Murdock v. Ripley , 35 Me. 472 ( 1853 )

Wells J.

— The defendant, acting as the aid of the officer in making the arrest of Bridgham, was justified in using such force as was necessary to overcome the resistance of the plaintiff. If he used more force than was necessary to accomplish that purpose, he b.ecame a trespasser. 1 Chit. Plead. 164. Cockroft v. Smith, 2 Salk. 641.

The plaintiff, by his resistance, may be considered as contributing to the injury, which, it is alleged, he received, but that resistance could not justify unnecessary violence. The fault of the plaintiff in the first instance would afford no justification for the defendant in transcending the line of his duty.

It fell within the province of the jury to determine whether the defendant exercised a proper judgment in repelling the resistance of the plaintiff, and if his own judgment led him astray, he must be responsible for the consequences.

Exceptions sustained, verdict set aside and a new trial granted.

Shepley, C. J., and Tenney and Appleton, J. J., concurred.