of pursuing the defendant's deer in his park, or rabbits in his warren, or poultry within his own grounds, this will justify the killing without proof of any higher necessity.1 (a)

§ 631. Right of way. Where the issue is upon a right of way,

the defendant must prove either a deed of grant to him, or those under whom he claims, or an exclusive and uninterrupted enjoyment for at least twenty years.2 If the issue is upon a right to dig and take gravel or other material for necessary repairs, the defendant must allege and prove that the repairs were necessary, and that the materials were used or in the process of being used for that purpose.3

§ 632. Same subject. Easement. If a right of way, or any other easement, is pleaded in justification of a trespass on lands, whether it be in the defendant himself, or in another under whose command he acted, the plaintiff cannot controvert this right by evidence under the general replication of de injuria sua, but must specifically traverse the right as claimed. And where a right of way is claimed, under a non-existing grant from a person who was seised in fee, and the plaintiff traverses the grant, he cannot, under this issue, dispute the seisin in fee for the purpose of rebutting the presumption of a grant, for it is impliedly admitted by the replication.5

§ 633. Reply to justification. Wherever the defendant pleads matter of fact in justification, as distinguished from mere matter of record, title, or authority, it may be traversed by the plaintiff, by the general replication de injuria sua absque tali causa. This replication being a traverse of the whole plea, the plaintiff is at

Barrington v. Turner, 3 Lev. 28; Wadhurst v. Damme, Cro. Jac. 45; Janson v.

Brown, 1 Campb. 41; Vere v. Cawdor, 11 East, 568, 569.

2 Hewlins v. Shippam, 5 B. & B. 221; Cocker v. Cowper, 1 Cr. M. & R. 418. See supra, tit. Prescription, §§ 537-546.

3 Peppin v. Shakespeare, 6 T. R. 748.

4 Cogate's Case, 8 Co. 66. And see Lowe v. Govett, 3 B. & Ad. 863.

5 Cowlishaw v. Cheslyn, 1 Cr. & J. 48.

• See Gould on Pleading, ch. vii. §§ 26–30.

(a) The evidence must show that there was an apparent necessity for the defence, honestly believed to be real, and then the acts of defence must be in themselves reasonable. The consequences of the proposed act to the aggressor should be considered in connection with the consequences of non-action to the party defending, whether the defence be made in favor

of person or property; and in case of defence of domestic animals from the attacks of other animals, the relative value of the animals may be a proper circumstance for the jury to consider in arriving at a conclusion whether the defence was a reasonable one under the circumstances. Anderson v. Smith, 7 Ill. App. 354; Cooley on Torts, § 346.

liberty under it to adduce any evidence disproving the facts alleged in the plea. But he cannot go into any evidence of new matter which shows that the defendant's allegation, though true, does not justify the trespass. Thus, in an action for trespass and false imprisonment, if the defendant justifies the commitment as a magistrate, for an offence which is bailable, to which the plaintiff replies de injuria, he cannot, under this replication, avoid the justification by evidence of a tender and refusal of bail.1 So, if the defendant justifies an assault and battery by the plea of son assault demesne, and the plaintiff replies de injuria, he will not be permitted to show that the defendant, having entered the plaintiff's house, misbehaved there.2 Thus also, in trespass by a tenant, against his landlord, for turning him out of possession, where the defendant pleaded a fact by which the lease was forfeited, to which the plaintiff replied de injuria, it was held, after proof of the fact of forfeiture, that the plaintiff under this replication could not prove the acceptance of rent by the defendant as a waiver of the forfeiture, for he should have replied it specially, in avoidance of the plea. The general rule is, that all matters which confess and avoid, whether alleged by the plaintiff or defendant, must be specially pleaded; otherwise, the proof of them is not admissible.1

§ 634. Same subject. The same principle applies to all cases where the defendant justifies the trespass by a plea answering the gist of the action, and the plaintiff would avoid the plea by proving that the defendant exceeded the authority under which he acted, and thus became a trespasser ab initio. In such cases the plaintiff cannot show the excess, under a general replication; but must distinctly allege it in a special replication, in the nature of a new assignment.5 (a) Thus, in trespass for taking and impounding the plaintiff's cattle, where the defendant justifies for that he took them damage-feasant, the plaintiff will not be permitted,

