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Bird v Holbrook (1828), 4 Bing 628, 130 ER 911

Facts:

Holbrook (D) had a walled garden with valuable tulips. It had previously been vandalized, so D set up a spring gun with trip wires in the garden. D had no notice of danger posted. He kept it secret "lest the villain should not be detected." Bird (P), in attempting to retrieve a lost hen, climbed the wall and called to D. Having heard no answer, P jumped down and was seriously wounded by the spring gun.

Issue(s):

Can a person protect their property with violent force without providing notice?

Ratio:

Force is not justified when used for an improper purpose. (Use of force, without warning or threat of force, is not justified to prevent trespass.)

Analysis:

Best CJ:
** Humanity requires fullest possible notice;
*** No act of Christianity forbids that law will not reach, Christianity is part of law of England.
*** Setting of spring guns without notice is an inhumane act, if injury ensues, liability for injury.
** Generally, spring guns are set for deterrence, and are therefore installed with notice. In this case, the spring guns were expressly for injury (D claimed that a projectile lodged in the victim was necessary to catch the vandals).

Burrough J:
** If D had wanted to protect from thieves, would only have set guns by night.
** P was only a trespasser; if D was present during the incident, he would not have been allowed to arrest him. No man can do indirectly that which is forbidden to do directly.


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