Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
BEST, C.J. . . . 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 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. . . . As to the case of Brock v. Copeland, Lord Kenyon proceeded on the ground that the
Defendant had a right to keep a dog 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. . . .
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.
. . .
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 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 Defendant had been present he would not have been authorized even in taking
him into custody, and no man can do indirectly that which he is forbidden to do directly. . . . [N]o
notice whatever was given, but the Defendant artfully abstained from giving it, and he must take
the consequences.
Notes
1. Pea-fowls versus tulips. Judge Richard Posner analyzes Bird as presenting a conflict
between two economic activities:
The issue in the case, as an economist would frame it, was the proper
accommodation of two legitimate activities, growing tulips and raising peacocks.
The defendant had a substantial investment in the tulip garden; he lived at a distance;
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