1841.

INGLIS

บ.

HAIGH.

held to amount to a new promise to pay the whole balance Exch. of Pleas, due on the account, over whatever period of time it might have extended. This distinction is adverted to by Lord Kenyon, in Catling v. Skoulding (a); and there can be no doubt that this latter kind of exception out of the operation of the statute, arising from the existence of items in a current account within six years before action brought, applies to actions of assumpsit, and also to actions of debt. But the cases in which that doctrine has been acted on, have proceeded on principles wholly independent of the exception as to merchants' accounts, and do not appear to us to afford any support to the notion, that that latter exception can be applied to an action like the present.

Our opinion being that the replication is bad, it is perhaps not absolutely necessary for us to say anything as to the rejoinder, by which the defendant seeks to get rid of the replication, by saying that all the items of the account are of more than six years' standing. We think it, however, right to say, that, in giving judgment for the defendant, we proceed solely on the insufficiency of the replication, and not on the rejoinder. Whatever doubt might have existed formerly on the question, whether the exception as to merchants' accounts applied to accounts in which there has been no item on either side for more than six years, that seems to us now to be entirely set at rest by the decision in the House of Lords, in Robinson v. Alexander (b). That was a case brought by appeal from the Court of Chancery, being a case of merchants' accounts, in which there had been no item on either side for a period greatly exceeding six years previous to the filing of the bill. The defendant, by his answer, insisted on the Statute of Limitations as a bar to the account sought by the bill, and there is no doubt it would have been a bar, if the exception as to merchants' accounts is confined to

(a) 6 T. R. 193.

(b) 8 Bligh, N. S. 352.

Exch. of Pleas, cases where there has been some item of account within

1841.

INGLIS

v.

HAIGH.

six years. His Honour the Vice Chancellor held the case to be within the exception in the statute, and the House of Lords, after taking time to consider, affirmed the decree of his Honour.

We have adverted to this only for the purpose of shewing that our judgment proceeds, not on the ground of there having been no item of account within six years, but solely on the ground that the exception in the statute is inapplicable in such an action as the present.

The judgment must therefore be for the defendant.

Judgment for the defendant.

June 25.

JORDIN V. CRUMP.

Declaration in CASE.—The declaration stated, that, whereas before

case alleged,

that the defend- and at the time of the committing of the grievance by ant wrongfully

set and con

cealed a dog

being an engine

calculated to do grievous bodily

harm, as well to

and unlawfully the defendant thereinafter mentioned, there had been and was a certain common and public footpath through a spear, the same certain close of the defendant's, being a coppice of wood; yet the defendant, whilst he was so possessed of the said close, to wit, on &c., wrongfully and unlawfully set, placed, and concealed, and kept and continued, a certain engine or instrument of iron, with divers sharp points, spikes, or spears of iron thereto, commonly called a dog-spike or dog-spear, the same being an engine calculated to do grievous bodily harm, as well to the liege subjects of the Queen as to their dogs happening to run upon or against

the liege subjects of the Queen as to their dogs happening to run upon the same, among the

bushes near a public footway, running through a close of the defend

ant's; by means whereof a dog of the plaintiff's, with which he was going on foot along the said footway, and which, by reason of a rabbit having crossed the footway in his view, had then, against the will of and unavoidably by the plaintiff, begun to pursue and was in pursuit of the said rabbit, ran upon the dog spear and was wounded, &c. Plea, that the defendant set and concealed the said engine for the purpose of preserving his game, and of disabling and killing dogs that might come upon his close, lest they should pursue and destroy the game, whereof the plaintiff had notice-Held, on general demurrer, that this plea was a good answer to the action; and that it would have been so even without the allegation of notice.

1841.

JORDIN

V.

CRUMP.

the same, so placed and concealed by the defendant, Exch. of Pleas, amongst the bushes near the said footway; by means whereof a certain dog, to wit, a sheep-dog of the plaintiff's, with which he the plaintiff was then going and passing on foot in and along the said footway, and which dog, by reason of a certain rabbit having then just before crossed the said footway in the view of the said dog, had then, against the will of the plaintiff and unavoidably by the plaintiff, begun to pursue, and was then in pursuit of the said rabbit, ran and struck and was driven with great force and violence upon and against one of the said sharp points, spikes, or spears of the said engine or instrument, whereby the said spear penetrated the body of the said dog, and grievously maimed and wounded him, whereby the said dog became and was of little or no use or value to the plaintiff, &c.

