APPEAL from the Circuit Court for Jefferson County.

The first cause of action alleged in the complaint is for trespass to the plaintiff’s close, with injuries to his fence,-etc., to his damage $500 ; and the second is for an assault and battery, committed at the same time, to his damage $500. The answer avers, in substance, that defendant entered peacefully and rightfully upon the land for the purpose of drawing away straw belonging to him, then piled thereon, and was violently assaulted by plaintiff and other persons with pitchfork and clubs, etc., before he himself had used any violence, and that every act then done by him was done in defense of his person and of his rights.

The evidence need not be stated. The court, at plaintiff’s request, gave the following instructions :

“ 1. The owner of personal property cannot take it from the peaceable though wrongful possession of another by violence on his person.”

“ 2. If plaintiff was in possession of the premises described in the complaint, and forbade the defendant entering, and the defendant persisted, and commenced taking down the fence, the plaintiff had the right to resist him with force, using no more force than was necessary to repel defendant; and if defendant injured plaintiff, or struck, or jerked him about or over the fence, the jury must find for the plaintiff.”

“3. If plaintiff was in possession of the premises in question at the time of the affray, and had forbidden or refused to allow defendant to go upon them, and defendant commenced taking down the fence for the purpose of entering the close; and if plaintiff, for the purpose of preventing defendant from entering, took hold of the rail of the fence, and defendant, while plaintiff was so holding fast the rails, took hold of the same and jerked plaintiff over the fence; then defendant was guilty of an assault and battery, and plaintiff is entitled to recover.”

“4. If plaintiff was in possession of the premises, and had forbidden defendant from entering upon the same, and defendant attempted to take down the fence of plaintiff, then plaintiff was justified in using sufficient force to prevent defendant from so doing; and if defendant struck plaintiff while he, plaintiff, was so resisting him, then defendant is guilty of committing an assault and battery upon the plaintiff.”

(The record states that the third and fourth instructions were given, as the law applicable only to the state of facts indicated in the second proposition.)

“5. If defendant tore down the fence of plaintiff, after being forbidden so to do, he was guilty of a trespass quare clausum, and plaintiff is entitled to recover.”

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