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4 BING. 628. BIRD V. HOLBROOK

proceeding. Lord Eldon's doubits do not impeach the decision in Harmar v. Davis,
for he came to no conclusion on the point.
[628] BURROUGH J. concurred.
GASELEE J. The argument for the Defendant is founded on a misapprehension
of the use made of the affidavit of the petitioning creditor under the first commission.
That affidavit is not sufficient to issue a second commission on ; but, as against the
petitioning creditor, it is sufficient to show the existence of the proceedings set on foot
by him. Upon that affidavit of his the previous commission issued ; under that the
party was made a bankrupt; and the Defendant having put him in a condition to
commit the offence which the parol evidence in the cause shews him to have after-
wards completed, cannot be permitted to turn round and say that he was not a bank-
rupt under the first commission. The case of Harmar v. Davis is conclusive on the
point, and the rule must be
Discharged.

WILLIAM BIRD, an Infant, BY J. BIRD, his Next Friend, v. HOLBROOK. May 9, 1828.
[S. C. 1 Moo. & P. 607; 6 L. J. C. P. (0. S.) 146. Applied, Lynch v. Nurdin, 1841,
1 Q. B. 37. Commented on and distinguished, Jordin v. Cump, 1841, 8 Mee. & W.
789. Applied, Barnes v. Wood, 1850, 9 C. B. 421. See Degg v. Midland Railway,
1857, 1 H. & N. 780. Discussed, Clark v. Chambers, 1878, 3 Q. B. D. 333. Distin-
guished, Ponting v. Noakes, [1894] 2 Q. B. 286. See Lowery v. Walker, [1910]
1 K. B. 188 ; [1911] A. C. 10.]
The Defendant, for the protection of his property, some of which had been stolen,
set a spring gun, without notice, in a walled garden, at a distance from his house :
the Plaintiff, who climbed over the wall in pursuit of a stray fowl, having been
shot,-Held, that the Defendant was liable in damages.
This was an action upon the case. The firist count of the declaration alleged
that the Defendant had placed in a certain garden of the Defendant a certain
instrument called a spring gun, loaded with gunpowder and shot, with certain wires
communicating with the lock of the said gun, by the treading upon which the
gun could and might be let off; by means whereof the person against whom the
same should be discharged, might and could be much hurt, maimed, and wounded;
[629] and thereupon it became the duty of the Defendant, after he had so placed the
said gun, not to have suffered it to remain so loaded without giving notice or warning,
to prevent persons having occasion to enter into the said garden, from treading upon
the wire, in ignorance that the same was so set, and thereby letting off the gun and
being injured by the discharge thereof. Yet the Defendant, not regarding his duty
in that behalf, wrongfully, wilfully, and negligently suffered the gun to remain in
his garden so loaded and set, without giving any such notice or warning whatever ;
by means whereof the Plaintiff, having occasion to enter into the garden, and not
having any notice, warning, or knowledge, or any means of knowledge that any spring
gun was set in the garden, trod upon the wire attached to the lock of the gun, by
means whereof it was let off and discharged, and the shot discharged therefrom were
driven against the Plaintiff, and one of his legs was maimed, and the Plaintiff was
otherwise injured, and became disordered, and so continued for a long time, by means
whereof he suffered great pain, and expended a large sum of money in his cure.
The second count alleged, it was a duty of the Defendant not to allow the spring
gun to remain loaded in the day-time without notice, to prevent persons from
treading upon the wire from ignorance that it was set.
