aggressor, and is responsible for any results | ant is any case in which the right of selfthat may result from such aggression.

"It is not the law that a man can make himself the judge of his own situation. Whether he was in danger or had reasonable ground for believing that he was is a matter for you to determine, whether the circumstances were such as to satisfy you that he was in danger, or had a right to think himself so, and whether he was, under the circumstances shown, justified in using the force that he did use, and, if he had the right to use force, was this force that he used necessary to protect himself."

This instruction viewed as a comprehensive definition is faulty in two respects: First, in that it extends the right to take life to cases in which the defendant's apprehension is that he may be harmed, where as such right is limited to apprehension of serious harm. This error was prejudicial, however, only to the state.

defense set up by the testimony was in the alternative, so that such right would be of equal avail to the defendant whether the danger and necessity upon which he relied for his justification were actually established to the satisfaction of the jury, or whether they were found by the jury to have been reasonably apprehended by the defendant, although not really existant in point of fact. It is, however, equally clear that the omission of such latter instruction would be harmless to the defendant where the case made by him was not susceptible of being submitted to the jury in the alternative under the proofs; for the right of the defendant to have his defense thus submitted to the jury depends wholly upon the state of the testimony, and hence arises only when the testimony is of such a character that, if the existence of the actual danger or necessity testified to by the defendant be found against him, there still remains some aspect of the case made by the proofs that would warrant the submission to the jury of the further question whether the defendant's conduct might not be justified by the reasonableness of his apprehensions, even though the danger or necessity set up by his proofs did not in fact exist. We are speaking now of cases like the present, in which the defendant's act of homicide, if the facts to which he testified be believed, was clearly justified.

The other respect in which the instruction is incorrect is that it draws a distinc tion between the existence of the right of self-defense and the extent to which such right may lawfully be pursued, saying of the former that it exists whenever the defendant has reasonable grounds for believing that his life or body are endangered, and of the latter that, if a man "defend himself beyond what is necessary to protect himself, he loses the right of self-defense." If the word "necessary" in the language last quoted be qualified as it was in the preceding There are, of course, cases of trifling asclause by the words "or reasonably appears saults where the primary, and indeed, the to him to be so," the error complained of only, question, is whether a reasonable apwould be cured. Abstractly considered, how- prehension of danger was justified, but ever, the instruction in so far as it limit- where, as in the case now before us, the ased the extent of the right of self-protection sault upon the defendant, if made, was made to what was actually necessary was an erwith a deadly weapon accompanied by roneous statement of the law. The correct threats against the defendant's life, the pri rule is that stated by Chief Justice Gum- mary question for the jury is whether such mere in State v. Bonofiglio, 67 N. J. Law, murderous assault took place, and, this fact 245, 52 Atl. 714, 54 Atl. 99, 91 Am. St. Rep. being resolved adversely to the defendant, 423, in which the existence of the right to there is no residuum of testimony or circumdefend oneself and the extent to which it stance to support a belief alien to such fact, may go are each made to depend upon what and hence no occasion for the submission to actually is or what reasonably appears to the jury of the reasonableness of the defendbe the necessity. "A man," he says, "may ant's belief in the imminence of his danger, protect himself, even to the extent of tak- notwithstanding that the situation describing the life of his adversary when that acted by him did not in fact exist. is or reasonably appears to be necessary in order to preserve his own life or to protect himself from serious bodily harm." Under the rule thus laid down, the jury is to test the defendant's justification, not only in the light of the actual situation as it is disclosed upon the trial, but also in the light of what the situation may reasonably have appeared to be to the defendant.

The court's instruction, therefore as a general definition of the right of self-defense, was erroneous. Whether it was injurious to the defendant in this particular case is another question. From the nature of the error in the court's definition, it is clear that such error would be injurious to the defend71 A.-43

In fine, where there are no grounds or circumstances going to the reasonableness of the defendant's belief, apart from the grounds and circumstances that go to prove the actual existence of the danger or necessity that confronted the defendant, if his testimony be believed, the failure to submit to the jury the reasonableness of the defendant's belief is not an error by which he was | injured.

This was the ratio decidendi of the case of State v. Jones, 71 N. J. Law, 543, 60 Atl. 396, recently in this court. In delivering the opinion in that case the Chief Justice said: "The case that was before them [the jury] did not present for their determination the

question of the right of a man to take life under circumstances where it was seemingly, but not actually, necessary, to do so to preserve his own life or to save himself from grave bodily harm. If the story told by the defendant was true, the necessity of doing what he did for his own protection was absolutely beyond question, and it was with this story that the trial judge was dealing in this part of his instruction to the jury, and not with a mere abstraction. He was charging the law of the case."

was not loaded or that it was a toy pistol, or that he was handling it only in sport, or any other circumstance that raised the question whether the situation was really, as the defendant had testified, or only seemed to him to be so, the defendant would have been entitled to have the jury charged that, even though they found against him on the actual necessity of the defense he had made, they should still find for him if they believed that such necessity, although nonexistent in fact, had reasonably appeared to him to be real. No such circumstances, however, appearing in the testimony, no such charge was requir

ered correctly the matters to be submitted to the jury under the proofs. The charge, in so far as it was incorrect, touched a matter that could not under the proofs have been submitted to the jury; hence an error therein did not injure the defendant, and should not lead to the reversal of the judgment entered against him in the court below.

