3603. Set-off. In an action on an appeal bond, in which defendants claim the right to offset the balance of a decree in a foreclosure suit, which they have purchased and now hold against J. R. D. and J. T. R., and eleven other defendants in that suit, upon the ground that J. R. D. and J. T. R. are the parties beneficially interested in the claim in suit in this action, and that they and the other eleven defendants in the decree sought to be offset are insolvent, it was held that the set-off can not be allowed; and further, that the matter set up in the answer is not a defense, legal or equitable, in any other sense than as being purely an offset, and, therefore, such matter can not be relied on as an equitable defense independent of and beyond the right of offset given by the Practice Act.27

§ 3604. Void contract. Whenever a contract or obligation under seal is void ab initio, the general plea of non est factum is proper. Where it is merely voidable, a special plea setting forth the special circumstances is necessary.28 On the plea of non est factum in an action on a bond, the present validity of the instrument is in issue, and every circumstance that goes to show that it is not the deed or contract of the party is provable.29

27 Duff v. Hobbs, 19 Cal. 646.

28 Bull. N. P. 172; Somers v. Skinner, 16 Mass. 348; Bottomley v. United States, 1 Story C. C. 135.

29 Speake v. United States, 9 Cranch, 28; Button-Hole, etc., Co. v. Burblack, 35 W. Va. 647.

The defendant answers to the complaint:

That the defendant has not committed the acts alleged, or any one of them [or, the defendant denies each and every allegation thereof].

The defendant answers to the complaint:

That the defendant did not strike nor wound the plaintiff.

§ 3607. Mitigation of damages. In an action for assault or for false imprisonment, evidence in mitigation of damages may be given without being pleaded.1 So evidence in mitigation may be given under a general denial.2 Insulting language may be shown in evidence in mitigation.3 And when the acts done or words spoken are a portion of a series of provocations, frequently repeated and continued down to the time of the assault, they may be proven. But no provocation, it would seem,

1 Travis v. Barger, 24 Barb. 414; Hays v. Berryman, 6 Bosw. 679; see, however, Foland v. Johnson, 16 Abb. Pr. 235.

2 Kneedler v. Sternberg, 10 How. Pr. 68; Dunlap v. Snyder, 17 Barb. 561; Mitchell v. Cody, 26 N. Y. Supp. 781.

3 Cushman v. Ryan, 1 Story, 91; Castner v. Sliker, 33 N. J. L. 95; Dolan v. Fagan, 63 Barb. 73: Corcoran v. Harran, 55 Wis. 120; Millard v. Truax, 84 Mich. 517; 22 Am. St. Rep. 705.

4 Stetlar v. Nellis, 60 Barb. 524; S. C., 42 How. Pr. 163.

amounting to less than a justification, will render the defendant liable to less than compensatory damages. But circumstances which amount to a complete justification are not admissible in evidence in mitigation unless pleaded. Aggravated circumstances need not be denied; they are not traversable." In an action for damages for an assault and battery, a libel published by the plaintiff and concerning the defendant does not constitute a counterclaim. The objection to such counterclaim is not waived by a failure to demur, and evidence to support it is inadmissible.8

§ 3608. Justification of assault. A previous threat, alone and unaccompanied by any immediate demonstration of force at the time of the renconter, will not justify or excuse an assault. But if there be at the time such a demonstration of force as would induce a well-founded belief in the mind of a reasonable person that his adversary was on the eve of executing his threat, and that his only means of escaping from death or great bodily injury was immediately to defend himself against the impending danger, the law of self-defense would justify him in the use of whatever force was necessary to avert the threatened peril.10 In an action for assault and battery, and false imprisonment, a special plea of justification, which states matters which occurred subsequent to the suit, is bad on demurrer.11

The defendant answers to the complaint:

That the plaintiff first assaulted the defendant, who thereupon necessarily committed the acts complained of, in selfdefense.

