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*Note: The following opinion was edited by AudioCaseFiles' staff.
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Keeble v. Hickeringill
103 Eng. Rep. 1127
Queen's Bench, 1707

The plaintiff declared that he was on 8 Nov 1703, lawfully possessed of a close of land called Minott's Meadow, [which had] a decoy pond therein to which divers wildfowl used to resort and come; and the plaintiff had at his own cost and charge prepared and procured divers decoy-ducks, nets, machines, and other engines for the decoying and taking of the wildfowl, and enjoyed the benefit in taking them. The defendant, knowing this, and intending to damnify the plaintiff in his vivary, and to frighten and drive away the wildfowl used to resort thither, and deprive him of his profit, on 8 Nov 1703, resorted to the head of the said pond and vivary, and discharged six guns laden with gunpowder, and with the noise and stink of the gunpowder drove away the wildfowl then being in the pond, and on Nov 11 and 12 the defendant, with design to damnify the plaintiff, and frighten away the wildfowl, placed himself with a gun near the vivary, and there discharged the said gun several times that was then charged with the gunpowder against the said decoy pond, whereby the wildfowl were frightened away, and forsook the said pond. Upon Not Guilty pleaded, a verdict was found for the plaintiff and 20 pounds damages.

SIR JOHN HOLT CJ:(delivered the following judgment of the court)

I am of opinion that this action does lie. It seems to be new in its instance, but is not new in the reason or principle of it. For, (i) this using or making a decoy is lawful; (ii) this employment of his ground to that use is profitable to the plaintiff, as is the skill and management of that employment.

As to the first. Every man that has a property may employ it for his pleasure and profit, as for alluring and procuring decoy ducks to come to his pond. To learn the trade of seducing other ducks to come there in order to be taken is not prohibited either by the law of the land or the moral law; but it is as lawful to use art to seduce them, to catch them, and destroy them for the use of mankind, as to kill and destroy wildfowl or tame cattle. When a man uses his art or his skill to take them, to sell and dispose of for his profit, this is his trade; and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Why otherwise are scandalous words spoken of a man in his profession actionable, when without his profession they are not so? Though they do not effect any damage, yet are they mischievous in themselves: and, therefore, in their own nature productive of damage; and, therefore, an action lies against him. Such are all words that are spoken of a man to disparage him in his trade, that may bring damage to him; though they do not charge him with any crime that may make him obnoxious to punishment; to say a merchant is broken, or that he is failing, or is not able to pay his debts; all the cases there put. How much more, when the defendant does an actual and real damage to another when he is in the very act of receiving profit by his employment.

There are two sorts of acts for doing damage to a man's employment for which an action lies: the one is in respect of a man's privilege; the other is in respect of his property. In that of a man's franchise or privilege whereby he has a fair, market, or ferry, if another shall use the like liberty, though out of his limits, he shall be liable to an action though by grant from the King. But therein is the difference to be taken between a liberty in which the public has a benefit, and that wherein the public is not concerned. The other is where a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood; there an action lies in all cases. But if a man does him damage by using the same employment, as if Mr Hickeringill had set up another decoy on his own ground near the plaintiff's, and that had spoiled the custom of the plaintiff, no action would lie because he had as much liberty to make and use a decoy as the plaintiff. This is like the Gloucester Grammar School Case. One schoolmaster set up a new school to the damage of an ancient school, and thereby the scholars were allured from the old school to come to his new. The action there was held not to lie. But suppose Mr Hickeringill should lie in the way with his guns, and frighten the boys from going to school, and their parents would not let them go thither; sure that schoolmaster might have an action for the loss of his scholars: A man has a market, to which he has toll for horses sold: a man is bringing his horse to market to sell: a stranger hinders and obstructs him from going thither to the market: an action lies because it imports damage. An action upon the case lies against one that shall by threats fright away his tenants at will. In Dent v Oliver trespass was brought for beating the plaintiff's servant, whereby he was hindered from taking his toll; the obstruction is a damage, though not the loss of his service.

The plaintiff in this case brings his action for the apparent injury done him in the use of that employment of his freehold, his art, and skill that he uses thereby. [W]e do know that of long time in the kingdom these artificial contrivances of decoy ponds and decoy ducks have been used for enticing into those ponds wildfowl, in order to be taken for the profit of the owner of the pond, who is at the expense of servants, engines, and other management, whereby the markets of the nation may be furnished; there is great reason to give encouragement thereunto; that the people who are so instrumental by their skill and industry so to furnish the markets should reap the benefit and have their action. But, in short, that which is the true reason, is, that this action is not brought to recover damages for the loss of the fowl, but for the disturbance; as Dawney v Dee (9). So is the usual and common way of declaring.

This case is in these books

• Property
• Dukeminier, Krier, Alexander, Schill
• 6th Edition