It is useless to try and conceal the fact that an organized body of men

working together can produce results very different from those which can

be produced by an individual without assistance. Moreover, laws adapted

to individuals not acting in concert with others require modification

and extension if they are to be applied with effect to large bodies of

persons acting in concert. The English law of conspiracy is based upon

and is justified by this undeniable truth.

But the possession of great power, whether by one person or by many, is

quite as consistent with its lawful as with its unlawful employment; and

there is no legal presumption that it will be or has been unlawfully

exercised in any particular case. Some illegal act must be proved to be

threatened and intended, or to have been committed, before any court of

justice in the United Kingdom can properly make such conduct the basis

of any decision.

These remarks are as applicable to trade unions as to other less

powerful organizations. Their power to intimidate and coerce is

undoubted; its exercise is comparatively easy and probable; but it would

be wrong on this account to treat their conduct as illegal in any

particular case without proof of further facts which make it so. It is

not incumbent on a trade union to rebut any presumption of illegality

based only on their power to do wrong. Freedom necessarily involves such

a power; but the mere fact of its existence does not justify any legal

presumption that it will be abused.

In the case before your Lordships there is proof that the members of the

mining federation combined to break and did break their contracts with

their employers by stopping work without proper notice and without

proper leave. There is also proof that the officials of the federation

assisted the men to do this by ordering them to stop work on particular

days named by the officials. To break a contract is an unlawful act, or,

in the language of Lord Watson in Allen _v._ Flood, [1898] A. C. at p.

96, “a breach of contract is in itself a legal wrong.” The form of

action for such a wrong is quite immaterial in considering the general

question of the legality or illegality of a breach of contract. Any

party to a contract can break it if he chooses; but in point of law he

is not entitled to break it even on offering to pay damages. If he wants

to entitle himself to do that he must stipulate for an option to that

effect. Non-lawyers are apt to think that everything is lawful which is

not criminally punishable; but this is an entire misconception. A breach

of contract would not be actionable if nothing legally wrong was

involved in the breach.

The federation by its officials are clearly proved in this case to have

been engaged in intentionally assisting in the concerted breach of a

number of contracts entered into by workmen belonging to the federation.

This is clearly unlawful, according to Lumley _v._ Gye, 2 E. & B. 216,

and Quinn _v._ Leathem, [1901] A. C. 495, and the more recent case of

Read _v._ Friendly Society of Stonemasons, [1902] 2 K. B. 732. Nor is

this conclusion opposed to Allen _v._ Flood, [1898] A. C. 1, or the

Mogul Steamship Company’s Case, [1892] A. C. 25, where there was no

unlawful act committed.

The appellants’ counsel did not deny that, in his view of the case, the

defendants’ conduct required justification, and it was contended (1)

that all which the officials did was to advise the men, and (2) that the

officials owed a duty to the men to advise and assist them as they did.

As regards advice, it is not necessary to consider when, if ever, mere

advice to do an unlawful act is actionable when the advice is not

libellous or slanderous. Nor is it necessary to consider those cases in

which a person, whose rights will be violated if a contract is

performed, is justified in endeavoring to procure a breach of such

contract. Nor is it necessary to consider what a parent or guardian may

do to protect his child or ward. That there are cases in which it is not

actionable to exhort a person to break a contract may be admitted; and

it is very difficult to draw a sharp line separating all such cases from

all others. But the so-called advice here was much more than counsel; it

was accompanied by orders to stop, which could not be disobeyed with

impunity. A refusal to stop work as ordered would have been regarded as

disloyal to the federation. This is plain from the speeches given in

evidence on the trial; and in my opinion it is a very important element

in the case which cannot be ignored.

As regards duty the question immediately arises—duty to do what? The

defendants have to justify a particular line of conduct, which was

wrongful, i. e., aiding and abetting the men in doing what both the men

and the officials knew was legally wrong. The constitution of the union

may have rendered it the duty of the officials to advise the men what

could be legally done to protect their own interests; but a legal duty

to do what is illegal and known so to be is a contradiction in terms. A

similar argument was urged without success in the case of the Friendly

Society of Stonemasons, [1902] 2 K. B. 732, already referred to.

Then your Lordships were invited to say that there was a moral or social

duty on the part of the officials to do what they did, and that, as they

acted _bona fide_ in the interest of the men and without any ill-will to

the employers, their conduct was justifiable; and your Lordships were

asked to treat this case as if it were like a case of libel or slander

on a privileged occasion. My Lords, this contention was not based on

authority, and its only merits are its novelty and ingenuity. The

analogy is, in my opinion, misleading, and to give effect to this

contention would be to legislate and introduce an entirely new law, and

not to expound the law as it is at present. It would be to render many

acts lawful which, as the law stands, are clearly unlawful.

My Lords, I have purposely abstained from using the word “malice.”

