much pressed by my brother Bosanquet. The same case is mentioned in Roll. . . . But the case in Roll differs from this at the bar in another most material respect, viz., that it is not found that the pit was dug for the purpose of killing mares. . . . The case of Butterfield v. Forrester seems to me to be authority for the doctrine I am maintaining. . . . The two things here concur, which Lord ELLENBOROUGH requires, to support such an action: fault in the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. For these reasons I am of opinion that the plaintiff is entitled to recover. DALLAS, J. It has been admitted at the bar, that the case is, in point of circumstances, altogether new, and therefore the argument has properly proceeded on general principles, and analogies, real or supposed. . . . I shall now shortly advert to the cases cited. And the first class goes to distinguish between voluntary and involuntary trespass; as in the instance of cattle passing along the road, and consuming grass and corn, or the dog chasing sheep, and other cases of the same description, the owner doing all in his power to prevent it. To the doctrine and to the authority of all such cases, I fully subscribe. . . To the next class of decisions I also equally accede; namely, those which establish, that you shall do no more than the necessity of the case requires, when the excess may be in any way injurious to another; a principle which pervades every part of the law of England. . . . Admitting therefore the authority of these cases, but denying their application, it will not be necessary to follow them in detail, and I shall come at once to the ground on which it seems to me they are to be distinguished from the present. And it is this: they all turn on the fact of presence. Such was the case in which the defendant pleaded that he killed the plaintiff's dog to preserve his own; the plea was held bad, because it did not allege that his own dog could not otherwise be saved. . . . But it does not follow from this, that he may not take measures for the general preservation of his rights during his absence, the nature of which must depend upon considerations altogether different. All such cases are, for these reasons, to be distinguished, as it seems to me, from the present. It is contended, however, that they apply; and, if you may not kill a dog by your own immediate act or order, neither can you by means provided to induce such consequence when not personally present; for what, it is asked, is the difference between killing with your own hand, with an instrument placed therein at the time, or by an instrument placed by that hand on the ground for the future purpose? That which it is unlawful to do by direct means, it is equally unlawful to do by indirect means; and to this point the case of Vere against Lord Cawdor is cited. But here, again, it appears to me, there is a misapplication of principle. Is it illegal to place spikes upon a wall? and if a party climbing over be thereby wounded or cut, can he bring an action? and yet, if I were to see a trespasser coming down my area, or getting over the garden wall, I could not drive the spike into his hand, or cut him with the glass. Or (to bring it home to the present case) suppose that, in order to separate his property from that of his neighbors, the defendant had erected a wall, and put spikes or glass upon it, and that the plaintiff had been wounded in attempting to get over, could this action have been maintained? If not, where is the distinction between spikes on the ground, with notice that they are there, or notice given by the visibility of the spikes themselves? With respect to the owner of the dog, certainly none, and for the conduct of the dog the owner is responsible. . . . Thinking that every analogy resorted to has failed, and that all principle is the other way, I am of opinion, on the general ground, that this action cannot be maintained. . . ... GIBBS, C. J. I have reflected on this question repeatedly, and the respect due to my two learned Brothers who first delivered their opinions, would incline me strongly to concur with them; but after the fullest consideration, I feel myself obliged to say, that I think this action cannot be maintained. . . . If the dog had no right to be there, as he certainly had not, his owner cannot complain that he was injured by the defences set up against all dogs in general. . . . If the dog had a right to enter the defendant's land, the action would have been maintainable; but as he entered without right, the consequences rest with himself. If I dig a pit, or fix instruments of annoyance upon my land over which another has a right of common, or a right of way, or any other right, and his cattle, in the exercise of those rights, are thereby destroyed or damnified, he may unquestionably maintain an action against me for the injury which he suffers. But why? because in those cases his cattle had a right to be where they were, and received damage from my wrongful obstruction to the exercise of that right. Their right to be there is the gist of the action. .. . And the true test, by which to try whether such an action as the present be maintainable or not, is, to ask, whether the man or animal that suffered, had or had not a right to be where he was when he received the hurt. . . . It has also been said, that because I could not justify killing or maiming dogs, which were found wandering over my land without right, therefore I cannot justify the setting up a defence which is likely to produce the same effect. But the two cases are widely different. In the one I make an immediate and direct attack on the animals, with no object in view but their destruction, which I have no right to effect, if they can be removed from my land by less violent means; in the other, I merely set up a guard against all wrong doers generally; the primary object of this guard was protection to my own property, not mischief to theirs. The mischief produced was incidental, and arose entirely from their transgressing the bounds within which they ought to have been confined. To make anything of this argument, and to found any certain rule upon it, it must be carried to the extent of proving that we can set up no defence for the protection of our houses or land, which is likely to produce more injury to aggressors, than we could legally inflict upon them, if caught in the act of aggression; for otherwise we shall be left without any rule at all. But such a proposition can never be supported. . . I think for the reasons which I before stated, that there must be judgment for the defendant. But as the Court is equally divided, regularly no judgment can be given. 