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Page:Harvard Law Review Volume 2.djvu/43

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LUMLEY V. GVE.

25

This is the case of Walker v, Cronin, above cited. It was an action on the case for enticing shoemakers to leave the employment of the plaintiff, and the court held, on a demurrer to the declaration^ that a good cause of action was stated in each of the three counts, although the first two contained no allegation that the men were in the employ of the plaintiff or about to enter his employ, under a contract for a term, or under any fixed contract. Mr. Justice Wells stated the principle involved in these terms : " Every one has a right to enjoy the fruits and advantages of his own enter- prise, industry, skill, and credit. He has no right to be protected against competition ; but he has a right to be free from malicious and wanton interference, disturbance, or annoyance. If disturb- ance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria^ unless some superior right by contract or otherwise is interfered with. But if it come from the merely wanton or malicious acts of others, with- out the justification of competition or the service of any interest or lawful purpose, it then stands upon a different footing, and falls within the principle of the authorities first referred to." Walker V. Cronin, 107 Mass. 555, at 564.^

This case is no doubt a more extreme case than Lumley v, Gye^ but it is fairly within the principle. The only difficulty is to estab- lish the element of damage, for no contract has been broken, and in departing from the service of the plaintiff the shoemakers did nothing but what they had a perfect right to do. But the court held that "the loss of advantages, either of property or of per- sonal benefit, which, but for such interference, the plaintiff would have been able to attain or enjoy,'* constituted damage.

From the principle of damage here stated it is plain that logi- cally at least the principle of Lumley v. Gye is applicable outside of the domain of contracts; and in point of authority the same principle, or something very similar, has often been applied in the law. Thus in the case of Keeble v. Hickeringill,^ in the time of Lord Holt, an action was sustained for preventing wild-fowl from alighting near the defendant's decoy pond, by firing off guns in the neighborhood to frighten them away. In Tarleton v, Magawley *

1 See Evans v. Walton, L. R. 2 C. P. 615; Noice v. Brown, 39 N. J. (law) 569; Peters v. I^rd, 18 Conn 337.

' II East, 573, note; s. c 11 Mod. 74, 130; 3 Salk. 9; Holt, 14, 17, 19. The same point was decided on similar facts in Carrington v, Taylor, 11 East, 571.

• Peake, 205.