Bearing in mind that malice may or may not be used to denote ill-will,

and that in legal language presumptive or implied malice is

distinguishable from express malice, it conduces to clearness in

discussing such cases as these to drop the word “malice” altogether, and

to substitute for it the meaning which is really intended to be conveyed

by it. Its use may be necessary in drawing indictments; but when all

that is meant by malice is an intention to commit an unlawful act

without reference to spite or ill-feeling, it is better to drop the word

malice and so avoid all misunderstanding.

The appeal ought to be dismissed with costs.

_Order of the Court of Appeal affirmed and appeal dismissed with

costs._[579]

JERSEY CITY PRINTING CO. _v._ CASSIDY

COURT OF CHANCERY, NEW JERSEY, DECEMBER 11, 1906.

_Reported in 63 New Jersey Equity Reports, 759._

On motion, on order to show cause, for an injunction to restrain

defendants, former employes of the complainant, and now on strike, from

unlawful interference with the complainant’s business, the employment of

workmen, &c. Heard on bill, answer and affidavits.

Upon filing the bill an order was made restraining the defendants “from

in any manner knowingly and intentionally causing or attempting to cause

by threats, offers of money, payment of money, offering to pay or the

payment of transportation expenses, inducements or persuasions to any

employe of the complainant under contract to render service to it to

break such contract by quitting such service; from any and all personal

molestation of persons willing to be employed by complainant with intent

to coerce such persons to refrain from entering such employment; from

addressing persons willing to be employed by complainant against their

will and thereby causing them personal annoyance with a view to persuade

them to refrain from such employment; from loitering or picketing in the

streets near the premises of complainant, Nos. 68 and 70 York street,

and No. 37 Montgomery street, Jersey City, with intent to procure the

personal molestation and annoyance of persons employed or willing to be

employed by complainant and with a view to cause persons so employed to

quit their employment, or persons willing to be employed by complainant

to refrain from such employment; from entering the premises of

complainant, Nos. 68 and 70 York street, Jersey City, against its will

with intent to interfere with its business; from violence, threats of

violence, insults, indecent talk, abusive epithets practiced upon any

persons without their consent with intent to coerce them to refrain from

entering the employment of complainant, or to leave its employment.”

STEVENSON, V. C. (orally). The bill is filed to restrain a body of

workmen, who are on a strike, and other persons associated with them,

from doing certain things which are alleged to be injurious to the

complainant, their former employer. The things that they are restrained

from doing are specified in the restraining order. That order was not

made hastily. It was formulated with care on the part of the court, and

I do not understand that counsel for the defendant criticises its terms

on the ground that they are too broad. The defence is that the persons

who are enjoined have not been doing, and are not threatening now to do,

any of those things that are interdicted. That is the sum and substance

of the defence, which has been presented by a great many affidavits and

with very great force.

The order does not interfere with the right of the workman to cease his

employment for any reasons that he deems sufficient. It does not

undertake to say that workmen may not refuse to be employed if certain

other classes of workmen are retained in employment. It leaves the

workman absolutely free to abstain from work—for good reasons, for bad

reasons, for no reasons. His absolute freedom to work, or not to work,

is not in any way impaired. The restraining order is based upon the

theory that the right of the workman to cease his employment, to refuse

to be employed, and to do that in conjunction with his fellow-workmen,

is just as absolute as is the right of the employer to refuse further to

employ one man, or ten men, or twenty men who have theretofore been in

his employment. From an examination of the cases and a very careful

consideration of the subject I am unable to discover any right in the

courts, as the law now stands, to interfere with this absolute freedom

on the part of the employer to employ whom he will, and to cease to

employ whom he will; and the corresponding freedom on the part of the

workman, for any reason or no reason, to say that he will no longer be

employed; and the further right of the workmen, of their own free will,

to combine and meet as one party, as a unit, the employer who, on the

other side of the transaction, appears as a unit before them. Any

discussion of the motives, purposes or intentions of the employer in

exercising his absolute right to employ or not to employ as he sees fit,

or of the free combination of employes in exercising the corresponding

absolute right to be employed or not as they see fit, seems to me to be

in the air.

Thus, there is a wide field in which employes may combine and exercise

the arbitrary right of “dictating” to their common employer “how he

shall conduct his business.” The exact correlative of this right of the

employe exists, in an equal degree, in the employer. He may arbitrarily

“dictate” to five thousand men in his employ in regard to matters in

respect of which their conduct ought, according to correct social and

ethical principles, to be left entirely free. But if the “dictation” is

backed up solely by the announcement that, if it is not submitted to,

the dictating party will refrain from employing, or refrain from being

employed, as the case may be, no legal or equitable right belonging to

the party dictated to, which I am able to discern, is thereby invaded.

Some of the expressions which I have used, and which are commonly used,

in relation to this subject seem to me to be misleading. Union workmen

who inform their employer that they will strike if he refuses to

discharge all non-union workmen in his employ are acting within their

absolute right, and, in fact, are merely dictating the terms upon which

they will be employed. All such terms necessarily relate both to “how

the employer shall conduct his business” and how the employes shall

conduct their business.