The third count described the spring gun as a certain dangerous engine, made for
the purpose and with the intent to lacerate, maim, and wound persons, and alleged
it was the duty of the Defendant not to suffer the spring gun to remain in the garden
without using due and proper and reasonable means or care to prevent such persons
as might enter into or be in the garden, from ignorantly and unwittingly treading
upon the wire communicating with the lock of the gun ; and that the Defendant did
not take due and proper and reasonable [630] care to prevent persons who might
enter into or be in the garden, from ignorantly and unwittingly treading upon the
wire of the gun, and thereby causing it to be let off. That Defendant neglected and
912 BIRD V. HtOLBROOK 4 BING. 631.

wholly refused so to do, and on the contrary, contriving and intending to injure the
Plaintiff, wrongfully and injuriously permitted the gun to remain so loaded and set
with a wire, by means of which it might be let off and discharged without any notice
or warning, by means whereof the Plaintiff not being able to perceive a certain con-
cealed wire, and not having any notice or knowledge, or means of notice or knowledge
thereof, trod upon the said last mentioned wire, and the gun was thereby let off. Per
quod, &c.
The fourth count charged the Defendant with having set upon certain other ground
of the Defendant a spring gun, made with intent to lacerate, maim, and wound persons,
.being then and there loaded with gunpowder and shot, and set with concealed wires;
,and thereupon it became the duty of Defendant not to permit the gun to remain on
the ground without taking due, proper, and reasonable means and care to prevent any
person from ignorantly and unwittingly treading upon the wire, and causing it to be
let off.
The fifth count charged that the wires were concealed and imperceptible, and that the
Defendant had taken no means or precaution whatever to prevent persons from treading
on them through ignorance.that they were so set; and Defendant wrongfully permitted
the Plaintiff in entering into and proceeding in the said last-mentioned ground, to tread
upon the said wire so concealed and imperceptible, and unknown to the Plaintiff.
The sixth charged the Defendant with setting a gun upon certain other land of the
Defendant, and alleged the breach of duty, in having taken no means or precaution
whatever to prevent persons from treading on [631] the wire, and wrongfully and
injuriously permitted the Plaintiff, in entering into and proceeding in the said last-
mentioned garden, to tread upon the wire.
The cause was tried at the Bristol assizes, 1825, when a verdict was taken for the
Plaintiff, by consent, damages 501., subject to a case reserved, with. liberty to either
party to turn it into a special verdict. The following were the facts of the case :-
Before, and at the time of 'the Plaintiff's sustaining the injury complained of, the
Defendant rented and occupied a walled garden in the parish of St. Phillip and Jacob,
in the county of Gloucester, in which the Defendant grew valuable flower-roots, and
particularly tulips, of the choicest and most expensive description. The garden was
at the distance of near a mile from the Defendant's dwelling-house, and above one
hundred yards from the road. In it there was a summer-house, consisting of a single
room, in which the defendant and his wife had some considerable time before slept,
and intended in a few days after the accident again to have slept, for the greater pro-
tection of their property. The garden was surrounded by a wall, by which it was
separated on the south from a footway up to some houses, bn the east and west from
other gardens, and on the north from a field which had no path through it, and was
itself fenced against the highway, at a considerable distance from the garden, by a
wall. On the north side of the garden the wall adjoining the field was seven or eight
feet' high. The other walls were somewhat lower. The garden was entered by a door
in the wall. The Defendant had been, shortly before the accident, robbed of flowers
and roots from his garden to the value of 201. and upwards : 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-[632]-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 parts of the garden or the garden wall ; but it *as 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; and that the Plaintiff had gone into the garden
for an innocent purpose, to get back a pea-fowl that had strayed.
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 do so," and the Defendant desired
such person not to mention to any one 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 and his wife were going to sleep in the summer-house in a
few days.
No notice was given of the spring gun being placed in the garden, and before the
accident in question occurred, another person to whom the Defendant mentioned the
4 RING. 633. BIRD V. HOLBROOK 913
fact of his garden having been robbed of roots to the value of 201., and to whom he
stated his intention of setting a spring gun, proved that he had told the Defendant
that he considered it proper that a board should be put up.
On the 21st March 1825, between the hours of six and seven in the afternoon, it
being then light, a pea-hen belonging to the occupier of a house in the neighbourhood
had escaped, and, after flying across the field above mentioned, alighted in the Defen-
dant's garden. A female servant of the owner of the bird was in pursuit of it, and
the Plaintiff (a youth of the age of nineteen [633] years), seeing her in distress from
the fear of losing the bird, said he would go after it for her : he accordingly got upon
the wall at the back of the garden, next to the field, and having called out two or
three times to ascertain whether any person was in the garden, and waiting a short
space of time without receivibg any answer, jumped down into the garden.
