Russell v. Barrow , 7 Port. 106 ( 1838 )

GOLDTHWAITE, J.

— No objection appears to have been made in the Circuit court, to the introduction of the evidence, as applicable to the issue formed between the parties; nor was any attempt made to exclude it from the jury for this reason, but it seems to have been considered as properly before the court and jury.

Under these circumstances, the charge is certainly erroneous, and we do not feel at liberty to construe it as having been made on mere abstract questions, not arising in the particular case; which rule, perhaps, may be applied, without doing injustice to the refusal to give the charge ashed for.

We understand the court to have said to the jury, with reference to this case, that under no circumstances, wilpone citizen be permitted to destroy the property of another, without being responsible, in damages, for its value.

In this opinion, the court erred —A man may, under many circumstances, destroy the property of another, and yet be wholly justified, as in the case before us, he certainly was; and if he had presented the defence by plea, he would have been entitled to a verdict, — and as the parties seem to have waived a plea, by permitting the justification to go to the jury without objection, it was a matter which the jury could have considered in mitigation of damages at least, if they had not been instructed by the court as before stated.

We do not deem it necessary to go into an examination of authorities, to establish a position which seems to be self-evident — that a man, who is forced by circumstances, to protect his own life, or the lives of members of his household or family, by the destruction of a beast, cannot be made responsible to its owner for its value. If, in such cases, a loss happens, it is more just that it should fall as a misfortune on the owner, than on him who is acting in strict conformity with the first law of nature. •

The judgment must be reversed and the cause remanded.