1 Sayre v. E. of Rochford, 2 W. Bl. 1165, 1169, per De Grey, C. J. 2 King v. Phippard, Carth. 280.

8 Warrall v. Clare, 2 Campb. 628.

42 Stark. Ev. 825; Hetfield v. Central Railw., 5 Dutch. 571.

5 Gould on Pleading, ch. vi. part 2, § 110; 1 Chitty on Pleading, pp. 512, 513, 542-552; Monprivatt v. Smith, 2 Campb. 175; Warrall v. Clare, Id. 629.

(a) This, of course, does not apply to cases where the officer has levied on the property of a stranger. Lincoln . McLaughlin, 74 Ill. 11. The courts in the United States seem to consider it proper to make a new assignment, as stated in

the text, even where the common-law rules of pleading have become much relaxed, unless it is agreed by the parties to dispense with such plea. Lincoln v. McLaughlin, supra; Camp v. Ganley, 6 Ill. App. 499.

under a general replication, to prove that the defendant abused one of the beasts, so that it died, whereby he became a trespasser ab initio; for he should have specially replied the excess.1 So, in trespass for breaking and entering the plaintiff's house, and expelling him from it, where the defendant justified the breaking and entering, under a writ of fieri facias, which, it was held, covered the expulsion, it was also held, that the plaintiff could not be permitted to rely on the expulsion as an excess, without specially replying it.2 The replication of excess admits the justification as alleged, and precludes the plaintiff from offering any evidence to disprove it.3

§ 635. New assignment. If a justification is pleaded, and thereupon the plaintiff makes a new assignment, to which the defendant pleads not guilty, if the plaintiff proves only one trespass, he must also clearly show that the trespass proved is a different one from that mentioned in the plea; for if the circumstances are alike, the jury will be instructed to presume it to be the same.1

§ 635 a. Damages. The rule of damages in this action has already been discussed in treating the subject of Damages ;5(a) where we have seen that the declaration involves not only the principal transaction, but all its attendant circumstances, and its natural and injurious results; all of which are put in issue by the plea of not guilty. Upon this principle it has been held, in trespass quare clausum fregit, where the defendant's sheep trespassed on the plaintiff's close, and commingled with his own, that evidence of a deadly disease, communicated by the defendant's flock to the plaintiff's, was admissible, as showing part of the damages which the plaintiff was entitled to recover. And the knowledge of the defendant was held immaterial to be proved, unless to increase the damages. And generally, where the plain

1 Gates v. Bayley, 2 Wils. 313; Gargrave v. Smith, 1 Salk. 221; Bull. N. P. 81; Moore v. Taylor, 5 Taunt. 69.

2 Taylor v. Cole, 3 T. R. 292, 296.

3 Pickering v. Rudd, 1 Stark. 56; 4 Campb. 219. Darby v. Smith, 2 M. & Rob. 184.

6 Barnum ". Vandusen, 16 Conn. 200.

(a) It is not necessary that damages which naturally and necessarily result from the injury complained of, should be specially averred, in order to allow the introduction of evidence of them; e. g., when timber has been cut off land, and the action is trespass quare clausum, the

5 See supra, §§ 254, 256, 266, 268.

measure of damages is the difference between the value of the land before it was deprived of the timber, and its value afterwards; and evidence may be given of these values. Argotsinger v. Vines, 82 N. Y. 308; Jutte v. Hughes, 67 N. Y. 267.

tiff has been deprived of the use of his property for a time, by the act complained of, the value of the use, during such period, is to be taken into the estimation of damages;1 the return of the property to the owner's possession, and his acceptance of it, being available to the wrong-doer only in mitigation of damages, but not in bar of the action.2 So, if the value of the property has been lawfully applied to the owner's use, this, as has been seen in another place, may be shown to reduce the damages. (a)

1 Warfield v. Walter, 11 G. & J. 80; Hammatt v. Russ, 4 Shepl. 171. 2 Hanmer v. Wilsey, 17 Wend. 91; Coffin v. Field, 7 Cush. 360.

