Page images

that every man has a right to pursue his trade or calling without molestation or obstruction, and that anyone who by any act, though it be not otherwise unlawful, molests or obstructs him is guilty of a wrong unless he can show lawful justification or excuse for so doing.

The case of Keeble v. Hickeringill (1) was decided about two centuries ago, but I cannot find that it has ever been treated, unless it be quite recently, as establishing the broad general proposition alleged. No such proposition is to be found stated, so far as I am aware, as the ground of any decision, or in any standard text-book of the English law. In Smith's Leading Cases, which were selected, and the notes on which were written by one of the most eminent lawyers of his day, the case of Keeble v. Hickeringill (1) is not even referred to. And the first editors of the work, after Mr. J. W. Smith's death, Willes and Keating, J.J., lawyers on whose eminence it is unnecessary to dilate, equally passed it by without notice. If the view taken by the majority of the learned judges whose opinions were given at the bar be correct, Keeble v. Hickeringill (1) ought to have been itself treated as a leading case.

It has not, as I believe, been an authority on which subsequent decisions have been based, except in cases relating to the disturbance of decoys of wild birds. It is, nevertheless, suggested by the learned judges that it embodies the principle on which many subsequent cases have been decided, though it was not referred to, and the judges who pronounced the judgments were apparently unconscious of the authority they are said to have followed.

It is remarkable that amongst these cases are Lumley v. Gye (2) and Bowen v. Hall (3), which I have already discussed. They are said by several of the judges to rest on the principle established in Keeble v. Hickeringill (1). Some of the judges, indeed, criticise adversely the grounds upon which these cases were decided, and intimate that they can only be supported on the ground taken by Lord Holt in Keeble v. Hickeringill (1). That case, however, was not even cited by the counsel who argued Lumley v. Gye (2) or Bowen v. Hall (3), or by any of the judges who decided them. If it establishes the proposition contended for, it is astonishing that those very learned and distinguished judges were unaware of any such legal proposition, and instead of taking this short cut to their decision based it upon elaborate reasoning entirely unconnected with it.

Great reliance was placed by the respondents on certain dicta of Holt, C.J., in Keeble v. Hickeringill (1). That learned judge is reported to have said that if a violent or malicious act is done to a man's occupation, profession, or way of getting a livelihood, an action lies in all cases. And he gives the following illustrations: "If H. should lie in the way with guns and fright boys from going to school, and their parents would not let them go thither, that schoolmaster would have an action for loss of his scholars. A man hath a market to which he hath toll of horses sold, a man is bringing his horse to market to

sell, a stranger hinders and obstructs him from going to the market, an action lies, because it imports damage. Again, an action on the case lies against one that by threats frightens away his tenants at will." In all these cases I think the Chief Justice was referring to acts in themselves wrongful. Firing guns in such a manner as to terrify persons lawfully passing along the highway would, I take it, be an offence. And the other illustrations given import, I think that the obstruction and frightening were of such a character as to be unlawful, quite independently of the motives which led to them.

The case of Carrington v. Taylor (2) was also relied on by the respondents. It is, I believe, the only case which has been expressly based on Keeble v. Hickeringill (1). The plaintiff there possessed an ancient decoy, and the defendant sought his livelihood by shooting wild fowl from a boat on the water, for which boat, with small arms, he had a license from the Admiralty for fishing and coasting along the shores of Essex. The decoy was near a salt creek where the tide ebbs and flows. The only proof of disturbance of the decoy by the defendant was that, being in his boat shooting wild fowl in a part of the open creek, he had fired his fowling-piece, first within a quarter of a mile of the decoy and afterwards within 200 yards of it, and had killed several widgeons. The judge left these facts to the jury as evidence of a wilful disturbance of the plaintiff's decoy by the defendant. The jury returned a verdict for 40s. damages, and the Court, on the motion for a new trial, refused to disturb the verdict. They gave no reasons for their judgment. Unless a decoy possesses some peculiar privileges in the eye of the law, I confess myself quite unable to understand why the defendant was liable to an action or was not within his rights in shooting the wild fowl at the place he did for the purpose of gaining a livelihood, which is stated to have been his object. In any case, the decision affords no support to the contention now under consideration. For there was no allegation that the plaintiff traded in wild fowl; "great profits and advantages," in pleader's language, might well have accrued to him without his doing so. And there was no proof that he did so. Although some of the learned judges, who support the judgment below, relied on this case, one at least thinks it bad law. The case is important as showing, as I think it clearly does, that the judges of the Court of King's Bench in 1809 did not regard the judgment in Keeble v. Hickeringill (1) as founded on interference with trade or dependent on the presence of malice.