The bird took shelter near the summer-house, and the boy's foot coming in contact
with one of the wires, close to the spot where the gun was set, it was thereby dis-
charged, and a great part of its contents, consisting of large swan shot, were lodged in
and about his knee-joint, and caused a severe wound.
The question for the opinion of the Court was, Whether the Plaintiff was entitled
to recover : if so,'the verdict was to stand ; otherwise a nonsuit was to be entered.
Wilde Serjt. for the Plaintiff.
The Defendant is liable in damages for the injury the Plaintiff has sustained.
For the protection of property, no man has a right to resort to violence greater
than the occasion requires. The law does not allow the apprehension of a mere
trespasser, much less the infliction of wounds or death. The authorities on the point
are numerous and clear, and the form of pleading a justification of force in defence of
property, always alleges, that no more damage was done than was necessary for the
purpose to be effected. Lord Coke, taking the distinction between defence of the
person and defence of possession, or goods, says, (2 Inst. 316), "There is also another
diversity between an appeal of mayhem or an action of trespass for wounding or
mannas of life and member, and an action of trespass for assault and battery for a
man in defence or for the preservation of his possession of lands or goods : for in that
case he may justify an [634] assault and battery : but he cannot justify either
mayhem, or wounding, or mannas of life and member; and so note a diversity
between the defence of his person and the defence of his possession or goods."
In East's Pleas of the Crown (vol. i. 273), it is laid down, that to justify wounding
or killing, "There must be felony intended ; for if one come to beat another, or to
take his goods merely as a trespasser, though the owner may justify the beating of
him so far as to make him desist, yet if he kill him, it is manslaughter. But if the
other had come to rob him, or take his goods as a felon, and were killed in the attempt,
it would be justifiable in self-defence." Again, p. 288, "But where the trespass is
barely against the property of another, the law does not admit the force of the pro-
vocation sufficient to warrant the owner in making use of any deadly or dangerous
weapon ; as if upon sight of one breaking his hedges, the owner take up a hedge-stake
and knock him on the head, and kill him, this would be murder, because it was an act
of violence much beyond the proportion of provocation ; and still more, where such or
the like violence is used after the party has desisted from the trespass; but if the
beating were with an instrument, or in a manner not likely to kill, it would only
amount to manslaughter; and it is even lawful to exert such force against a tres-
passer, who comes without any colour to take the goods of another, as is necessary
to make him desist." Regina v. Mawgridge (Kelynge, 132).
In Hale's Pleas of the Crown (473), the same principle is laid down thus : "If A.
comes into the wood of B. and pulls his hedges or cuts his wood, and B. beat him,
whereof he dies, this is manslaughter, because though it was not lawful for A. to cut
the wood, it was [635) not lawful for B. to beat him, but either to bring him to a
justice of peace, or punish him otherwise, according to law." And again, p. 486,
"Now, concerning felonies, as there is a difference between them and trespasses, so
there is a difference among themselves in relation to the point se defendendo. If a
man comes to take my goods as a trespasser, I may justify the beating of him in
defence of my goods, but if I kill him, it is manslaughter : but if a man comes to rob
me, or take my goods as a felon, and in my resistance of the attempt I kill him, it is
me defendendo at least, and in some cases not so much."
And not only is'it unlawful for a party to have recourse to wounding or killing in
 BIRD V. HOLBROOK 4 BING. 636.

