Video of Bird v.
Holbrook - LexisNexis Courtroom Cast 05/04/23, 8:35 AM
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Bird v. Holbrook
C.P. 1825
130 Eng. Rep. 911
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Brief Fact Summary
Defendant protected his valuable tulip garden with a spring gun.
Rule of Law and Holding
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Edited Opinion
Note: The following opinion was edited by LexisNexis Courtroom Cast staff. © 2023 Courtroom Connect, Inc.
[The defendant had rented and occupied a walled garden in which they grew valuable tulips. The garden was
located about a mile from their home and it contained a single-room summer-house in which he had his wife
had slept from time to time. Shortly before the present incident, the defendant's garden had been robbed of
flowers and roots worth 20 pounds:] in consequence of which, for the protection of his property, with the
assistance of another man, he placed in the garden a spring gun, the wires connected [with which were made to
pass from the door-way of the summer-house to some tulip beds, at the height of about fifteen inches from the
ground, and across three or four of the garden paths, which wires were visible from all of the garden or the
garden wall; but it was admitted by the Defendant, that the Plaintiff had not seen them, and that he had no
notice of the spring gun and the wires being there. [The plaintiff, a 19-year-old youth, had had gone into the
garden between six and seven in the afternoon on March 21, 1825 for an innocent purpose, at the request of the
female servant of its owner, to get back a pea-fowl that had strayed. The plaintiff had climbed on the wall at the
back of the garden, and called out several times before jumping down into the garden. As he approached the
summer-house, he triggered the spring gun, which discharged heavy shot that caused a severe wound above
the knee.]
A witness to whom the Defendant mentioned the fact of his having been robbed, and of having set a spring gun,
proved that he had asked the Defendant if he had put up a notice of such gun being set, to which the Defendant
answered, that "he did not conceive that there was any law to oblige him to so," and the Defendant desired
such person not to mention to anyone that the gun was set, "lest the villain should not be detected." The
Defendant stated to the same person that the garden was very secure, and that he his wife were going to sleep
in the summer-house in a few days. . . .
Merewether Serjt. for the defendant. . . . . The main ground of the defence, however, is, that the Plaintiff cannot
recover for an injury occasioned to him by his own wrongful act. Commodum ex injuria non oritur and it is
equally the principle of our law, that jus ex injuria non oritur. If a man place broken glass on a wall, or spikes
behind a carriage, one who willfully encounters them, and is wounded, even though it were by night, when he
could have no notice, has no claim for compensation. Volenti non fit injuria. The Defendant lawfully places a gun
on his own property; he leaves the wires visible; he builds a high wall, expressly to keep off intruders; and if,
under those circumstances, they are permitted to recover for an injury resulting from their scaling the wall, no
man can protect his property at a distance.
Wilde in reply. . . . No illustration can be drawn from the use of spikes and broken glass on walls, &c. These are
mere preventives, obvious to the sight, - unless the trespasser chooses a time of darkness, when no notice
could be available, -mere preventives, injurious only to the persevering and determined trespasser, who can
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calculate at the moment of incurring the danger the amount of suffering he is about to endure, and who will,
consequently, desist from his enterprise whenever the anticipated advantage is outweighed by the pain which
he must endure to obtain it.
BEST, C.J. I am of opinion that this action is maintainable. . . .
It has been argued that the law does not compel every line of conduct which humanity or religion may require;
but there is no act which Christianity forbids, that the law will not reach: if it were otherwise, Christianity would
not be, as It has always been held to be, part of the law of England. I am, therefore, clearly of opinion that he
who sets spring guns, without giving notice, is guilty of an inhuman act and that, injurious consequences ensue,
he is liable to yield redress to the sufferer. But this case stands on grounds distinct from any that have preceded
it." In general, spring guns have been set for the purpose of deterring; the Defendant placed his for the express
purpose of doing injury; for, when called on to give notice, he said, "If I give notice, I shall not catch him," He
intended, therefore, that the gun should be discharged, and that the contents should be lodged in the body of
his victim, for he could not be caught in any other way. On these principles the action is clearly maintainable,
and particularly on the latter ground. The only thing which raised any doubt in my mind was the recent act of
parliament; and if that had been purely prohibitory, there would be great weight in the argument which has been
raised on it; because in a new prohibitory law we have the testimony of the legislature that there was no
previous law against the thing prohibited. But the act is declaratory as to part, and prohibitory as to part;
declaratory as to the setting of spring guns, without notice, and the word "declared" is expressly introduced;
prohibitory as to setting spring guns, even with notice, except in dwelling-houses by night. As to the case of
Brock v. Copeland, Lord Kenyon proceeded on the ground that the Defendant had a right to keep a dog for the
preservation of his house, and the Plaintiff, who was his foreman, knew where the dog was stationed. The case
of the furious bull is altogether different; for if a man places such an animal where there is a public footpath, he
interferes with the rights of the public. What would be the determination of the court if the bull were placed in a
field where there is no footpath, we need not now decide; but it may be observed, that he must be placed
somewhere, and is kept, not for mischief, but to renew his species; while the gun in the present case was
placed purely for mischief. The case of the pit dug on a common has been distinguished, on the ground that the
owner had a right to do what he pleased with his own land, and the Plaintiff could shew no right for the horse to
be there.
. . . . But we want no authority in a case like the present; we put it on the principle that it is inhuman to catch a
man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of
English law to uphold humanity and the sanctions of religion. It would be, indeed, a subject of regret, if a party
were not liable in damages, who, instead of giving notice of the employment of a destructive engine, or
removing it, at least, during the day, expressed a resolution to withhold notice, lest, by affording it, he should fail
to entrap his victim.
BURROUGH, J. The common understanding of mankind shews, that notice ought to be given when these
means of protection are resorted to; and it was formerly the practice upon such occasions to give public notice
in market towns. But the present case is of a worse complexion than those which have preceded it; for if the
Defendant had proposed merely to protect his property from thieves, he would have set the spring guns only by
night. The Plaintiff was only a trespasser: if the Defendant had been present he would not have been authorized
even in taking him into custody, and no man can do indirectly that which he is forbidden to do directly.
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