§ 3610. Justification of assault. One is justified in using violence in defending himself against violence, but he must not

5 Birchard v. Booth, 4 Wis. 67; Dresser v. Blair, 28 Mich. 501. 6 Watson v. Christie, 2 Bos. & Pul. 224.

7 Schnaderbeck v. Worth, 8 Abb. Pr. 37; Gilbert v. Rounds, 14 How. Pr. 46; Lane v. Gilbert, 9 id. 150.

8 Macdougall v. Maguire, 35 Cal. 274; 95 Am. Dec. 98.

9 People v. Scroggins, 37 Cal. 684.

11 Lockington v. Smith, Pet. C. C. 466.

An assault can not

exceed what is necessary to self-defense.12 be justified as made in self-defense, unless the danger of injury is so manifest and pressing that no other reasonable means of self-protection are immediately available.13

§ 3611. Mutual violence. Where violence is committed on both sides, there can not be a recovery by both parties in crossaction. The party who first recovers may plead that recovery in the suit against himself for the same affray. Hence, the party first attacked is not entitled to maintain an action, if he uses violence in repelling the assault exceeding what is required for self-defense.14

The defendant answers to the complaint, and alleges:

I. That the defendant did not strike or wound the plaintiff. II. That at the time mentioned in the complaint the plaintiff made an assault on one B., and was then and there beating him.

III. That thereupon the defendant, in attempting to preserve the peace, and prevent the plaintiff from further so doing. gently laid his hands upon the plaintiff, by which plaintiff suffered no injury.

IV. That the acts above mentioned are the same of which the plaintiff complains.

§ 3613. Preserving the peace.

A person who witnesses an affray may, during its continuance, and for the purpose of putting a stop thereto, lay hands upon those engaged in the affray.15

12 People v. Williams, 32 Cal. 280; People v. Campbell, 30 id. 312; Scribner v. Beach, 4 Den. 448; 47 Am. Dec. 265.

13 Keyes v. Devlin, 3 E. D. Smith, 518; Kent v. Cole, 84 Mich. 579; Higgins v. Minaghan, 78 Wis. 602; 23 Am. St. Rep. 428.

14 Cockroft v. Smith, Salk. 642; Zouch v. Thompson, 1 Ld. Raym. 177; Hannan v. Edes, 15 Mass. 347; Elliott v. Brown, 2 Wend. 497; 20 Am. Dec. 644.

15 Noden v. Johnson, 16 Q. B. 218; Timothy v. Simpson, 6 Carr. & P. 500. An officer who makes a legal arrest can not be liable for assault and battery where the evidence fails to show that he used unnecessary force. Baker v. Barton, 1 Col. App. 183.

§ 3614. Defense of possession of dwelling.

[TITLE.]

Form No. 850.

The defendant answers to the complaint:

I. [Deny beating and wounding.]

II. The defendant further alleges that at the time mentioned in the complaint the defendant was lawfully possessed of [here designate the dwelling].

III. That the defendant being so possessed thereof, the plaintiff was unlawfully therein, and [state unlawful acts he was doing].

IV. That thereupon the defendant, in defense of the possession of his dwelling, gently laid his hands upon the plaintiff in order to remove him, as he lawfully might.

V. That the acts above mentioned are the same of which the plaintiff complains.

One in the peaceable

§ 3615. Defense of house, land, etc. possession of house or lands, and having the right so to be in possession, will be justified in using all necessary force to defend his possession against any forcible attempt to expel him.16 The son of the owner, acting under the latter's authority, has the same right.17 A ticket of admission to a place of public amusement is held to be only a revocable license." Where one is peaceably in the house of another for a lawful purpose, as for the purpose of serving a subpoena, he may use such force as is necessary to overcome any force used to prevent it, being liable only for any excess of violence.19

18

16 Cory v. The People, 45 Barb. 262; Parsons v. Brown, 15 id. 590; Morgan v. Durfee, 69 Mo. 469; 33 Am. Rep. 508; Bliss v. Johnson, 73 N. Y. 529.

17 Tribble v. Frame, 7 J. J. Marsh. 599, 617; 23 Am. Dec. 439; see, also, Woodman v. Howell, 45 Ill. 367; 92 Am. Dec. 221. A wife has the right to fight in the necessary defense of her husband, the child in defense of his parent, the servant in defense of his master, and reciprocally. State v. Johnson, 75 N. C. 174. But if a father and his adversary are engaged in a fight on equal terms, the son's interference is not justifiable. Id.

18 Burton v. Scherpf, 1 Allen, 133; 79 Am. Dec. 717; McCrea v. Marsh, 12 Gray, 211; 71 Am. Dec. 745; Wood v. Ledbitter, 13 Mee. & W. 838.

19 Hagar v. Danforth, 20 Barb. 16; reversing S. C., & How. Pr.