312 NEGLIGENCE IN THE USE OF HORSES, ETC. 



doctrine in Buiterfidd v. Forrester (u), wliicli lias been 

 generally adopted since, would not set up the want of a 

 superior degree of skill or care as a bar to the claim for 

 redress. Ordinary care must mean that degree of care 

 which may reasonably be expected from a person in the 

 plaintiff's situation ; and this would evidently be very 

 small indeed in so young a child. But this case presents 

 more than the want of care ; we find in it the positive 

 misconduct of the plaintiff, an active instrument towards 

 the effect. We have here express authorities for our 

 guidance. In I/oft v. Wilkes (o), a decision which excited 

 great attention both in Westminster Hall and beyond it, 

 this Court indeed held that a trespasser in a wood, where 

 he well knew sj)ring-guns to be placed, could not sue for the 

 injury received by him from the explosion of one of them. 

 But Lord Tenterden and his three brethren cautiously and 

 repeatedly declared that their opinion was founded on the 

 plaintiff's Jowic'uhj of the danger and roluntarih/ incurring 

 it. Best, J., who was supposed to carry to the greatest 

 extent the right of protecting property against invaders 

 by placing dangerous instruments, took infinite pains, when 

 Chief Justice of the Common Pleas, to explain that his 

 opinion in Ilott v. WlUies (o) rested exclusively on the Notice, 

 In Bird v. Holbrook (p) his expressions are most remark- 

 able ; and so far is his Lordship from avowing the doctrine 

 that the plaintiff's concmTcnce in producing the evil debars 

 him from his remedy, that he considers liotf v. Wilhes (o) 

 an authority in favour of the action. He also expresses 

 an inclination to agree with the two learned judges who 

 held the action maintainable in Deane v. Clayton (q). There 

 the plaintiif's dog had been killed by a spike, placed on 

 defendant's land for the protection of his preserves, while 

 in pursuit of a hare. Park and Burrough, JJ., gave judg- 

 ment in favour of the plaintiff; Gibbs, C. J., and Dallas, J., 

 for the defendant. The present argument does not require 

 any particular discussion of that case, because Bird v. 

 Holbrook (r) is a decisive authority against the general 

 proposition that misconduct, even wilful and culpable mis- 

 conduct, must nccessarili/ exclude the plaintiif who is guilty 

 of it from the right to sue. I remember being present at 



[n) Buttcrfehl v. Forrester, 11 {q) Beane v. Clayton, 7 Taunt. 



East, 60. 489. 



{o) Ilott V. WUJccs, 3 B. & Aid. (;•) Bird v. Holbrook, 4 Bing. 



301. 628. 



{p) Bird V. Holbrook, 4 Bing. 628. 