defence of property, where no felony is attempted; it is even a high offence for one
who knows of the existence of a mortal peril, to suffer another to approach it without
giving him warning; and, on this principle, however they differed on other points, the
Judges in Deane v. Clayton (7 Taunt. 518) all agreed, that it could not be allowable,
without notice, to expose even a trespasser to a mortal injury ; an opinion confirmed
lby the language of the whole Court in Ilott v. Wilks (3 B. & A. 308).
t; But if, for the protection of property or in defence of possession, it be unlawful to
have recourse to desperate violence, it is still less excusable to resort to such violence
after the trespass has been committed. Prevention, not punishment, is the foundation
of the right. The means lawfully taken to prevent offences, may, and frequently do,
operate as punishments: but they are justifiable only in their quality of preventives ;
and, even then, the degree of force must, in no case, be #greater than is necessary to
effect the object; and with respect to all the graver degrees of violence, they must not
exceed [636] the measure of punishment which the law would have inflicted if the
offence had been perpetrated.
But the infliction of injuries, however slight, which only operate'by way of example,
cannot be justified. The sanction of law is requisite to givro effect to punishment, and
pain inflicted for a supposed offence, at the discretion of an individual, without the
)intervention of a judicial sentence, is a mare act of revenge ; it can never have the
quality of judicial infliction to prevent similar offences, since it cannot be known
whether it has been justly or unjustly resorted to. In this respect the present case is
-distinguished from all that have preceded it; not only was no notice afforded to the
Plaintiff of the danger he incurred, but it is manifest, from the declarations of the
Defendant, that notice was withheld, not for the purpose of preventing a trespass, but
of inflicting a serious injury after the trespass should have been committed. The
Defendant carefully abstained from using the spring gun, as a means of prevention by
warning, in order to insure a victim, to hold up to the public as an example.
But it being clear from the foregoing authorities, that such conduct would have
been illegal, if the Defendant had been present, and had seen the Plaintiff enter his
garden, the absence of the Defendant at the time of the injury makes no difference in
the case; more especially where his own declarations have shewn so unequivocally
what were his intentions in case he had been present. No man is permitted to do
indirectly that which it is unlawful for him to do directly. The Plaintiff was not
attacking the Defendant's person, he was not attempting any felony ; at the utmost,
he was a bare trespasser: the Defendant, if he had been present, could not have
apprehended, much less have shot him for the trespass. But, having placed a gun
with the declared intention of shooting him, it is no defence to say he was absent
when the gun went off.
[637] Merewether Serit. for the Defendant. The Defendant's dedlaration does
not shew an intention to revenge or punish, rather than to prevent, but a desire to
detect for the purposes of prevention; and his defence rests on two grounds: first,
the right which every man has to take precautionary measures for the protection of
his property during unavoidable absence; secondly, the principle which precludes a
wrong-doer from recovering a compensation for an injury occasioned by his own
wrong.
Undoubtedly a man is not allowed to do indirectly what it would be unlawful for
him to do directly ; but the necessity of protecting property at a distance authorizes
the proprietor to resort directly to means, during his absence, which it might be
unlawful for him to employ if on the spot. The humanity or inhumanity of a practice,
is not a test of its legality ; and the law does not exact every line of conduct which
benevolence or religion may recommend. It is admitted that a trespasser may be
repelled. by force, if no more force be employed than is necessary ; but, during absence,
a man can employ, for the protection of his property, no less and no other force than
that of machines, which may repress offenders by the fear of pain or detection ; and if
they are so employed as not to molest another in the exercise of his rights, there is
no violation of the maxim, "Sic utere tue ut alienum non ldas," which applies to
the active invasion of another's rights, and not to the quiet protection of our own.
A party present, therefore, cannot justify the shooting a trespasser, because that is a
greater degree of violence than the occasion requires ; and knowing the trespasser, he
should resort to the law, and not take the punishment into his own hands; yet he
may. well justify placing a gun during his absence, because, by no less degree of
4 BING. 638. BIRD V. HOLBROOK 915

probable violence can he deter felons and trespassers. Besides [638] which, in placing
the gun he is making a lawful use of his own property ; a use in no degree affecting
the rights of others, and for which he could not be indicted, while any one who
removed the gun would be indictable for so doing. (Per Bayley J. in Ilott v. Wilks.)