At page 153 Lord Macnaghten says:—

As regards authority, there is, I think, very little to be said. It is hardly necessary to go further back than Lumley v. Gye (1) in 1853. There is not much help to be found in the earlier cases that were cited at the bar, not even, I think, in the great case about frightening ducks

in a decoy, whatever the true explanation of that decision may be. In Lumley v. Gye (1) it was held that an action would lie for procuring a person to break a contract for personal service. The subsequent cases of Bowen v. Hall (2) and Temperton v. Russell (3) are authorities for the proposition that the principle is not confined to contracts for personal service. There is no doubt much to be said for that proposition. But the judgment under appeal does not depend on Lumley v. Gye (1) or on any decision before or after that case. It rests only on certain dicta to be found first in Bowen v. Hall (2), and afterwards repeated in Temperton v. Russell (3). Those dicta are of great weight, owing to the eminence of the judge by whom they were pronounced, but they certainly were not necessary for the decision in either case. Lumley v. Gye (1) was heard on demurrer. The counts which were demurred to alleged that the defendant knew "the premises," that is, the existence of the contract stated in the declaration and was "maliciously intending to injure the plaintiff." Mr. Willes, for the defendant, in reply, pointing out that malice was never averred in actions for seducing servants, argued that "the averment of malice can make no difference;" and that seems to have been the opinion of the majority of the Court, who thought the action would lie. Crompton, J., treats the allegation of malice as meaning nothing more than the allegation of notice, and Erle, J., indicates that the principle on which the action is to be rested is that "the procurement of the violation of the right — that is, 'the plaintiff's right under the contract' is a cause of action." If so, it would seem to follow that, provided the violation is committed knowingly, it cannot matter whether the thing is done maliciously or not. And, therefore, with all deference to the opinion of Blackburn, J., who, if I rightly understand his words in Cattle v. Stockton Waterworks (1), seems to say that "malicious intention was the gist of the action, I should be disposed to hold that if a right has been knowingly violated an allegation of malice is superfluous, and that if there has been no violation of any right, malice by itself is not a cause of action. I cannot, therefore, agree with the late Master of the Rolls in thinking that the act complained of was wrongful" "because it was malicious," and that if there be a malicious act, and loss resulting from that act, it does not matter whether there has been a violation of right or not.


At page 173 Lord Davey says:

It was, however, argued that the act of the appellant in the present case was a violation of the right which every man has to pursue a lawful trade and calling, and that the violation of this right is actionable. I remark in passing that, if this be so, the right of action must be independent of the question of malice, except in the legal sense. The right which a man has to pursue his trade or calling is qualified by the equal right of others to do the same and compete with him, though to his

damage. And it is obvious that a general abstract right of this character stands on a different footing from such a private particular right as the right to performance of a contract into which one has entered. A man has no right to be employed by any particular employer, and has no right to any particular employment if it depends on the will of another.

