The Sun.
London, England, 1825-08-18 00:00:00

9PRING-GUNS.-11IRD.V, MOLDROOX.

• Mr. SMITH opened the pleadings. Tie declaration set
forth, that on a certain day the defendant put a spring-gun in
a certain garden, with certain wires attached to the said spring-
gun, which.had the effect of discharging it ; and not having
given notice that he had placed the spring-gun in his garden,
the plaintiff having occasion to go into the said garden, trod
on the said wires, which discharged the said'spring-gun, the
contents of which were lodged in his leg, whereby he was
greatly wounded and injured. There were other counts varying
the form of the charge, to all of which the defendant had -
pleaded "not guilty."
Mr. Sergeant WILLot stated the case. tie said he did not
recollect that,- during the course of his professional life, he had
ever approached the opening of a case with more anxiety than
he did the present. It was connected with every motive and
with every feeling that could excite anxiety. He had to ad-
dress the Jury on a point, most important in its general con-
sequences, and extremely material in this particular instance,
involving considerations requiring much more thought and at-
tention than he had been able to bestow on them, since last
night when he received his brief, on account of other duties
connected with these assizes, to which he had to attend—consi-
derations which, he might add, it was more than probable he
would be unequal to do fair justice to at any period, even sup-
posing the greatest length of time to he alloted to him, and
the most ample means of information to be placed within his
teach. , They were considerations which did not present them-
selves to the -minds of a Juryvery frequently ; but they would
easily apply the general remarks which lie should make to the
opening which they had heard from his Learned Friend, Mr.
Smith. The plaintiff /in this case claimed, at the hands of a
Jury, remuneration for an injury which he had received by the
act of the defendant, who had placed in his garden a spring-gun,
of which he had given no notice whatever. At the first view,
they would perceive that this was a case of no ordinary de-
scription. He felt the difficulties which were naturally con-
nected with this case greatly increased by the recollection that
the able, learned, considerate, and, he was equally assured,
most humane indges, who presided in our Courts, bad dif-.
feral on many points of principle applicable to this case.—
Under what circumstances a man should be allowed by law
to place an instrument of death in his garden, or in any other
place belonging to him, was a question of very grave and se-
rious interest-=one .upon which they must observe that great
difference of opinion existed amongst the Legislators, as well
as amongst the most learned Judges of our day. •The latter
individuals, anxious on the one side to adhere to the strictest
rules-of humanity, and, on the other, to afford due pro-
tection to property, felt themselves almost unequal to the
task of deciding on this question ; and in one case had se-
parated without coming to a decision at all ; while, in an-
. other, shrinking from the determination of a most
portant princip'e, they had passed their judgment on a
single fact which existed in that case, Int which fact had
nothing to do with the general question as it appeared at
first sight. The Jury were aware that the man who com-
mitted a trespass was liable, by process of action, to make
reparation for that trespass. He would be made to pay so
much damages as would allow a fair and just compensation
for- the actua pecuniary loss sustained; or to such an amount
as the law would presume the violation of an -admitted right
demanded. That amount might be more or less according to
the motives or circumstances which accompanied the act: but
they were now discussing whether this principle was longer td
continue part of the 'law of England ; for if, in this and other
cases, a man might punish trespass by the infliction of death,

