defense of his habitation and defense of his person-and, as co-incident with that two-fold right, he was invested by the first law of nature with authority to employ all the means within his reach, all the energies under his control, which the apparent necessity demanded, to expel the unwelcome and turbulent intruder, and protect himself against the murderous intentions of a desperate and dangerous

man.

In Hinchcliffe's Case, 1 Lewin's C. C. 161; Cas. Self Def. 125, upon an indictment for manslaughter, it appeared that deceased and his servant insisted on placing corn in the prisoner's barn, which she refused to allow. They exerted force, and a scuffle ensued, in which the prisoner received a blow in the breast; whereupon she threw a stone at the deceased, and he fell down and was taken up dead. Holroyd, J., said: "This case fails on two accounts. It is not proved that the death was caused by the blow, and if it had been, it appears that deceased received it in an attempt to invade her barn against her will. She had a right to defend her barn, and to employ such force as was reasonably necessary for that purpose, and she is not answerable for any unfortunate accident that may have happened in so doing." And under his lordship's direction the prisoner was acquitted. The principle which dominates that case, it would seem, ought to control this one, unless it can be said that favorable presumptions attend the felling of a man with a stone, but unfavorable with a notarial seal. That case is also authority for the exercise of the power by a trial court, seldom brought into requisition, however, owing to a pitiable and painful weakness in the dorsal region, of directing a verdict for either party, where the facts are undisputed, or where the verdict, if returned for the opposite party, would be set aside as against the evidence. This doctrine is well established. Proffatt on Jur. Tr.. §§ 351, 352, 354, and cases cited.

This case falls, I think, clearly within the above mentioned rule, and that its circumstances would well have warranted the verdict for the plaintiff in being set aside as the result of either passion or prejudice on the part of the triers of the fact; for it is quite clear to my mind, from the evidence, that the act of Durfee was either justifiable or excusable, since he was engaged in a lawful act, and was doing what the apparent necessity of the case demanded; and, whether justifiable or excusable,

the verdict should have been for him. Hinchliffe's Case, supra; 1 W. S., §§ 4, 5, 6, p.

It can scarcely be doubted that, if defendant had been tried for the homicide, he should have been acquitted in such a case, then, certainly, in this the finding should have been in his favor.

In Pond v. People, 8 Mich. 150, a very well considered case, where the accused was tried for murder and found guilty of manslaughter, the death having occurred from a gun shot wound at the out house of the prisoner, where his servants slept, near his dwelling, and it was insisted that he was only chargeable with excusable or justifiable homicide, Campbell, J., remarked: The first inquiry necessary is one which applies equally to all grounds of defense, and is whether the necessity for taking life in order to excuse or justify the slayer, must be one arising out of actual or imminent danger, or whether he may act upon a belief arising from appearances, which give him reasonable cause for it, that the danger is actual and imminent, although he may turn out to be mistaken. Human life is not to be lightly disregarded, and the law will not permit it to be destroyed unless upon urgent occasion. But the rules which make it excusable or justifiable to destroy it under some circumstances, are really meant to insure its general protection. They are designed to prevent reckless and wicked men from assailing peaceable members of society, by exposing them to the danger of fatal resistance at the hands of those whom they wantonly attack, and put in peril or fear of great injury or death. And such rules in order to be of any value must be, in some reasonable degree, accommodated to human character and necessity. They should not be allowed to entrap or mislead those whose misfortunes compel a resort to them. Were a man charged with crime to be held to a knowledge of the facts precisely as they are, there could be few cases in which the most innocent intention or honest zeal could justify or excuse homicide. The prisoner, who is to justify himself can hardly be expected to be entirely cool in a deadly affray, or in all cases, to have great courage or large intellect; and cannot well see the true meaning of all that occurs at the time; while he can know nothing whatever concerning the designs of his assaiiants, any more than can be inferred from appearances." These views are remarkably well expressed, and as I think, they are fully applicable to the undisputed facts in the present case, I have only to reiterate my before announced conclusion, that the case should never have been submitted to the jury except with a direction to return a verdict for the defendant.

* *

*

2. Making the concession however that the case ought to have been submitted to the jury for consideration in the usual way, still the judgment should be reversed for errors otherwise committed in instructing the jury. There was error in the first instruction for plaintiff; because there was absolutely no evidence showing aggravating circumstances; nor that the blow "was wantonly and cruelly inflicted in a spirit of hatred or ill will, and without reasonable provocation."

If there were no aggravating circumstances attending the death, then exemplary damages were not allowable. Cooley on Torts, 144 and cases cited; Whalen v. Centenary Church, 62 Mo. 326; Owens v. Brockschmidt, 54 Mo. 285.