Then, if such be a lawful use of his own property, it cannot be required that he should
give notice of doing a mere lawful act : and no case has decided that notice is necessary
upon such an occasion. Roll v. Wilks did not decide that the defendant was bound
to give notice, but merely that the plaintiff, having received notice, had no ground
of complaint. Here, however, the Plaintiff had ample notice in the circumstance that
the wires of the gun were all visible.
In Blithe v. Topham (1 Rol. Abr. 88. Cro. Jac. 158), the proprietor of a waste had
dug a pit, a few yards only from a highway : a horse having fallen into it, it was
holden the owner could not recover damages,
The pit having been as fatal to the horse as a spring gun would have been, the
case is in point, and much stronger than the present, there having been no notice at
all, and no wall round the pit, as there was round the garden of the present Defendant,
which in itself operated as notice.
But Brock v. Copeland (1 Esp. 203) seems decisive ; for the defendant in that case
having placed a large dog for the protection of his yard, the plaintiff, not a trespasser,
but the defendant's foreman, entering the premises by night, was bitten ; and Lord
Kenyon held that he could not recover damages.
No distinction can be drawn between a spring gun and a ferocious dog; and
though the defendant would not have been justified in allowing him to be at large,
(639] or, perhaps, in setting him on to attack a trespasser, yet it is plain he was
authorized in chaining him up in the yard for the protection of property during his
absence. In the case of the furious bull, referred to by Kenyon C. J. in Brock v.
Copeland, there was a public footway over the field in which the bull was placed ; so
that the owner of the field, in placing the bull there, was making a use of it incon-
sistent with the rights of the public.
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 wilfully
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.
A clear proof of the legality of the practice, at the time this action commenced, is
afforded by the passing of the recent act, against setting spring guns, except in houses
and by night. That act is not declaratory, but prohibitory ; and when a statute is
prohibitory, it is a legislative admission that the act prohibited was not an offence
before.
Wilde in reply. The statute is declaratory as to setting guns without notice, and
prohibitory as to setting them, even with notice, except in the dwelling-house at night.
In Brock v. Copeland the dog was placed for the protection of the dwelling-house, and
the party [640] attacked, being the defendant's foreman, knew that the dog was there;
and in Blithe v. Topham the pit was not dug for the purpose of doing mischief, but in
the necessary cultivation and enjoyment of the defendant's property. The maxim
volenti non fit injuria has no application in the present case, as the Plaintiff had no
notice of the penalty which he incurred ; the notice being expressly withheld, lost it
should deter persons from entering, i.e., lest it should make them unwilling to subject
themselves to the injury prepared for them.
No illustration can be drawn from the use of spikes and broken glass on walls, &c.
These are more 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 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 out-
weighed by the pain which he must endure to obtain it.
 BIRD V. HOLBROOK 4 BING. 641.

BEST C. J. I am of opinion that this action is maintainable. If any thing which

fell from me in llott v. Wilks were at variance with the opinion I now express, I should
not hesitate to retract it ; but the ground on which the judgment of the Court turned
in that case, is decisive of the present; and I should not have laboured the point that
the action was not maintainable in that case on the ground that the plaintiff had
received notice, unless I had deemed it maintainable if no notice had been given.
Abbott C. J. says: "Considering the present action merely on.the ground of notice,
and leaving untouched the general question as to the liability incurred by placing
such engines as these, where no notice is brought home to the party injured, I am of
opinion that this action cannot be maintained." Bayley J. [641] says: "This is a
case in which the plaintiff had notice that there were spring guns in the wood." "The
declaration assumes the law to be, not that the mere act of placing these guns in a
man's own ground is illegal, and punishable by indictment, but that a party doing that
act may be liable to an action, provided he does not take due and proper means, by
giving notice, to prevent the injury which those engines are calculated to produce."
Holroyd J. says: "I am of opinion that this action is not maintainable, on the ground
that the plaintiff had notice that the spring guns were placed in the wood in question."
"So far as he was concerned, the cause of the mischief could not be considered as
latent, and the act of letting off the gun, which was the consequence of his treading
on the wire, must be considered wholly as his act, and not the act of the person who
placed the gun there." And I am reported to have said, expressly, "Humanity
requires that the fullest notice possible should be given, and the law of England will
not sanction what is inconsistent with humanity."