. , ,
then the ascertainment of damages .for trespass must sine so
low in t n
side
ralie scale,
tion.ihisa i t
Learned
rileecdame F
ri
al a
o matterir.
snear longerjeant wormy
Yell)
ably point out to them the necessity, se ring
of afrirdieg due and sufficient protection.toproper tY• All that
with as seciety existed,
his Learued Friend could say on this whit- he would admit
the
greatest pleasure and satisfacticin ; but when his
-Learned Friend had done, he would request of the Jury to
recollect that the question was—not whether prooerty shall be
duly_ protected, but—whether the infliction of death was a -
proper and fit mode to be adopted for the purpose a effecting
that objett. This was the case of a garden enclosed 00 one
side by a wall of six or seven feet in height, and on. another
by a fence ore wall, which presented the same boundary that
a liedge did—being no higber.than hedges usually are. The
defendant might say, " if I had caught the.lad in my
.garden,
he would have been only liable to punishment for trespass;
if I had taken a pistol, and oposing his entrance, had shot
bins, that would have been murder yet I, who would hare
been guilty of an illegal act if I had thus proceeded—.(being
.responsible both here and hereafter for my conduct in thus,
proceeding)—may place in my garden without guard, con-
troul, or notice, a deadly instrument, which no, one tan ap-
proach, however innocently, except at the hazard of his life."
Two cases had recently occurred, which related more or less
to that now under consideration. The one. we: a case where
a dcg had been wounded by a spear placed in a wood. The
question there was, whether a gentleman might, for the pre-
servation of game, .place spears in a wood, tei destroy the dogs of
any other person trespassing there. After grave and solemn
argument, the Judges of the Court of Common Pleas were di-
vided on-the-question. Two thought' the act legal, and two
thought otherwise. The second case approached more near to
thipresent. That was the case of a spring-gun set in a wood,
which the plaintiff, who was wounded by the gun, had entered
to gather nuts. The Court of Kings4.3ench thought that the
plaintiff was not entitled to redress, on the ground that the
plaintiff had distinct personal notice that there were spring ,
guns in the wood. The Court said, "We decline considering
the general queetion—we fix ourselves on the fact that
the plaintiff had due notice , and therefore had voluntarily
incurred the mischief." In both these cases, the minds
of the Judges shrank from the decision of the great
question, which, he rather thought, and hi hoped, would be
decided in this case. He rather thought they must now learn
" ay" or " no," without any exception, whether a man might
prevent trespass by placing in peril of his life every person whd
ventured without leave to enter on his grounds. In the present
case, the gentleman who chose to protect his karden in this
way, did not think it necessary to give notice—not only did he
forbear to give notice, but when it was suggested to him that
it was fit and proper to give notice, he refused to do so. 'With
regret he found, that in the case in the King's Bench to which
he had alluded, the Court did not hear counsel on both sides.
They heard the Counsel for the plaintiff, and decided that there
was no legal grotind to sustain his case. He wished the learn-
ed 'Judges had adopted a maxim of the Lord Chancellor, who
declared that he was always anxious to hear the arguments of
those who agreed with ]rim, because when his own opinions came
before him, dressed and decked out by another person, he
could then discover his own errors and fallacies more readily
than if he merely trusted to his own first impressions. He
thought, if the learned Judges of the King's Bench had, in the-
eiercise of their most excellent discretion, heard the argu-
ments of the gentlemen who were to support the principle on
which the defendant's case mainly rested, it was likely that
the paucity of reasoning Which would have been manifest in
supporting such a doctrine,—the doctrine that human life might
be taken away to prevent a damage of 3s. would probably have
induced them to decide against so monstrous a proposition.
From various causes he felt the highest respect for individual
Judges of the Court of King's Bench ; but yielding to them
the respect which was their due, still on a question of this na-
ture he must exercise his own judgment; and he could not
help thinking that the reasoning in support of the principle to
which he had so often alluded,, was inconclusive, and founded
on fallacious views. It was said that spring-guns were not
planted for the purpose of producing death, but in the hope
that they would keep off offenders; and it was further ob-
served, that it would be as improper to prevent a man from -
putting glass-bottles on his wall as from setting spring-guns.
The two cases bore no resemblance to each other. The glass
bottles were used to prevent an entrance; the spring-guns to
inflict death when-the individual had entered. His Lordship
would tell them what the law of the subject was; and if he felt
any difficulty in applying it to the present case, his Lordship
would be pleased, he hoped, to put it in such a shape as would
procure hereafter a satisfactory decision of the great question.
This was a case very fit for bringing. the great question into
agitation; for it happened that the plamtiff entered the grounds
for a most innocent purpose. The facts were shortly thisea—
lt happened that a person of the name of Morgan lest. a Pea- •
fowl, which flew over several gardens, and at length
alighted in that of the defendant. The owner was anxious
to recover the fowl, and the plaintiff volunteered to bring
it back. He got on the defendant's wall, and called out whe-
ther there was any person who would drive back the fowl,
,and
render his descent unnecessary. Receiving no answer, he
jumped down, and received a wound from the discharge of a
spring-gun. which had been the cause of much suffering to
him, and which., if Providence had not protected him, might
have occasioned his death: The Learned Sergeant then pro.
seeded to ohsetie, that the defendant, he believed, was in the
habit of cultivating flowers. He did not censure him for seek-
ing to preserve them ; but the questibn was, whether they
should be preserved and protected to this extent—whether the
defendant, for that purpose, should be allowed to set a spring-
gun in a garden not connected with his dwelling-house, but, on
the contrary, at a considerable distance from it? Surely it was
not the law of England to prevent every petty injury by placing
perions in peril of their lives ? If that were indeed our system,
then it must soon become a system of blood. if the laws were
not sufficiently severe for the preservation of property, there
was a Parliament annually sitting which was competent to the
alteration of the law, and the making it more effective; but lie
could not agree that every man shoUld have a right to form a
law for himself, and to take steps which were likely to create
injuries infinitely outweighing any mischief that he could ap-
prehend from a trespass.
Mr. Justice LITT LEDALE inquired whether the Learned
Counsel on the other side was prepared to take a verdict, and
to allow the facts to be formed into a case, for ultimate decision
in the Courts above?

Mr. Sergeant DELL answered, that he was ready to agree to
certain facts, and to allow a verdict to be taken for, and subject
to the decision of a special case. This was ufidoubtedly a
question of very great importance. There was not any case
that he was aware off which went. directly to the points now
under consideration, therefore it was desirable that it should
assume the shape of a case. He could assure his Lordship and
the Gentlemen of the Jury, that the defendant felt nothing. but
the deepest regret on this occasion ; and if he were found
liable in. point of law, he would most cheerfully bow to the
decision.
Evidence were then called to the following facts:—
Mary Collins proved, that Bird, the plaintiff, got into the
defendant's garden to secure a fowl belonging to her master,
Mr. Chargan.
Thomas Llewellyn proved that -the' defendant told him he
had a spring-gun in his garden. Witness advised him to give
notice of the fact, which defendant declined.
John Gill also proved that he advised the defendant to'put
up a notice, without, however, stating, his opinion as a lawyer,
on his right to use a spring-gun. Defendant did not put
up a notice. Defendant told him to say nothing about the
spring-gun. . •
Mr. Sergeant WILnE stated, that the boy's injuries occasion-
ed him to be confined for six weeks.

Croker proved, that he saw the plaintiff on defendant's
wall, and heard him call out before he descended.
Verdict for the plaintiff—Damages :M., subject to a special
case, with liberty to, enter a verdict for the defendant, should
the decision on the case be against the plaintiff.
The-facts agreed to, and on which the case is founded, are-
-Ist, that the plaintiff entered the garden innocently ' • 2d, that
the defendant had 'a spring-gun there; 3d, that the defendant
gave no notice of having the gun there; 4th, that he endea-
voured to conceal it; and tith, that the plaintiff was wounded.