Сн. 2. Art. 7. Tomlinson v. 330.-Roberts on Frauds. 232, 237. See cases cited Ch. 9 a. 20, s. 25. tee in Wain v. Warlters, 5 East 10, 20; cited art. 25; also ch. 19 a. 20, s. 33; ch. 11, a. 14, and Sumuer v. Parsons, referred to ch. 20 a. 14, s. 5, (in this case a questionable consideration was stated and proved.) See 14 Vesey 190, Seers v. Brink, ch. 11 a. 13, s. 5. §3. Where B owes a duty or debt to C, and A for a new Gill, Ambler consideration undertakes, not collaterally but directly, to pay or do what B engaged to pay or do, this is not a case within the statute of frauds, (as the other two are.) But this new consideration for A's engagement or guarantee must be distinct and independent of B's debt or duty, and one moving between A and C, the parties to the new promise in fact original. See cases cited ch. 9 a. 20, s. 9; and 7 D. & E. 201; 1 Saund. 211 note 2. Hence in this 3d class of cases, A's undertaking need not be in writing. 6 East 307, 308, cites 5 East 10, 20. 4. Where A undertakes to pay B's debt &c., and A's promise must be in writing founded on a distinct consideration, -See 14 Ves. how far must it be stated in the writing? According to Wain 190-15 Ves. v. Warlters, the consideration moving A's promise must be sta287, Sumner ted in the writing to make his promise valid on the statute of frauds; recognized in New York in Seers v. Brinks, 3 Johns. R. 210, but not adopted in Massachusetts, as Hunt v. Adams 113.-See cited and examined ch. 11 a. 14, and the Supreme Court in ch. 9 a. 20, s. 33 ch. 11'a. New York in Leonard v. Vredenburgh, 8 Johns. R. 29, 41; 14.-5 Cranch allowed the consideration of such after collateral promise to v. Parsons.American Precedents 322, 335. be proved by parol evidence, as that the guarantor undertook at the time the original contract was made. On the whole, as to this last class the law seems to be unsettled. It is clear that prior to the case of Wain v. Warlters, it was not usual to require the consideration to be stated in the written memorandum; and the endorsement of a promissory note is primâ facie evidence of full consideration; and why is not a guarantee of one? See ch. 173 a. 9. 3 Bl. Com. 7, 8, &c. CHAPTER II. REMEDIES BY THE ACTS OF THE PARTIES. ART. 1. IN certain cases from necessity. § 1. In some cases of necessity the party injured is allowed to seek his own remedy; to retake his property; to repel force by force; to abate nusances; to take beasts damage feasant, &c. 2. The defence of one's self, husband, wife, child, parent, 2 Inst. 316. mother, or servant, is a natural right, which has scarcely ever CH. 1. Art. 5. been taken away by any municipal law. Hence if one in these near relations be attacked, another in them may lawfully repel force by force. The particular cases in which this may be done are numerous; but one general principle holds in them all, and that is, the defence must be regulated by the nature, degree, and design of the attack. I may kill one who attempts to take my life, or to commit a burglary in my house, but not one who only attempts to trespass on my land. There Gregory and is also another principle, the repelling force must go no fur- wife v. Hill. ther, than is necessary to prevent the mischief intended by the aggressor. 8 T. R. 299, Goddard v. 3 m. 16. 3. In using force there are two kinds. 1. Gently laying Salk. 641, on hands. 2. Actual force. "There is a force in law, as in every trespass quare clausum fregit. As if one enter into my 5 Com. D. grounds, here I must request him to depart, before I can lay 772, Pleader hands on him to turn him out; for every laying on of hands is an assault and battery, which cannot be justified upon account of breaking the close in law, without a request." So 2d, there is an actual force, as in burglary, or in breaking_open a door or gate; and in that case, it is lawful to oppose force by force. And if one breaks down the gate, or comes into my close vi et armis, I need not request him to be gone, but may lay hands on him immediately; for it is but returning violence for violence." "So if one comes forcibly, and takes away my goods, I may oppose him without any more ado; for there is no time to make a request." Thus breaking a gate is actual force. So if one by force attempt to enter upon my land, I may Weaver v. 8 T. R. 78, at once use force to repel him, and need not plead molliter Bush. manus imposuit; which plea justifies an assault and battery, but not a wounding. 138, Thewell §4. So if one be possessed of a house, and another at- Cro. Jam. tempts to put him out, he that is so possessed may gently lay. Avery. hands on him to put him away. The possession is but inducement; the attempt to put out is the material part. 91.-5 Com. $5. So molliter manus may be to remove a trespasser from Willis. 