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, if 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 [642] 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 dbg 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.
Those cases, therefore, do not apply to one, where an instrument is placed solely
for a bad purpose. In Deane v. Clayton, I incline to the opinion expressed by [643]
my brothers Park and Burrough. But in Deane v. Clayton, the plaintiff, the master
of the dog, had a right to hunt in the wood adjoining that in which the dog was
spiked; there was no visible boundary between the two woods; the manner in which
the plaintiff and defendant occupied their respective properties was evidence of an
understanding between them that the enjoyment should be mutual; and the dog was
4 RING. 644. BIRD V. HOLBROOK 917
impelled onwards by his natural instinct in pursuit of the game. Looking at the
authorities, therefore, Deane v. Clayton is out of the question ; and Ilott v. Wilks is an
authority in point. 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.
PARK J. I adhere to the judgment I gave in Deane v. Clayton, but shall confine
myself at present to the facts before the Court. Whether the recent act of parliament
be altogether a new law, or only declaratory of the old, I abstain from deciding;
certainly, as far as it makes the setting spring guns with notice an offence, it seems to
be a new law; but, in the present case, I found my decision on the circumstance of
the Defendant having omitted to give notice of what he had done, and his.even
expressing a desire to conceal it. In Ilott v. Wilks, the whole Court proceeded on
the ground that the Plaintiff had had notice: and in Deane v. Clayton (644] there
was notice, but under the circumstances it could not be said to have been brought
home to the trespasser. It has been contended, that though notice may deprive a
party who has received it of any right to recover, yet that it has nowhere been decided
that it is imperative on the party using the engine to give notice. But in Ilott v.
Wilks, the Court, one and all, decide on the ground of notice, and Abbott C. J. closes
his judgment thus : "Considering the present action merely on the ground of notice,
and leaving untouched the general question as to the liability incurred by placing such
engines as these, where no notice is brought home to the party injured, I am of
opinion that this action cannot be maintained." It has been asked, where has it been
laid down that notice must be given I I answer, by Abbott C. J. in the passage I
have just read; and by Bayley J. in the same case; "Although it may be lawful to
put those instruments on a man's own ground, yet, as they are calculated to produce
great bodily injury to innocent persons (for many trespassers are comparatively
innocent), it is necessary to give as much notice to the public as you can, so as to put
people on their guard against the danger." One case precisely in point has not been
adverted to; it is that of Jay v. Whitfield (a). There the plaintiff, a boy, having
entered the defendant's premises for the purpose of cutting a stick, was shot by a
spring gun, for which injury he recovered 1201. damages at the Warwick Summer
Assizes 1807, before Richards C. B., and no attempt was made to disturb the
verdict.
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 [645]
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 Defen-
dant had been present, he would not have been authorised even in taking him into
custody, and no man can do indirectly that which he is forbidden to do directly.
I held that, in Deane v. Clayton. There, the defendant was owner and occupier of a
wood adjoining a wood of Mr. Townshend's, and divided from it by a low bank and a
shallow ditch, not being a sufficient fence to prevent dogs from passing from one wood
into the other. There were public footpaths without fences through the Defendant's
wood. The defendant, to preserve hares in his wood, and prevent them from being
killed therein by dogs and foxes, kept iron spikes screwed and fastened into several
trees in his wood, each spike having two sharp ends, and so placed that each end
should point along the course of a hare-path, at such a height from the ground as to
allow a hare to pass under them without injury, but to wound and kill a dog that
might happen to run against one of the sharp ends. The defendant kept notices
printed on boards placed at the outsides of the wood, that steel traps, spring guns, and
dog spikes were set in the wood for vermin. But the plaintiff, with Mr. Townshend's
permission, being out shooting in his wood with a valuable pointer, and a hare which
was started being pursued by the dog over the bank and ditch, into the defendant's

(a) 3 B. & A. 308, in the argument in Ilott v. Wilks.