Finding in the charge of the trial judge no error that requires reversal, the judgment brought up by this writ of error is affirmed.

(75 N. J. E. 270) GOODWIN . MAYOR, ETC., OF CITY OF MILLVILLE.

Dec. 3, 1908.)

MUNICIPAL CORPORATIONS (§ 513*)-IMPROVE-
MENTS-ASSESSMENTS INJUNCTION.

That the present case is of this sort will appear from a brief recital of the cases made, respectively, by the state and by the defend-ed from the court. The charge as made covant. The state's case was that the defendant remained at the window of a barroom, looking out through an opening in the curtains until Pellechio passed along in front of the window, when the defendant exclaimed, "Here he comes," and started after him, "sneaking up" behind him until close enough to strike him in the back of the head with an axe that he carried concealed in a paper covering. Pellechio's skull was fractured by a blow from behind. The defendant's version of the same affair was that Pellechio met him in the street, and instantly and without provocation assaulted him, and, with threats against his life, seized him by the throat and forced him to the ground, so that he dropped the axe he was carrying, and that, as he was (Court of Errors and Appeals of New Jersey. about to pick up his axe, he saw Pellechio with his hand on his revolver, "going for" him. His testimony was: "He was going to get me." "He was going to shoot me." "He was so mad he was going to shoot me." At this precise juncture, according to the defendant's testimony, he recovered his axe, and struck Pellechio with it. Two utterly irreconcilable versions were thus presented to the jury for its determination, according to one of which the defendant had made an unprovoked and murderous assault upon Pellechio, according to the other of which Pellechio had made an unprovoked and murderous attack upon the defendant. Both could not be true, and the verdict shows conclusively which the jury accepted, and which they rejected, but neither version presented any circumstances that was at once consistent with, the nonexistence of the necessity testified to by the defendant, and yet afforded a reasonable basis for his belief therein. The existence and the imminence of the defendant's danger having been left to the jury as one not only of fact, but also as one that the defendant may have had reasonable grounds for believing, the succeeding statement, which is the one now challenged, though abstractly erroneous, was not in a legal sense injurious to the defendant.

If, instead of the direct conflict between the two versions of the affair, the state's contention had been that the defendant had magnified his danger, that Pellechio's revolver

of Chancery has no jurisdiction over assessIn the absence of special equities, the Court ments made in the course of municipal improvements, and will not interfere by injunction to restrain the collection of such assessments merely because the complaining party, by his own laches, lost his remedy at law.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1196, 1198; Dec. Dig. § 513.*]

(Syllabus by the Court.)

Appeal from Court of Chancery.

Action by Eugene B. Goodwin against the Mayor and Common Council of the City of Millville. Decree for complainant, and defendant appeals. Reversed, and bill dismissed.

Louis H. Miller, for appellant. French & Richards, for respondent.

TRENCHARD, J. The defendant, the city of Millville, caused to be made by commissioners an assessment of benefits against the owners of lands fronting on streets where it had laid its system of sewers. On June 1, 1906, the assessment was confirmed by the city council. Among those thus assessed were Thomas S. Simmons and Eugene B. Goodwin. Simmons promptly prosecuted a writ of certiorari against the city, and the Supreme Court by its judgment of November 19, 1907, set aside the assessment against the lands of the prosecutor brought

Supreme Court for a writ of certiorari, it would have been granted, and such relief accorded him as was justified by the state of the case. This he neglected to do. He saw fit, with full knowledge of the errors and irregularities of the assessment, and of the entire situation, to speculate as to the form of relief which the Supreme Court would in its discretion grant in the Simmons Case from the record then before it. In view of the fact that Goodwin delayed applying for a writ of certiorari for more than 18 months after the confirmation of the assessment by city council, the Supreme Court was undoubtedly justified in denying him the writ on the ground of laches. Especially is this so in view of the legislative policy declared by P. L. 1907, p. 109, in which it is provided that no writ of certiorari shall thereafter be allowed to review any such assessment unless application therefor shall be made within 60 days after such assessment shall have been confirmed by a court of competent jurisdiction.

