The defendant seems to contend that the instruction was erroneous, in that it made the justification of the defendant's act to depend upon reasonable apprehension of "bodily harm,” instead of "serious bodily harm," essential to homicide cases. But we find it unnecessary to deal with that contention further than to say that if erroneous the error was prejudicial only to the state and not to the defendant, and, of course, will not lead to a reversal. State v. Mellillo, 77 N. J. L. 505, 509. We also think that it was not erroneous for the trial judge, after charging that the act of the defendant was justified if that act was, or reasonably appeared to be, necessary in order to protect himself from bodily harm, to further instruct the jury that "it is not the law that a man can make himself the judge of his own situation," when, as appears, the judge immediately added that "the jury is to determine whether or not he was in danger of receiving bodily harm or had reasonable ground for believing he was in danger of bodily harm." State v. Brown, 62 N. J. L. 666, 702; State v. Mellillo, supra. We also think that the judge did not err in refusing to charge that "if the defendant was in such danger of receiving great bodily harm that it was necessary to strike Scheel he would be justified and your verdict should be not guilty." To justify the defendant upon the ground of self-defence there must have been at the time either an actual necessity for resorting to violence for self-protection, or such violence must have reasonably appeared to the defendant to be necessary for his own protection, and that necessity must have been, or reasonably appeared to him to have been, a necessity for using the means that were used to secure the defence of his person. State v. Brown, 62 N. J. L. 666. It does not follow, as a matter of law, that if the defendant had a right to strike Scheel, he had a right to cut him with a knife, as the evidence indicated that he did, and as charged in the second count of the indictment; and, therefore, it does not follow that, if the defendant had a right to strike Scheel, the verdict should have been not guilty. Assuming that the defendant had a right to strike Scheel, it was for the jury to say whether it reasonably appeared to him to be necessary to use the knife for that purpose, and if the jury found that it did not, the defendant was guilty under the second count. We also think that there was no error in refusing to charge that "if you find that Scheel prepared for and provoked the affray, and that the defendant acted in self-defence, your verdict should be not guilty." An accused is justified in using force to defend his person only when force is necessary, or reasonably appears to be necessary, to accomplish that end. If the injury appre hended could be otherwise avoided the accused was bound to avoid the danger without resorting to violence; and even if the circumstances be such as to require the use of force to repel the assault, he will be inexcusable if he carried his defence beyond the bounds of necessity. The danger must be immediate and must be actual or else apprehended on reasonable grounds of which the jury is the judge. Tested by these principles the request was faulty. Whether the verdict should have been guilty or not guilty depended upon the manner in which the defendant exercised the right of self-defence, if he had such right; and whether, although acting in self-defence, he used more force than was necessary. In other words, from the mere fact that the defendant may have acted in self-defence when he struck Scheel, as charged in the first count, it does not follow that he was acting in self-defence when he cut him, as charged in the second count, and it was for the jury to determine whether he carried his defence beyond what was necessary, or reasonably appeared to be necessary, and if he did he was guilty. The judgment will be affirmed, with costs. For affirmance-SWAYZE, TRENCHARD, PARKER, BERGEN, KALISCH, WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, ACKERSON, JJ. 10. For reversal-None. Limpert Brothers v. Stitt. 