 HARRIS V. BEAVAN 4 BING. 646.

wood, the dog ran against one of the sharp spikes, and was killed, although plaintiff
endeavoured to prevent him from entering the defendant's wood.
Here, no notice whatever was given, but the Defendant [646] artfully abstained
from giving it, and he must take the consequence.
GASELEE J. After the decision in 1lot v. Wilks, it is impossible to say that this
action is not maintainable.
Judgment for the Plaintiff.

HARRIS AND ANOTHER v. BEAVAN. May 10, 1828.

[S. C. 1 M. & P. 633; 6 L. J. C. P. (0. S.) 149.]
The assignee of the reversion suing Defendant in covenant, alleged that the lessor was
seised (without stating of what estate), and being so seised, devised to Plaintiff in
fee.-After verdict: Held, a sufficient allegation of title.
The declaration stated, that Charles Bartholomew being seised of one undivided
moiety of certain tenements, by an indenture of 1784 between Charles Bartholomew
of the first part, Archdall Harris of the second, Eleanor Harris of the third, and John
Paggett of the fourth, they, Charles, Archdall, and Eleanor, demised the tenements
to John Paggett for forty-five years, at the yearly rent of 401., yielding to the said
Charles, in respect of the said moiety, 201. yearly :-covenant by John Paggett with
Charles Bartholomew, his heirs and assigns, to pay to him the rent of 201. in respect
of the said moiety: covenant with Charles, Archdall, Eleanor, and their heirs and
assigns, to repair:-
That Paggett entered, and that afterwards his interest and term of years yet to
come vested in the Defendant by assignment, and that Defendant entered.
That Charles, being so seised as aforesaid, in 1822 devised the demised premises
of him, Charles, to the Plaintiffs and their heirs, and the same year died so seised of
the reversion in the demised premises, whereby the Plaintiffs became seised of the
said reversion in the said demised premises. That while the Plaintiffs were [647] so
seised of the said reversion, 101. became due from the Defendant for two quarters of
the rent aforesaid. Breach, non-payment and non-repair.
A verdict having been-found for the Plaintiffs at the Middlesex sittings after last
Michaelmas term,
Wilde Serjt. moved in arrest of judgment, that the declaration only stating that
Charles Bartholomew was seised, without saying of what estate, it did not appear
that he was seised of a sufficient estate to demise to Paggett for forty-five years, much
less to devise to the Plaintiffs in fee. If his seisin were only for life, and it was
nowhere averred to be in fee, he could do neither the one nor the other, so that the
Plaintiffs had shewn no title which could authorise them to sue the Defendant.
A rule nisi having been granted,
Taddy Serjt. showed cause. Where a word in a declaration is capable of two
senses, and has not been put in issue, it shall, after verdict, be taken in the sense
which will best support the pleadings: Hobson v. Middleton (6 B. & C. 302). By.
finding for the Plaintiffs the jury have, in effect, found that Charles Bartholomew's
seisin was a seisin in fee, and as the word seisin will cover such an interest, the finding
is not inconsistent with the declaration. In Rez v. Bishop of Llandaff (2 Str. 1012),
it was held, that though in quare impedit it be necessary to allege a presentation, yet
the want of such allegation may be cured by verdict; and the Court said, "If the
true ground be, that it is only to shew coment he was seized, it is one of the least
defects a verdict can cure; because the existence of the thing is admitted, and the
doubt only upon the manner of it. An heir must shew cement heir, but if he does
[648] not, and the other does not demur, the finding him heir will cure it."
Wilde. Though the verdict will cure a title defectively stated, it will not cure
a defective title. In covenant by the assignee of the reversion, it is clear that the
Plaintiff must trace a title from the original lessor. (1 Wins. Saund. 234 a. note 3.)
But the Plaintiffs in the present case trace no title at all, for unless they allege Charles
Bartholomew to have been seised in fee, they could not take by devise from him.
Nothing can be inferred from this verdict but that C. Bartholomew was seised, which
is not disputed, and which it would have been useless to traverse; but whether he