up by the writ, and appointed commissioners, win had promptly made application to the to make a new assessment upon his property. As will appear by the opinion filed in that cause (Simmons v. Mayor, etc., of City of Millville [N. J. Sup.] 66 Atl. 895), the assessment against Simmons was set aside because certain properties along the line of the sewer were not assessed for benefits, and since substantially the whole cost of the work, so far as the statute permitted its assessment, was assessed upon certain properties, including the prosecutor's, to the exclusion of others, the result was necessarily injurious to him. The court also found that under the statute other properties, not along the line of the sewer, but which were within the territorial zone of benefits, should have been assessed, and that the assessment for that reason, also, was not made in accordance with the statute. On December 9, 1907, the complainant, Goodwin, who owns property along the line of the same sewer and whose property was assessed under the same assessment as that of Simmons, applied to the Supreme Court for a writ of certiorari to review the assessment against his property. The Supreme Court denied him the writ upon the ground of laches. On December 17, 1907, the complainant filed his bill to procure an injunction against the collection of any of the assessments until a proper reassessment is made. Upon the hearing on bill and affidavits, the learned Vice Chancellor awarded a preliminary injunction restraining the defendant, the city of Millville, and its officers, from collecting or accepting payments of any of the assessments, "until an assessment shall be made upon the properties liable to assessment, but omitted therefrom and a reassessment made upon other properties to conform thereto according to

law."

This appeal raises the question of the propriety of such injunction. The remedy for an irregularity or error in the imposi

tion of taxes or assessments is by a writ of certiorari. To warrant the interference of a court of equity, there must be some peculiar ground of equity jurisdiction. Jersey City v. Lembeck, 31 N. J. Eq. 255; Hoboken Land & Improvement Co. v. Hoboken, 31 N. J. Eq. 461, 463. In the present case the Vice Chancellor was of the opinion that the complainant as a taxpayer, irrespective of the assessment against his property, was entitled to restrain the city from enforcing its illegal assessments, the enforcement of which would operate to burden the city with a charge that the statute requires individual properties to bear. This equitable relief seems to proceed upon the theory that the complainant's remedy was not at law. To this we do not agree. In Jersey City v. Lembeck, 31 N. J. Eq. 255, it was pointed out that the jurisdiction of the Supreme Court to review and correct the errors or irregularities of such assessments is exclusive. It

As was said in Am. Dock & Imp. Co. v. Trustees of Public Schools, 35 N. J. Eq. 181, 258, one of the principles which enters into the consideration of the matter presented by this appeal is that courts interfere with great reluctance with the collection of public revenues. Jersey City v. Lembeck, 31 N. J. Eq. 255, is an illustrative precedent. The city had laid an assessment on the complainant's lands, which, by the city charter, was an incumbrance. The assessment was invalid. No suit was pending in which the validity of the incumbrance could be tested. The complainant filed a bill under the stat ute against the city to settle the title to the land and determine the validity of the in

cumbrance. This court denied relief on the ground that the complainant might have had relief by a writ of certiorari, which he had

lost by his own laches. To justify resort to a court of equity to stay the collection of public revenues, the party must make a case strictly within the bounds of equity jurisdiction—an injury otherwise not remediable and he must seek and prosecute his remedy with promptitude. In the present case, as we have seen, the complainant had his remedy at law which he lost by his own

laches.

He cannot, therefore, resort to a court of equity on that ground.

Nor can the interference of the court of equity be justified upon the ground of the prevention of a multiplicity of suits, as was suggested at the argument. The bill appears to have been filed by the complainant in his own behalf only, and there is no indication that any other person is threatening suit. Moreover, any other taxpayer or landowner affected is presumably in the same position as the complainant with respect to laches, and for that reason would not be en

The decree under review should be revers-17. WILLS (§ 161*) - UNDUE INFLUENCE-INed, and the complainant's bill dismissed, with VALIDITY IN PART. costs.

Where it is impossible to determine to what extent specific legacies have been tainted by undue influence, the whole will, if at all, must be set aside on the ground of undue influence.

[Ed. Note.-For other cases, see Wills, Cent. Jan. 2, Dig. § 374; Dec. Dig. § 161.*]

about 80 years of age in 1900. Axtell had been her sole legal adviser since January, 1898, and had acted for her in some matters before that time, beginning at least as early as 1888. He had known her well for many years, and intimately since 1883. She appears to have had great confidence in his judgment and integrity. He claims that, acting under instructions from her, he prepared the rough draft of the will executed in 1900, and that of the codicil executed in 1904. Each draft was copied by hand, and prepared for execution by a young man named Griffith, who was employed by Axtell in a clerical

[Ed. Note.-For other cases, see Wills, Cent. capacity in 1900, and specially employed for Dig. 428; Dec. Dig. § 157.*]