14, my house or property, after a request to depart, who does not 18, 688, ch. enter with actual force, or who enters lawfully and remains D. 772.unlawfully; or I may use actual force to remove him who en- Pleader 3 M. ters with actual force, or remains with actual force. 16.-Lutch 1435, 1483, 6. In all these cases the owner of the property is in the 1497. right to defend it; and the party who invades it is the aggressor, and in the wrong; and such force as he uses may be returned by the owner in defence of his property; and if the aggressor persist in his wrong, and is repelled by a return of violence, he brings the evil upon himself. The general rule is, the owner must defend his property by gently laying on hands till the aggressor uses actual force to get or keep possession, Сн. 2. to take away or destroy it, and then the owner may lawfully Art. 3. return actual force proportioned to the circumstances of the case in other words, the degree of force must be reasonable, all circumstances considered. 3 Bl. Com. 8. -Mass. Act July 4, 1786. 3 Bl. Com. 174, 175, 176. -32 H. 8, 33. Co. L. 15, Litt. sect. 417.-3 BI. Com. 175.-3 T. R. 292. ART. 2. By recapture. If one wrongfully take away my goods, or detain my wife, child, or servant, I may lawfully retake either, when I can do it in a peaceable manner, without force or terror, and without disturbing the public peace. The law founded in reason considers that I may be without remedy, if I be not allowed this mode of redress, as my goods or relation may be carried beyond my reach, before I can have a remedy by suit or action. But this mode of redress is limited. If I find my horse so taken from me in the highway, common, or public inn, I may retake him; or to do this I may peaceably enter upon the land of the wrong doer. But to take my property in this case, I cannot lawfully enter upon the land of a third person, or break open a private stable, except it be feloniously taken. If my property, as a stick of timber, comes upon the land of one wholly innocent, though without my fault, I ought first to ask his consent to let me take it away, offering to pay him any damages I may thereby do him; and if he then refuses, he is guilty of a concussion; and this from the necessity of the case; for as my property comes there without any fault in me, I ought to have remedy to recover it, and I am without remedy unless the law be so. Any usage as to fruit or trees falling, making fences, &c. may be an exception to this rule. ART. 3. By reentry on lands; and one's going on the lands of others to take his goods. § 1. If one, unlawfully, or without right take possession of my lands, I may peaceably enter upon them, and regain pessession. And I may do this whenever his possession had a tortious beginning, and has tortiously continued in him less than 20 years. But if he continues his possession, though wrongfully, more than 20 years, or mor than 5 years and dies and his heir enters, my remedy by entry is gone. 2. This remedy by entry does not take place in the cases of discontinuance and deforcement; because in these the original entry is lawful. But it takes place in abatement, intrusion, and disseisin; because in these cases the original entry is unlawful. An entry on a part in the same county in the name of all is an entry on the whole. But an entry in one county is no entry in another. So an entry on one disseisor is no entry on another. So if one disseisor convey with live10 Mod. 363. ry, or in a mode equivalent to livery, to two distinct grantees -Co. L. 252, or feoffees, there must be an entry on each. There must be a distinct act, to divest each distinct seisin vested in each one having seisin of a parcel of the land in severalty. er. CH. 2. Art. 3 $3. Where one who has the right of property rightfully enters, he has the juris et seisinæ conjunctio, and is complete ownBut an entry, without a right of entry, is of no avail. 4. I may go on A's land to take my goods &c. If my goods or cattle come on the lands of A or in his house, it is often material to know when I may lawfully enter or not without his consent, and take them away, and so lawfully recover my possession by my own act, and without a suit. $5. All the books agree, that if they come upon his land 5 Bac. Abr. or in his house by his wrong, I so enter upon his land or Bro. Tris. pl. into his house, the door being open, and take them away, with- 118, 186.out his consent; for he does the first wrong, of which he shall 4 D. & E. 365. -2 Roll. 565, not take advantage to retain my goods. pl. 9. may 174, 177. $ 6. On the same principle if he dig a ditch in his land, and 5 Bac. Abr. draw away my water from my mill, I may enter and throw the 176.-9 Co. 55. earth back into the ditch, and fill it up by such earth hove out; for I only repair the wrong he did to my injury. 