Case lies where the plaintiff had a possession without any property. Case in which the plaintiff declared, that he was possessed of a decoy pond frequented with ducks, of which he made great gains, and that the defendant knowing and maliciously intending to deprive him (the plaintiff) of the use arid benefit of his said decoy pond, did on such a day and place, at one time, discharge and shoot off six guns, and at another time four guns to fright away his ducks, andc. upon not guilty pleaded the plaintiff had, a verdict ; it was objected in arrest of judgment, that the defendant stood on his own ground, arid so could not be guilty of a trespass in the close of the plaintiff; besides the declaration is ill; for the plaintiff did not set forth how many ducks were frighted away, or if he had, it had been ill, because being wild ducks, he had no property in them.
Holt, Chief Justice. A decoy pond is a kind of trade, and of great profit to the owner, and by the same reason that an action will lie for malicious wmds spoken by one tradesman of another, it will lie for a malicious act done by one to another, for in both cases it is prejudicial to the plaintiff. If one man keeps a school in such a place, another may do so likewise in the same place, though he draw away the scholars from the other school, it is true, this is damnum, but it is absque injuria; but he must not shoot guns at the scholars of the other school, to fright them from coming there any more. And as to the other objection, the plaintiff needs not shew how many ducks were frighted, because it is impossible for him to do it, and though they were wild, yet they were flumineae volucres, and in the plaintiff’s decoy pond, and so in his possession, which is sufficient without shewing that he had any property in them.
Citations:
[1795] EngR 2265, (1795) 3 Salk 9, (1795) 91 ER 659 (A)
Links:
Citing:
See Also – Keeble v Hickeringill 1796
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See Also – Keeble v Hickeringall (472) 1738
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See Also – Keeble v Hickeringall 1738
Holt CJ, delivered the opinion of the Court for the plaintiff, and said, that this is a new action, but is supported by the old reason and principles of law ; taking of wild-fowl is a lawful and profitable employment, it is as if it were his trade . .
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Torts – Other
Updated: 05 May 2022; Ref: scu.354610