But is there any such general cause of action respective of the means employed or mode of interference? I think it unnecessary to comment on all the cases which have been cited by counsel, and are referred to by the learned judges. I have read them carefully, and I am satisfied that in no one of them was anything decided which is an authority for the abstract proposition maintained. In every one of them you find there was either violence or the threat of violence, obstruction of the highway, or the access to the plaintiff's premises, nuisance, or other unlawful acts done to the damage of the plaintiff. Nor does it appear to me that the gist of the action in those cases was that the plaintiff was a trader or exercised a profitable calling. That circumstance, no doubt, afforded evidence of the damage. But I suppose that if a person obstructed the access to my house or to my vessel by molesting and firing guns at persons resorting thither on their lawful occasions, I may have my action against him, though I do not keep a school, or I am not a trader, but sailing in my yacht for my own pleasure. Or, if a person obstructs my free use of the highway and I suffer damage thereby, I have a right of action, though my carriage does not ply for hire, but is used only for my own purposes. It is strange that if there be any such right of action for interference with trade, there is not to be found some clear authority in the law books in its favor. And, as remarked by one of the learned judges, if those who argued and those who decided Lumley v. Gye (1) had been aware of any such general doctrine, it would have disposed of that case without the elaborate consideration to be found in the judgments. I do not think that the wellknown action for slander of a trader's goods supports the larger proposition attempted to be founded on it. Blackstone treats that action as a particular example of slanderous words. And it appears to me an obvious fallacy to argue backwards from the existence of some recognized and well-known cause of action to a larger and wider legal proposition of which the cause of action in question might be treated as a particular case if the larger proposition had been generally recognized.

The authority most relied on in support of the proposition maintained by the respondents is the well known case of Keeble v. Hickeringill (2), or, more properly, the dicta of Lord Holt as reported in the note to 11 East. That case was an action by the owner of a decoy pond against the defendant for driving away his wild fowl by firing guns with intent to damnify the plaintiff. It appears to have been twice argued, and there are four separate reports of it, which do not altogether agree as to the grounds of the judgment. But I think it was

decided on the ground that the act of the defendant was a wilful disturbance of the enjoyment by the plaintiff of his own land for a lawful and profitable purpose, and what is called in law a nuisance. The reported cases in which the case has been followed, Carrington v. Taylor (3) and Ibbotson v. Peat (4), support this view. If this be a correct view of the decision, it is no authority for the larger proposition founded on it by the respondents; and the dieta of Lord Holt, however much entitled to respect, are inadequate to support the weight which it is sought to place upon them.

At page 179 Lord James of Hereford says:

If the principles laid down in the judgment of Lord Esher in the case of Bowen v. Hall (1) and in the case of Temperton v. Russell (2) were applied to the ordinary affairs of life, great inconvenience as well as injustice would ensue. Every competitor for a contract who alleged that he was the best person to fulfil it would be liable to an action. Take the case of an architect who seeks to be employed to the exclusion of his rivals. He says: "My plans are the best, and following them will produce the best house at the least cost. Therefore employ me and not A. or B." If he be so employed the architect would, according to the dicta in Bowen v. Hall (1), be liable to an action at the suit of his rivals. For he has induced a person not to enter into a contract with a third person, and his object clearly was to benefit himself at the expense of such third person. Indeed, if the opinion delivered by the late Cave, J., that it is actionable for a cook to say to her master, "Discharge the butler or I will leave you," is correct, in that case the ingredient of "being desirous to benefit herself at the expense of a third person" is wanting. For the objection of the cook might well proceed from a motive which would not represent any gain to herself.

But I am aware that it was urged at the Bar, that even if the views which I have expressed to your Lordships be correct, there is an exception from general principles in favor of those whose trade or employment has been interfered with. I do not assent to this view. Before discussing the question it is necessary that some definition of the words "interfered with" in their legal sense should be given. Every man's business is liable to be "interfered with" by the action of another, and yet no action lies for such interference. Competition represents "interference," and yet it is in the interest of the community that it should exist. A new invention utterly ousting an old trade would certainly "interfere with" it. If, too, this loose language is to be held to represent a legal definition of liability, very grave consequences would follow. Of course the conduct of the boiler-makers in the case before your Lordships amounted to an interference with the plaintiff's business, and yet, as has been pointed out, it is not said that an action lies against them. Every organizer of a strike, in order to obtain higher

« EelmineJätka »