In the case last cited, it was held that where there were "aggravating circumstances, the jury should not be restricted to a mere question of dollars and cents. The obvious corrollary from the adjudication in that case, is that, where there are no aggravating circumstances, the jury should be restricted to the pecuniary or resulting from such death."

necessary injury

3. The second instruction for plaintiff was erroneous in that it held the defendant responsible whether the blow or the fall or both combined caused Morgan's death.

Defendant's act, if it was not wanton but a lawful one, that of resisting the force and violence of the hostile intruder, directed both against the person and possession of defendant, rendered him only responsible for the natural and probable consequences of his act; and not answerable for any unforeseen and unfortunate result which may have attended that act. Hinchcliffe's Case, supra; Railway Co. v. Kellogg, 4 Otto, 469; Cent. L. J. 304.

Worded as the instruction was, the jury may well have concluded that though the defendant was not guilty of any wanton wrong in giving the blow, yet that he was responsible therefor, unless entirely justifiable in inflicting it-whether the blow was or was not the direct or proxomate cause of Morgan's death.

Upon a like theory, defendant would have been civilly liable had he given the blow with his open and unarmed hand.

It should have been left to the jury to say whether the death of Morgan was accidental or the natural consequence of the blow inflicted.

4. The third instruction for the plaintiff was erroneous, because while recognizing the right of defendant to use a deadly weapon in defense of his person against threatened danger of greater personal injury even to the extent of taking the life of the assailant, it utterly ignored and failed to give recognition to an equal right of defendant to do the same thing in defense of his office, which pro hac vice, was as much his dwelling as the house ordinarily known by that appellation.

And this right of defending one's dwelling is in some sense superior to that of the defense of the person; for in the latter case, it is frequently the duty of the assaulted to flee, if the fierceness of the assault will permit, while in the former, a man assaulted in his dwelling is not obliged to retreat, but may stand his ground, defend his possession, and use such means as are absolutely necessary to repel the assailant from his house, even to the taking of life. Pond v. People, supra, and cases cited; 3 Grlf. Ev. §§ 65 and 117; State v. Patterson, 45 Vt. 308 and cases cited; Parsons vBrown, 15 Barb. 590.

And the instruction was also erroneous on another score. It told the jury that if there was reasonable ground to apprehend great personal injury from the deceased," and the defendant struck him

is

with the seal to avert such injury, and not in a spirit of malice or revenge, he was justifiable." It will be observed that the term "malice not defined; the jury were therefore left to construe it as they would.

It is a legal term, and "understood to mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of a great sense of social duty, and fatally bent on mischief." 3 Greenl. Ev., § 144.

It would seem, from the instruction, that malice was regarded as the legal equivalent of revenge. This was an evident error, and even if properly regarded as meaning revenge, the instruction was erroneous, in not having a particle of evidence to support it.

5. It is unnecessary to examine in extenso, the instructions asked by defendant, since we have incidentally reviewed most of those asked by him.

The seventh instruction, however, asked in his behalf, was properly refused, for it told the jury that, if Presley G. Morgan could not, had he lived, recover against defendant, plaintiff could not do so. This, though true as a matter of law, had nothing to do with. the case, so far as concerned the jury.

6. As above indicated, the statute under which this action was brought, authorizes, where there are circumstances of aggravation, the recovery of vindictive, exemplary or punitive damages, and where such recovery is allowable, the pecuniary standing of defendant is an obviously proper subject of inquiry. But as there were no aggravating circumstances in this case, and, consequently, no vindic ive damages recoverable, the opulence or poverty of defendant was not properly admitted in evidence.

Judgment reversed and cause remanded. Judge Henry concurs in the first point discussed. Judge Norton concurs in the result. Judges Napton and Hough dissent.

ABSTRACTS OF RECENT DECISIONS.

SUPREME COURT OF KANSAS.

January Term, 1879.

[Filed June 10, 1879.J

EMINENT DOMAIN-EASEMENT-TITLE ACQUIRED BY RAILWAY COMPANIES.- Railway companies, by virtue of their compulsory powers to take land under art. 9, ch. 23, of the General Statutes, and amendments thereto, acquire no absolute title in fee simple in the lands condemned, but only the right to the perpetual use of the property for railroad purposes. 2. The proprietor of the soil still retains the fee of the land and his right for every purpose, not incompatible with the rights of the railroad. 3. As a matter of law, the railroad has the paramount right to the land, and the land owner must yield to the superior claim secured by the condemnation proceedings, and he can not in any mode or for any purpose interfere with the use of the proprty so taken for railroad purposes. Whether the ne

cessities of the railroad require cxclusive occupancy of the land, is a question of fact and not of law. Judgment reversed. Opinion by HORTON, C. J. VALENTINE, J., concurring.-Kansas Cent. R. Co. v. Allen.

