The facts stated in the motion presented to the judge on the circuit two questions. 1. Was the paper in question delivered by the defendants to the plaintiff to be carried away by him. 2. If not, did the defendants use more force than necessary to prevent it? But instead of submitting these questions to the jury, he instructed them, that if they should find this paper was peaceably in the plaintiff's hands, by the consent and delivery of the defendants, they had no right to use the violence proved, to recover it. This withdrew from the consideration of the jury the only questions of fact in the case, -the intention with which the paper was delivered to the plaintiff and the quantum of force employed by the defendants to prevent the abuse of that intention-and directed the attention of the jury to the manner of the plaintiff's obtaining the paper, instead of the object of its delivery by the defendants. By the common law, a man may justify a battery of a person, who endeavours wrongfully to dispossess him or his lands, or take away his goods for self-defence is a primary law of nature. But care must be taken not to exceed the bounds of mere defence, prevention or recovery, so as to become vindictive. 3 Bla. Comm. 4. 121. 1 Esp. Dig. 314. 1 Hawk. P. C. 130. Gales v. Lounsbury, 20 Johns. Rep. 427. Gregory & ux. v. Hill, 8 Term Rep. 299,
I advise a new trial.
New trial to be granted.