Seventh plea, that the defendant set and concealed, and so kept and continued the said instrument or engine, for the purpose of preserving the game of the defendant, and for the purpose of disabling and killing the dogs that might come upon the said close, lest they should pursue and destroy the said game, whereof the plaintiff had notice. Verification.

Replication, that the said engine was, by reason of its having been so set and concealed, an engine calculated to do grievous bodily harm, as well to the liege subjects of the Queen as to their dogs happening to run against the same; concluding to the country.

Special demurrer, assigning for causes, that the replication neither traversed nor confessed and avoided the plea, but that it concluded to the country, whereas it ought to have concluded with a verification.-Joinder in demurrer. The case was argued in Trinity Term (June 2), by

Atherton, in support of the demurrer. The replication is bad, and the defendant is entitled to the judgment of the

Exch. of Pleas, Court, the plea being a good answer to the action. The

1841.

JORDIN

v.

CRUMP.

act of the defendant in setting the dog-spear is not wrongful at common law; and the stat. 7 & 8 Geo. 4, c. 18, s. 1, has no application to this case. It appears on the face of the plea, and is admitted by the replication, that the plaintiff had notice of the spear being set in the wood: and that being so, he has no ground of action. In the case of Deane v. Clayton (a), in which the Court of Common Pleas was equally divided as to whether an action like the present was maintainable, the special verdict, although it found that boards were placed on some parts of the defendant's woodland, with notices painted on them that dog-spikes were set on the premises, yet did not find expressly that the plaintiff had notice of their being so set; and that circumstance is adverted to by Burrough, J., in his judgment in favour of the plaintiff. In Ilott v. Wilkes (b), the plaintiff, who was trespassing in the defendant's wood, had notice that spring guns had been placed in the wood; and on that express ground it was held, that he could not maintain an action for an injury received by him from one of them. On the other hand, in Bird v. Holbrook (c), where the action was held to be maintainable, it was on the ground that the plaintiff had no notice that spring guns had been set. Best, C. J., expressly distinguishes the case from Ilott v. Wilkes on that ground; and says, "I am 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." Townsend v. Wathen (d) may be cited for the plaintiff, but that case is clearly distinguishable, because there the plaintiff recovered for the injury done to his dogs, on the ground that the defendant's traps were set so near the highway, and baited in such a manner, that the animals were likely, by their own instinct, to be attracted into them.

1841.

JORDIN

V.

CRUMP.

Nor has the stat. 7 & 8 Geo. 4, c. 18, s. 1, any applica- Exch. of Pleas, tion to this case. The words are, "If any person shall set or place, or cause to be set or placed, any spring gun, man trap, or other engine calculated to destroy human life or inflict bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanor." In order to bring this case within the purview of the statute, it must be contended that the words, "whereby the same may destroy," apply to the setting of any instrument having a tendency to produce the injury described; but such is not the true construction: the reasonable interpretation of the statute is, that the party is not to be deemed guilty of a criminal act, unless either he intended to destroy life or inflict grievous bodily harm, or unless the destruction of life, or the infliction of grievous bodily harm, actually ensues from his act.

Whateley, contrà.-First, the plaintiff is entitled to recover independently of the statute. The better opinion appears to be in favour of the judgment of Burrough, J., and Park, J., in the case of Deane v. Clayton, and that the question of notice or no notice is not decisive of the case. In this case it is admitted by the plea, that the plaintiff was passing along a public footway, near which the dog-spike was concealed, and that his dog pursued the rabbit against his will, and unavoidably by him. It is clear, therefore, that no negligence can be imputed to the plaintiff: it is even consistent with the statements on the record, that the plaintiff was leading the dog by a string, and that the string broke. The observations of Park, J., in Deane v. Clayton are strongly applicable :-" Here these two things do concur, the wilful erection of these spears by the defendant for an unlawful purpose, viz. to kill