ABANDONMENT. 1.

EVIDENCE-LOST WRITING-PROOF BY COMPARISON.-1. The genuineness of a signature to a lost written instrument may be proved by an expert who examined said signature before the instrument was lost, by his comparing his recollection of such signature with the admitted genuine signature of the same person on papers already in the case. 2. Where a party to an action testifies on the trial as a witness that he lost a certain written instrument-giving the time when he lost it--and that he has never seen or heard of it since; and afterwards it is proposed by him to prove by another and competent witness that the signature to said written instrument was genuine, and also to prove by such witness the contents of such written instrument; and the opposite party objects to the introduction of the evidence on the ground of incompetency: Held, that the objection goes to the competency of the evidence itself, and not to the competency of the witness, or to the competency of the preliminary proof, and that such evidence should be received. Judgment reversed. Opinion by VALENTINE, J. All the justices concurring.-Abbott v. Coleman. HOMESTEAD-EXEMPTION FROM DEBTS-RIGHTS OF WIDOW AND CHILDREN Where a man, owning and occupying a eertain piece of land as a homestead, dies intestate, owing many debts and leaving no personal property with which to pay them, and no real estate except said land, and also leaves a widow and several children, some of whom are occupying said land at the time of the intestate's death: Held, that the title to said land descends to his widow and children (adults as well as minors, and to those who do not reside upon the land as well as those who do), just the same as it would descend if the property were not occupied as a homestead, except that it descends to them subject to a certain homestead interest, vested in those of the widow and children who occupy the homestead at the time of the intestate's death. And further held, that so long as said widow and children continue to occupy the homestead and the widow does not marry again, and one or more of the children remain minors, they may hold the property as their homestead as though it were their absolute property, free from all debts (except incumbrances given by the husband and wife, and taxes, and debts for purchase-money and improvements), and free from division or distribution; but if they all abandon the property as a homestead (without any change of title), it then becomes subject to debts (the intestate's as well as their own) and to division the same as though it had never been a homestead. 2. The homestead exemption right vested in the widow and children of an intestate is just like any other homestead exemption right, except that it is held by the occupants (prior to the widow's remarriage, and prior to all the children's reaching their majority) free from division or partition as well as free from debts, and when it is abandoned as a homestead (if not previously sold), it becomes liable for the intestate's debts, as well as for the occupants own debts; and further held, that if the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior incumbrances given by the intestate and wife, or grantor and wife or husband, and taxes, and debts for purchase money and improvements, although the property may afterwards be abandoned as a hometead by the widow and children. Judgment revers

no contempt. The notary, by going through the forms prescribed by the deposition act, does not necessarily acquire the power to require the defendant in a suit to answer any question the notary, in his ignorance of law, may choose to insist upon, on penalty of perpetual imprisonment. It was not the intention of the law to confer such arbitrary power on a notary public. 3. Where, in a proceeding by attachment, plaintiffs, depositors in a bank of which defendant was president, seeking to hold him liable for a statutory penalty, caused defendant to be examined before a notary, and the eliciting of testimony which might possibly be used was evidently made a mere cloak for ascertaining the whereabouts of defendant's property, with a view to attach it, the refusal to answer questions as to the whereabouts of his money was no contempt, and did not warrant the commitment of the witness. The proceeding was an attempt, at the commencement of an action, to inaugurate a proceeding permitted only after final judgment, and to disregard the safeguards thrown around that proceeding by the execution act. 4. A deposition under the statute does not correspond to a bill of discovery in chancery. It is an abuse to take depositions for the mere purpose of discovery. 5. The abuse of judicial power in the matter of taking depositions, by assuming to commit for a refusal to answer questions upon which no court would insist, is a matter that addresses itself directly to the courts. If, in any case, a notary assumes to take testimony, not for the courts, but for the private purposes of parties, he violates his duties, and is amenable to the courts for such violation, and attorneys engaged in promoting such a proceeding subject themselves to punishment by the courts of which they are officers. Prisoner discharged. Opinion by HAYDEN, J.-Ex parte Krieger.

