that there was not sufficient evidence to go to the jury.

In Deschenes v. Langlois (1906) Rap. Jud. Quebec 15 B. R. 388, an action against an attesting witness of certain promissory notes by one who had discounted them in reliance upon his attestation, the court affirmed a decision of the court below in favor of the defendant, notwithstanding the testimony of an expert, based on a systematic comparison of the manner of formation of the letters, that the signature on the notes was genuine. The appellate court, from its own comparison of the disputed signature with a genuine signature, was of the opinion that the signature on the note was not that of the defendant.

In Banque Nationale v. Tremblay (1913) Rap. Jud. Quebec 46 C. S. 304, an action upon a promissory note the execution of which was denied under oath by the maker, but was sworn to by the indorser, it was held that proof by comparison of handwritings made by a single expert was not sufficient to establish a preponderance of evidence in favor of the plaintiff. Observations upon the foregoing cases.

In a few of the above cases, where decisions of the lower courts were affirmed on conflicting evidence as to the genuineness of documents, it did not appear that the disputed documents. were before the appellate court, and the conflict was in the testimony of witnesses. In a few only of the cases which involved the inspection and consideration of disputed documents did the appellate court decline to consider them. Therefore, as the result of the examination and comparison of the cases in which disputed documents

Master and servant

are in the record on appeal, while it may seem difficult to draw any safe rule with respect to the extent to which an appellate court can properly go in deciding for itself as to the genuineness of disputed documents which are in the record and open to its inspection, it is at least certain that in a majority of these cases the court did actually examine and consider the documents in dispute.

That the appellate court in such instances did not regard its inspection of the documents as extrajudicial or merely incidental, or for any reason ineffectual as evidence affecting its determination of the case, is clearly shown from the fact that in fully half of the instances in which such documents were inspected and considered the court, after making such inspection and reviewing the other evidence in the case, reached a decision contrary to the verdict of the jury or the finding of the lower court, and reversed the judgment thereon. Also in most of the other cases where such documents were in the record, but in which the decision of the lower court was affirmed, the question was determined after inspecting and considering the documents.

In the light of the precedents here reviewed it is, perhaps, reasonable to conclude that the strict rule against a review of conflicting evidence by an appellate court is more apt to be relaxed where, on the issue of the genuineness of disputed documents, the court has the documents before it in the record, with such other explanatory documentary data as may be needed for an independent judgment on the question. E. S. O.

conflicting and there is some evi

Appealrefusal of nonsuit-error.

dence tending to support respondent's complaint. A review of the evidence at this time is unnecessary. We are satisfied that the court committed no error in denying the motion for nonsuit and the motion for a for a directed verdict.

The plaintiff requested the following instruction: "The court instructs the jury that, if it appears from the evidence that the Butts were occupying the house where the combat in controversy in this case took place, without any agreement to pay rent and as a gratuity, and so long as they were employed by the defendant William Potter in working in and about his ranch, then they would not be tenants, and would have no right to take plaintiff in as a lodger or boarder against the consent of said Potter, and the said Potter would have the right at any time to demand that plaintiff leave said premises, and if plaintiff refused or did not do so, said Potter would have the right to remove said plaintiff from said premises, using such force as was reasonably necessary so to do."

The court refused to give the instruction as requested, but modified it by inserting after the words, "lodger or boarder," the words, "after notice from said Potter not to do so," and by striking out the word "refused" and inserting the words, "not complied with with reasonable promptness under the facts in evidence." The inclusion of the words, "after notice from said Potter not to do so," was error. The occupation of a master's premises by his servant is in law the occupation of the master; the servant has no hostile possession, no independent right to possession; his possession is the master's possession. Bowman v. Bradley, 151 Pa. 351, 17 L.R.A. 213, 24 Atl. 1062; Lane v. Au Sable Electric Co. 181 Mich. 26, 147 N. W. 546, Ann. Cas. 1916C, 6 A.L.R.-34.

Master and servantpossession by servant.

