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


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.


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


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.)


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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