to use due care in employing and maintaining suitable instrumentalities for the performance of the work required of his servants. This duty is imposed upon him as master, and is an absolute and personal duty, from the responsibility of which the master can not escape by entrusting its performance to an agent or a servant. If the master does so entrust it, the servant or agent is charged with the master's duty, and, in the case of a corporation, such servant or agent occupies the place of the corporation, and the latter is deemed present, and, consequently, liable for the manner in which such servant or agent acts. The negligence of the servant or agent, in such cases, is the negligence of the master. In the instance of a railroad, the track is one of the instrumentalities for the working of the road, and, therefore, something which it is the master's absolute and personal duty to employ due care in maintaining and keeping in a condition suitable to the purposes for which it is to be used; that is to say: in such a condition that it can be safely used for such purpose. Held, that the negligence of the section-foreman, in taking up a rail for the purpose of repairing the track, without putting out any proper signals as a warning to approaching trains, was the negligence of the corporation, and that plaintiff, who was a laborer, employed by the corporation on a wood-train that was ditched in consequence of the negligence of the section-foreman, could recover. The principle which exempts a master from liability to one servant for the negligence of a fellow servant, has no application. Opinion by BERRY, J.— Thompson v. Drymala.

SUPREME COURT OF MINNESOTA.

[Filed June 12, 1879.]

ATTACHMENT.-An action for wrongfully causing an attachment to issue, must be governed by the rules, so far as applicable, that apply to an ordinary action for malicious prosecution. The plaintiff, in such action, must allege and show that the attachment was vacated in the action in which it issued, or that he had no opportunity to make a motion to vacate it. Opinion by GILFILLAN, C. J.—Pixley v. Reed.

EMINENT DOMAIN-COMPENSATION.-The charter of defendant authorized it to enter upon lands and construct and operate its road over them in advance of making compensation for the lands taken. Some years before instituting proceedings to obtain the right of way over the lands of plaintiff, it entered upon a strip of land belonging to plaintiff, constructed its road over it, and has been in possesson of, and operation of, its road over the same ever since. Held, that, although the clause in the charter, authorizing the defendant to enter upon and construct its road over lands without having first made compensation for the lands taken, was void, and the defendant was a trespasser in so entering, and whatever it affixed to the soil becomes a part of, and strictly belonged to the owner of the soil; yet, as in these proceedings, the question is, what is just, fair and equitable compensation to be paid to the owner for taking the land, and damages arising from taking the same, such owner is not entitled to have included as a part of such compensation the value added to the land by the road-bed ties, rails, etc., placed on it by defendant. Opinion by GILFILLAN, C. J.-Greve v. First Division St. Paul R. Co.

[Filed May 20, 1879.]

MASTER AND SERVANT.-It is the duty of the master

SUPREME COURT OF IOWA.

June Term, 1879.

HUSBAND AND WIFE-LIABILITY OF WIFE Under STATUTE FOR FAMILY EXPENSES.-Under section 2214, of the code which makes the expenses of the family chargeable upon the property of the wife, as well as that of the husband, one who advances money to the husband, at his request, to pay indebtedness incurred for family expenses, can not recover the same from the wife. The person to whom the indebtedness is incurred, or his assignee, alone comes within the statute. Opinion by ADAMS, J.-Sherman v. King.

TAX-TITLE-STATUTE OF LIMITATIONS-POSSESSION. Where land, upon which a tax-title has been acquired, remains unoccupied for five years after the recording of the tax deed, the title of the tax purchaser becomes absolute and perfect, and the holder of the patent title can not, thereafter, acquire such possession of the land as to enable him to plead the statute of limitations to an action by the holder of the tax deed to obtain possession. Beck, C. J., and Rothrock, J., dissenting. Opinion by SEEVERS, J.-Moingona Coal Co. v. Blair.

MECHANICS' LIEN-ROLLING STOCK OF RAILWAY IS PERSONALTY.-1. The rolling stock of a railway is personal property and not real estate, and, therefore, is not subject to a mechanics' lien. State Treasurer v. Summerville & Gaston R. Co., 28 N. J. L. 21; Williamson v. New Jersey Southern R. R., cited in 6 Cent. L. J. 381; Randall v. Elwell, 52 N. Y. 521; Hoyle v. Plattsburgh R. Co., 54 Id. 314; C. & N. W. R. Co. v. Borough, of Fort Howard, 21 Wis. 44; Coe v. Columbus R. Co., 10 Ohio St. 372. 2. A mechanics' lien for material furnished may be established for the full amount contracted for and furnished, notwithstanding the fact that only a portion of the same was used by the purchaser in the construction of the improvement upon which the lien is claimed. Opinion by SEEVERS, J.Nelson v. Iowa Eastern R. Co.