7. So if A take my leather, and make shoes of it, I 5 Bac. Abr. may retake them; but not my timber annexed to his freehold. 173. This is the general distinction. See property by accession, See Post. ch. 76. proper cau 213.-5 Bac. 213.-5 Bac. § 8. If my fruit fall, or the wind blows my trees upon A's Bro. tres. pl. land, I may so enter and take away either. This is a rule of 173, 174.necessity. So if I lop my trees and the loppings fall on A's Bro. tres. pl. land, I may so enter and take them away, if I used tion to prevent their falling there; but not if such caution 173, 4. was not used, for the falling of the fruit or trees there could not be prevented, and the falling of the loppings in the first case was wholly without my fault. When also it is said, if A's cattle trespass on my land, I may lawfully drive them into his; Latch 119, this must be understood his land properly situated for their v. Tawdry. reception, and not into his cornfield or garden. 120, Mellen 9. If B take my cattle by wrong, and put them into A's Cro. El. 329, land by his consent, I may so enter and take them away, ThumbleChapman v. though it has been objected that I cannot do this, except they be thorp, there by A's tort; and the court said, that if "the deft's. beasts imperfectly cited 2 Esp. be taken from him by wrong, and are not out of his pos- 106. session by his delivery, he may justify the taking of them in any place in which he finds them;" but the case itself hardly supports this general principle stated by the court, for that stated the cattle come on the land of A by his consent; so he assented ignorantly, if not knowingly or carelessly, to B's unlawful taking. But Espinasse states the general principle above to be law; that is, whenever my goods are out of my possession by wrong, and not by my delivery, I may take them VOL. I. 18 Сн. 2. Art. 3. 2 Roll. Rep. 55. 5 Bac. Abr. 174-177.-2 Lutw. 1385.2 Roll. R. 55, 56, Higgins v. Andrews. Cro. El. 245, 246, Taylor v. Fisher. 5 Bac. Abr. 177.-Bro. Tres. Pl. 430. 5 Bac. Abr. 175. 2 Esp. 87, Hatton r. Coles. wherever I find them. The same principle is stated by Rolle and by Bacon, who says, that if my beasts be stolen and put into A's close, I may so enter and take them away, or if driven there by a stranger by A's consent, and for this last position cites the case of Chapman v. Thumblethorp, (above.) As to this position the reason is plain, it is stated and recognised by Bacon. But if my goods come upon A's land without his assent or privity, it is a question if I may enter to take them away, without his consent, at least before request and refusal ; perhaps after, if he have no reason to detain them, his refusal to let me take them away doing no damage to him, may make him consenting and privy to the wrong in putting them there; then the case is upon clear ground, he converts them to his use, if he refuses, without any reason, to let me take them away at my expense and so as to do him no injury. 10. If my goods come upon A's land or in his house (the door open,) and it does not appear how, I cannot enter to take them without his consent. Trespass for breaking the plt's. house, and taking a pike, &c. Plea, that before the entry one A owned them remaining in the plt's. house, and sold them to the deft. and he entered to take them away by the permission of the plt's. wife; plt. de ́murred and judgment for him to recover as to the entry into the house, but not as to the goods; for the court said, "the goods being in the plt's. house, and it not appearing how they came there," as by trespass or otherwise, the deft. could not enter of his own head; and the wife's license was invalid, (should have been pleaded as the husband's and his implied assent left to the jury to be presumed.) And where a parol license to enter upon one's land or into his house is sufficient, see License. 11. If I have a right to take my goods or cattle from land or house in a given time, as during my lease &c. and do not, it is my own folly, and I cannot afterwards enter to take them without his consent. the But the law hurts no man; hence, if tenant for life &c. die, his executor has a reasonable time to enter and take away goods. See Emblements, ch. 76. $ 12. If my goods or cattle come upon A's land, without any fault in him or me, I may enter and take them away as the owner of the property. Hence, if my beast be an estray on his land, and he seize it as such, I may enter and take it, and he may have an action on the case for the keeping, or retain till paid; that is, I am not a trespasser by my entry, unless he claims his lien, and I refuse to pay or satisfy it. 13. So I may enter to take them out of his land when both are in fault, as where we both ought to repair the fence, |