1108; Bertie v. Beaumont, 16 East, 34, 104 Eng. Reprint, 1001; De Briar v. Minturn, 1 Cal. 450; School Dist. v. Batsche, 106 Mich. 330, 29 L.R.A. 576, 64 N. W. 196; Davis v. Williams, 130 Ala. 530, 54 L.R.A. 749, 89 Am. St. Rep. 55, 30 So. 488; Chatard v. O'Donovan, 80 Ind. 20, 41 Am. Rep. 782; Homan v. Redick, 97 Neb. 299, L.R.A.1915C, 601, 149 N. W. 782; Mead v. Owen, 80 Vt. 273, 12 L.R.A. (N.S.) 655, 67 Atl. 722, 13 Ann. Cas. 231; 16 R. C. L. p. 579, § 54; Bourland v. McKnight, 4 L.R.A. (N.S.) 698, and note (79 Ark. 427, 96 S. W. 179); Bookhout v. Vuich, 101 Wash. 511, 172 Pac. 740; Mackenzie v. Minis, 132 Ga. 323, 23 L.R.A. (N.S.) 1003, 63 S. E. 900, 16 Ann. Cas. 723.

Potter was under no obligation to notify Butts, who was occupying the house as his servant or employee, not to receive respondent upon the premises. A servant has no right to bring anyone in

to his employer's Invitee of house to live with

him without the master's consent, and it requires no notice from the employer to make this prohibition upon the servant effective. Tucker v. Burt, 152 Mich. 68, 17 L.R.A. (N.S.) 510, 115 N. W. 722.

The modification of the instruction by striking out the word "refused" and inserting the clause, "not complied with with reasonable promptness under the facts in evidence," was likewise erroneous.

use

Assault

trespasser.

No other inference can be drawn from the record than that the occupancy of Butts was that of a servant, and that respondent was a trespasser. In order to justify the of force force in ejecting a trespass- ejection of er from premises where he entered peaceably, it must be shown that he was first requested to depart, and either that he refused to or did not comply with the request after being allowed a reasonable time to do so. 2 R. C. L. 557, § 36; 5 C. J. 634, § 29; 3 Cyc. 1045; Emmons v. Quade, 176 Mo. 22, 75 S. W. 103; Parrish v. State, 32 Tex.

Crim. Rep. 583, 25 S. W. 420; Rex v. Howard, 1 Haw. 40; Redfield v. Redfield, 75 Iowa, 435, 39 N. W. 688; Breitenbach v. Trowbridge, 64 Mich. 393, 8 Am. St. Rep. 829, 31 N. W. 402.

There is, however, evidence in the record sufficient to have warranted the jury in finding that respondent refused to leave at all. Appellant was therefore entitled to the instruction that, if respondent refused to leave upon demand, appellant had a right to eject him, using no more force than was reasonably

-right of owner.

necessary.

Trespassejection-force.

When a trespasser refuses to leave the premises, or defiantly stands his ground armed with a deadly weapon, the occupant may at once resort to physical force to remove him. State v. Davis, 80 N. C. 351, 30 Am. Rep. 86; Shain v. Markham, 4 J. J. Marsh, 578, 20 Am. Dec. 232; Morgan v. Durfee, 69 Mo. 469, 33 Am. Rep. 508; Watson v. Hastings, 1 Penn. (Del.) 47, 39 Atl. 587; Woodman v. Howell, 45 Ill. 367, 92 Am. Dec. 221; Breiten

bach v. Trowbridge, supra; Redfield v. Redfield, 75 Iowa, 435, 39 N. W. 688. This, of course, is subject to the qualification of reasonableness; and that there can be no killing of the trespasser unless necessary in self-defense or to prevent a felony. State v. Dixon, 7 Idaho, 518, 63 Pac. 801.

The court did not err in refusing to give the instruction set forth in the fourth assignment of error. Appellant cites no authorities and none have been found which go to the extent of holding that, if a private person arrests another for a criminal offense committed in his presence, and there

release-effect.

after releases him Arrestfrom custody upon an agreement that, if the latter should not be turned over to a peace officer, he would not return to the former's premises, such release would alone preclude a recovery for any assault or battery committed in making the arrest.

The judgment is reversed, and a new trial granted. Costs are awarded to appellants.

Morgan and Rice, JJ., concur.

A search has failed to disclose any case other than the reported case (TIPSWORD V. POTTER, ante, 527) passing upon the right of a master to remove one upon the master's premises under license from a servant. It seems clear, as held in that case, that a servant cannot authorize a third person to go or be on the master's premises so as to preclude the master from removing him. This being true, the general rule seems applicable that, after a request to leave and refusal to

comply, the master may remove such person and to effect such removal may use force. The force that may be used is, in some cases, stated to be such force as is necessary to effect the removal, and, in other cases, such force as is reasonably necessary. Whatever expression is used, the courts agree that the owner is not limited to the precise degree of force necessary to effect the removal, but may use such force as may reasonably appear to be necessary. W. A. E.