3 See supra, §§ 272, 276. It is agreed, that, where the property has gone to the plaintiff's use, by his consent, either express or implied, this will avail to reduce his damages. But several of the cases seem to turn on the question, whether the property was so applied by the wrong-doer himself, or by a mere stranger. And upon this distinction it has been held, where property was taken upon an illegal process against the owner, for which taking an action of trespass was commenced against the creditor who directed it, and afterwards a legal process was sued out, under which the same property, which had not gone back into the owner's possession, was seized and sold for his debt, that the defendant was not at liberty to prove this fact in mitigation of damages, it being a mere act of his own. Hanmer v. Wilsey, 17 Wend. 91. The like point, upon the same distinction, was again decided in Otis v. Jones, 21 Wend. 394. So, where one wrongfully took goods under a belief of right so to do, and they were afterwards taken out of his hands by distress for rent due from the owner to his landlord, it was held, in an action of trespass brought by the owner against the tortfeasor, that the latter might show this fact in mitigation of damages, because of his belief of his right to take the goods. Higgins v. Whitney, 24 Wend. 379. And, still later, in an action against a sheriff for an unauthorized seizure of goods under a fieri facias, he was permitted to show, in mitigation of damages, that the goods were afterwards taken from his custody, and lawfully sold on a distress warrant issued against the plaintiff in favor of a third person; the sale being independent of any agency of the defendant. Sherry v. Schuyler, 2 Hill (N. Y.), 204.

Other courts, however, have held, that, wherever the property has been applied to the plaintiff's use, this may be shown in mitigation of damages. See Irish v. Cloyes, 8 Vt. 30, 33.

But this rule will generally be found to have been applied only in cases of illegal seizures or sales of goods by officers, who have subsequently either regularly sold the goods, or applied the proceeds of the irregular sale in satisfaction of final process against the owner. Such were, in substance, the cases of Farrar v. Barton, 5 Mass. 395; Prescott v. Wright, 6 Mass. 20; Pierce v. Benjamin, 14 Pick. 356; Daggett v. Adams, 1 Greenl. 198; Board v. Head, 3 Dana, 489, 494; Stewart v. Martin, 16 Vt. 397. Even where the defendant was a mere trespasser without pretence of title, he has been permitted to show, in mitigation of damages, that the goods had been duly taken out of his hands and sold by an officer, by virtue of a legal precept against the plaintiff. Squire v. Hollenbeck, 9 Pick. 551; Kaley v. Shed, 10 Met. 317.

(a) In trespass for assault and battery, if the person commit violence at a time when he is smarting under immediate provocation, this may be proved in mitigation of damages. Tyson v. Booth, 100 Mass. 260; Sedgwick, Dam. 563. And where the acts done or words spoken some time previous to the assault, are part of a series of provocations, repeated and continued up to the time of the assault, they may all be received as part of the res gesta. Štet

lar v. Nellis, 60 Barb. (N. Y.) 524; Davis v. Franke, 33 Gratt. (Va.) 413.

It seems that punitive damages are allowed in trespass, where the act is malicious or reckless. Becker v. Dupree, 75 Ill. 167; Huftalin v. Misner, 70 Ill. 55.

In mitigation of such damages, acts of the plaintiff which tend to provoke such trespasses may be given in evidence. Weston v. Gravlin, 49 Vt. 507; Prentiss v. Smith, 58 Me. 427; Wilson v. Young, 31 Wis. 574.

Perhaps the true principle will be found to be this: that, where the appropriation of the goods or their value to the plaintiff's use was by his consent, expressed or implied, it goes in reduction of the damages; it being in the nature of a return and acceptance of the goods; and that such consent may always be implied where the goods have been legally seized and sold under process against him. If the appropriation was made in any other manner, his consent may be shown by any evidence of a subsequent ratification; such as claiming the benefit of it, if it were delivered in payment to his own creditor, or the like.

In trespass de bonis asportatis, if the jury find for the plaintiff, the goods being still out of his possession, they must award him the value of the goods; they cannot award damages for the taking alone, on the ground that the goods are still the property of the plaintiff. Woolley v. Carter, 2 Halst. 85. But if the plaintiff has received the goods again, it is otherwise. Merrill v. How, 11 Shepl. 196.