712. ILOTT v. WILKES KING'S BENCH. 1820 3 B. & Ald. 304 AT the trial before GARROW, Baron, at the last Summer assizes for the county of Essex, the following facts were given in evidence: The defendant was the owner of Chrishall Wood, consisting of fifty or sixty acres; and by his order, nine or ten spring-guns were set there. Several boards were affixed, containing notices to the public that such instruments were so placed. There formerly had been a path on the outside of the woods, but it had not been used for some years. The plaintiff, on the occasion in question, accompanied by another person, went out in the day time for the purpose of gathering nuts, and proposed to his companion to enter Chrishall Wood. The latter, however, refused, unless the plaintiff would go first; and he then told plaintiff that spring-guns were set there. They both, however, entered the wood, and the plaintiff received the injury which was the subject of the action, in consequence of treading on the wire communicating with the spring-gun. Upon these facts, the learned judge considering that this involved the same question which was under the consideration of the Court of Common Pleas, in Deane v. Clayton, [ante, No. 711,] directed the jury to find a verdict for the plaintiff, and reserved to the defendant liberty to move to enter a nonsuit. The jury assessed the damages £50. . . . And a rule nisi for entering a nonsuit having been obtained in last Michaelmas term, Adolphus, Dowling, and Chitty, showed cause. In this case, the defendant, if present, would not have been justified in shooting a mere trespasser: he could only use as much force as was necessary to prevent the trespass, or its continuance. If that be so, the maxim of law applies here, that a man shall do not indirectly that which he cannot do directly. ABBOTT, C. J. We are not called upon in this case to decide the general question, whether a trespasser sustaining an injury from a latent engine of mischief, placed in a wood or in grounds where he had no reason to apprehend personal danger, may or may not maintain an action. That question has been the subject of much discussion in the Court of Common Pleas. . . . The jury have found that the plaintiff (before he entered the wood) knew that engines like that by which he suffered in consequence of his trespass were placed there; to him, there fore, they ceased to be latent engines of mischief; and the degree of injury sustained cannot vary the case in principle. The Court, therefore, cannot hold that this action is maintainable. BAYLEY, J. Nothing that falls from me shall have a tendency to encourage the practice, which, to a certain extent, has prevailed, of setting these engines for the protection of property. . . . But if another then takes upon himself to go into the wood, knowing that he is in the hazard of meeting with the injury which the guns are calculated to produce, it seems to me that he does it at his own peril, and must take the consequences of his own act. The maxim of law "volenti non fit injuria" applies; for he voluntarily exposes himself to the mischief which has happened. ... HOLROYD, J. 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. . . . Rule affirmed. 713. BIRD v. HOLBROOK COMMON PLEAS. 1828 4 Bing. 628 THIS was an action upon the case. This cause was tried at the Bristol Assizes, 1825, when a verdict was taken for the plaintiff, by consent, damages £50, 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 defendant had been, shortly before the accident, robbed of flowers and roots from his garden to the value of £20 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 doorway 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 parts of the garden wall; but it was admitted by the defendant, that the plaintiff had not seen them. . . . 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, "least the villain should not be detected." On the 21st of 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 neighborhood had escaped, and, after flying across the field above mentioned, alighted in the defendant'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 years) seeing her in distress from 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 receiving 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 discharged, and a great part of its contents, consisting of a 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, . . . Not only is it unlawful for a party to have recourse to wounding or killing in defence of property, where no felony is attempted; it is even a high offence for one who knows of the existence of a moral peril, to suffer another to approach it without warning; and, on this principle, however they differed on other points, the Judges in Deane v. Clayton, [ante, No. 711,] all agreed, that it could not be allowable, without notice, to expose even a trespasser to a mortal injury; an opinion confirmed by the language of the whole Court in Ilott v. Wilkes, 3 B. & A. 308, [ante, No. 712.] Merewether, Serjt., for the defendant. The defendant's declaration does not show an intention to revenge or punish, rather than to prevent, but a desire to detect for the purpose 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 wrongdoer from recovering a compensation for an injury occasioned by his own wrong. . . . In Blithe v. Topham, [ante, No. 708,] 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. ... Brock v. Copeland [ante, No. 709] seems decisive; for the defendant in the case having placed a large dog for the protection of his yard, the plaintiff, not a trespasser, but the defendant's foreman, entering the premise by night, was bitten; and Lord KENYON held that he could not recover damages. No distinction can be drawn between a springgun and a ferocious dog. . . . Wilde, in reply. . . . In Brock v. Copeland [ante, No. 709] the dog was placed for the protection of the dwelling-house, and the party at |