94 N. J. L. LIMPERT BROTHERS, INC., APPELLANT, v. WILLIAM H. STITT, RESPONDENT. Argued March 3, 1920-Decided June 14, 1920. Plaintiff's complaint was struck out on motion with leave to file and serve a new complaint within twenty days. Instead of doing this, plaintiff began a new action by issue and service of summons and served complaint therein. The statutory period of limitation had then expired, Held, that plaintiff was properly nonsuited in the second suit by reason of the statute of limitation pleaded therein by defendant. On appeal from the Supreme Court. For the appellant, Earle A. Merrill. For the respondent, Winfield S. Angleman. The opinion of the court was delivered by PARKER, J. The crucial question in this case is a very simple one, viz., whether the beginning of a new action is the legal equivalent of the filing and service of an amended complaint. The question arises in this way: Plaintiffs, purchasers of certain chattels or of the right, title and interest of other parties therein at an auditor's sale in attachment, were unable to get possession of the chattels because they were held by defendant, Stitt, as constable under other process. Thereupon appellants made claim, in writing, pursuant to the statute (Comp. Stat., p. 3171, § 23), and brought suit against defendant as such constable. There was a motion to strike out the complaint, which prevailed and rule was made accordingly, reserving leave to plaintiffs (appellants) within twenty days after service of a copy of the rule to "file a new complaint and serve a copy thereof on the defendant's attorney, and that in default of the plaintiff so doing judgment may be entered," &c. Plaintiff did not file a new complaint and serve 94 N. J. L. Limpert Brothers v. Stitt. a copy; it caused a new summons to be issued, not against "William H. Stitt, constable," as was the first summons, but against "William H. Stitt," setting up substantially the same facts. Stitt answered that he held the goods by virtue of a writ to him directed, and purely in an official capacity, and that the new action had not been brought within two months after demand, as required by the statute above cited. The case came on for trial, and resulted in a nonsuit on the ground that the statute of limitation was a valid defence. This ruling of the trial court is before us on this appeal. It is undeniable, and is not denied, that if the second summons and complaint had been the only proceedings, the suit. had been begun out of time; but the argument is that the statute should not be applied under the circumstances because it was waived; because defendant is estopped to invoke it; because defendant has not been prejudiced, and because plaintiff was surprised. As to waiver, the theory is that the granting of further time for a new complaint amounted to waiver of the statute; but it is plain that the very result of the rule of court, if not its object, was to keep the plaintiff within the statute and save its rights; and that the court would have been powerless to save those rights by permitting issue of a new summons. That can only be done when there is error in issuing or service of the original summons. Practice act, 1903, § 52; Comp. Stat., p. 4068; Mutual Life Insurance Co. v. Rowand, 26 N. J. Eq. 389. Similarly as to estoppel; there is nothing that defendants did to mislead the plaintiff, or that they ought to have done and failed to do. They have litigated the claims of plaintiffs vigorously throughout. See Limpert Brothers v. French, 90 N. J. L. 600. As to defendant not being prejudiced, statutes of limitation are in the interest of terminating litigation; defendants are entitled to rely on them, and would be legally prejudiced by their non-enforcement. The claim of surprise is baseless. The long and short of the matter is that plaintiff omitted to take the course pointed out by the court to save its rights-a Quellmalz v. Atlantic Coast Elec. Ry. Co. 94 N. J. L. course plainly contemplated by such statutory authority as sections 23 and 24 of the Practice act of 1912, and by rule 31 of the Supreme Court-and resorted to a course which resulted in sacrificing them. The first suit is apparently terminated, and the second begun too late. Such a situation the courts cannot alter; plaintiff must accept the legal result of its own action. The judgment is affirmed. For affirmance-THE CHIEF JUSTICE, SWAYZE, TRENCHARD, PARKER, BERGEN, MINTURN, KALISCH, BLACK, WHITE, HEPPENHEIMER, WILLIAMS, GARDNER, JJ. 12. For reversal-None. FREDERICK QUELLMALZ, EXECUTOR, ETC., OF EDITH M. QUELLMALZ, DECEASED, RESPONDENT, v. ATLANTIC COAST ELECTRIC RAILWAY COMPANY, APPELLANT. Submitted March 22, 1920-Decided June 14, 1920. On the trial of an issue whether the blowing out of the controller box on a trolley car was due to negligent maintenance of the box and the electric equipment connected therewith, evidence that for three years the defendant trolley company, owner of the car, had not purchased any new controller boxes, is irrelevant and incompetent, and its admission is harmful error. On appeal from the Supreme Court. For the appellant. Durand, Irins & Carton and Robert H. McCarter. For the respondent, Charles E. Cook, |