Whether Flanders went to the barn for a proper purpose or not, and was or was not authorized so to do, it appears from the case that he was passiiig out of the lane peaceably, when Woodward seized him by the collar and pulled him towards the main road.
For this there is nothing in the case that furnishes any justification, whether he actually struck the complainant or not.
In any aspect of the case, the respondent would not be justified in using force to expel him until he had refused to depart' on request. So far from that being the case, the complainant was then in the act of departing peaceably, and the violence used appears to have been wholly unnecessary and unjustifiable.
Under these i ircumstances the instructions were sufficiently favorable to the defen lant, as it was immaterial whether the complainant’s entry was unlai ful or not.
The instructi ms that the jury might consider and weigh the respondent’s motive in hiring this shed were correct. It appeared to have been but a very short time before the affray, and it might justly afford an inference that the respondent had ill blood towards the complainant or his father. At all events, it was proper that the evidence should be weighed by the jury on that point.
To the point that- a request to depart was necessary before a resort to force, are Green v. Goddard, 2 Salk. 641; Tullay v. Reed, 1 C. and P. 6; Scribner v. Beach, 4 Denio 448; 1 Selw. N. P. 26; Ham. N. P. 143. So it is considered in State v. Elliot, 11 N. H. 544.
Exceptions overruled.