ORAL ARGUMENT OF SIR CHARLES RUSSELL, Q. C. M. P. 245 



have, therefore, the report before me. The report is in the note to 11 

 East's Keports, at page 573. It was decided in the year 1809. 



Now this was the case and it is an important case. Tlie Plaintiff had 

 erected at his own expense upon his own land, or upon the water in his 

 own land, a decoy: — decoys were at one time a considerable industry 

 in various places — in order to attract ducks to that decoy; and his 

 complaint was that the Defendant, intending- to injure him, and 

 maliciously, not in exercise of a right of his own, or for purposes of 

 his OAvn, but maliciously, had tired guns in the neighbourhood of that 

 decoy, in order to frighten the ducks away from it, and the question 

 was whether that was or was not a good cause of action. The ducks 

 attracted to the decoy were, of course, wild ducks in which the Plain- 

 tiff could claim no property, and did claim no ])roperty till he had 

 actually shot them or captured them. His complaint was not that, but 

 that the Defendant had done that maliciously to injure him not in the 

 exercise of any right, but with a view to disturbing him, the Plaintiff, 

 in reaping the benefit of his decoy: and the question was whether that 

 gave him a cause of action. 



There is so much to say, and I am anxious to get over the ground, 

 that I will read only enough to bring out that point. 



Action upon the case. Plaintiff declares that he was, on the 8th of November in 

 the second year of the Queen, lawfully possessed of a close of land and a decoy upon 

 it, to which wild fowl used to resort; and the Plaintiff had at his own costs and 

 charges prepared and procured divers decoy-ducks, nets, machines, and other 

 engines for the decoying and taking of the wild fowl, and enjoyed the benelit in 

 taking them. The defendant, knowing which and intendivf) io damnify the Plaintiff 

 in his vivary, and to fright and drive away the wildfowl used to resort thither, and 

 deprive him of his profit, did, on the 8th of November, resort to the head of the 

 said pond and vivary and did discharge six guns laden with gun-powder, and with 

 the noise and stink of the gunpowder did drive away the wildfowl then being in the 

 pond; and on the 11th and 12th days of November the Defendant, with design to 

 damnify the Plaintiff" and fright away the wildfowl, did place himself with a gun 

 near the vivary. 



And so on, and Chief Justice Holt, a Judge of great authority, deals 

 with the matter thus — 



When a man useth 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 ? 



1014 And so on; 



But therein is the difference to be taken between a liberty in which the public 

 hath 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 doth him damage by 

 using the same employment; as if Mr. Hickeriugill had set up another decoy on his 

 own ground near the Plaintiff's, and that had si)oilt the cUvStom of the Plaintiff, no 

 action would lie, because he had as much liber tv to make and use a decoy as the 

 Plaintiff. 



The action was simply brought against the Defendant for an act not 

 puri)orting to be done in exercise of a right of his, but maliciously done 

 in order to injure and damnify the Plaintiff. 



Lord Hannen. — At page 116 in the "Modern Eeport", the antithesis 

 is brought out very clearly. 



Suppose the Defendant had shot in his own ground, if he had occasicm to shoot, it 

 would be one thing, but to shoot on purpose to damage the Plaintiff is another 

 thing and a wrong. 