The doctrine of the old cases, of which we have in New Jersey an

interesting example in State _v._ Donaldson, 3 Vr. 151, which placed the

employe, when acting in combination with his fellow-workmen, at a

tremendous disadvantage as compared with his employer, I think may be

regarded as entirely exploded. The authority of the deliverances of the

supreme court in State _v._ Donaldson was largely, if not entirely,

abolished by statute in 1883.

The principles which I have endeavored to state are all recognized in

the restraining order in this case, and are so plainly recognized that

the intelligent and industrious counsel for the defendants is unable to

point out any respect wherein the terms of the order should be modified.

The things which the restraining order interdicts are things which, for

the purposes of this argument, it is practically conceded the defendants

have no right to do.

In this situation of the case it would seem to be unnecessary to further

consider the legal propriety of the restraining order, much less to take

it up clause by clause. I have, however, pointed out what conduct on the

part of the defendants is excluded from the operation of this order, and

I think that it is fair to all the parties to this suit who are

concerned in the maintenance of the restraining order to explain, at

least in a general way, what conduct is included within its prohibition.

This can be most conveniently done by making plain the most important

principles embodied in the order—principles which practically have been

developed by the courts of this country and England during the last five

or ten years.

The injunction in strike and boycott cases is of very recent use.

Already a wide difference of opinion has been developed among judges in

regard to the liability of a combination of workmen to actions at law

for damages and suits in equity for an injunction.

It is only very recently, I think, that one of the most important rights

which now are vindicated by the injunction in a strike case has been

differentiated; in many cases it has been apparently half recognized or

indirectly enforced.

That the interest of an employer or an employe in a contract for

services is property is conceded. Where defendants, in combination or

individually, undertake to interfere with and disrupt existing contract

relations between the employer and the employe, it is plain that a

property right is directly invaded. The effect is the same whether the

means employed to cause the workman to break his contract, and thus

injure the employer, are violence or threats of violence against the

employe or mere molestation, annoyance, or persuasions. In all these

cases, whatever the means may be, they constitute the cause of the

breaking of a contract, and consequently they constitute the natural and

proximate cause of damage. The intentional doing of anything by a third

party which is the natural and proximate cause of the disruption of a

contract relation, to the injury of one of the contracting parties, is

now very generally recognized as actionable, in the absence of a

sufficient justification, and the question, in every case, seems to turn

upon justification alone.

Where the tangible property of an employer is seized or directly injured

by violence, with intent to interfere with the carrying on of his

business, the case, also is free from embarrassment.

In the case of Frank _v._ Herold, 18 Dick. Ch. Rep. 443, Vice-Chancellor

Pitney amply discussed the whole subject of the unlawfulness of

molestation and annoyance of employes, with intent and with the effect

to induce them to abandon their employment, to the injury of their

employer’s business.

But the difficult case presents itself when the workmen in combination

undertake to interfere with the freedom of action on the part of other

workmen who naturally would seek employment where they (the workmen in

combination) desire and intend that no man shall be employed excepting

upon their terms.

The difficulty is in perceiving how molestation and annoyance, not of

the employes of a complainant, but of persons who are merely looking for

work and may become employes of the complainant, can be erected into a

legal or equitable grievance on the part of the complainant. But the

difficulty is still further increased where the possible employes make

no complaint to any court for protection, and the conduct of the

molesting party does not afford a basis which the ancient common law

recognized as sufficient to support an action of tort on their behalf,

such as for an assault and battery or a slander. Abusive language is not

necessarily actionable at the common law. If to call a man a “scab” in

the street or to follow him back and forth from his home to his place of

employment was formerly not actionable on behalf of the victim of this

petty annoyance, the problem is to understand how one who is merely the

victim’s possible employer can complain, either at law or in equity,

there being no actual contract for service, but only a potential one,

interfered with.

It is easier, I think, to obtain a correct idea of the legal and

equitable right which underlies many of the injunctions which have been

granted in these strike cases restraining combinations of workmen from

interfering with the natural supply of labor to an employer, by means of

molestation and personal annoyance, if we exclude from consideration the

conduct of the defendants as a cause of action on behalf of the

immediate victims of their molestation—_i. e._, of the workman or

workmen whom the combination are seeking to deter from entering into the

employment which is offered to them, and which they, if let alone, would

wish to accept. I say this, although I firmly believe that the molested

workman, seeking employment and unreasonably interfered with in this

effort by a combination, has an action for damages at common law, and,

where the molestation is repeated and persistent, has the same right to

an injunction, in equity, which, under the same circumstances, is

accorded to his contemplated employer.

The underlying right in this particular case under consideration, which

seems to be coming into general recognition as the subject of protection

by courts of equity, through the instrumentality of an injunction,

appears to be the right to enjoy a certain free and natural condition of

the labor market, which, in a recent case in the House of Lords, was

referred to, in the language of Lord Ellenborough, as a “probable

expectancy.” This underlying right has otherwise been broadly defined or

described as the right which every man has to earn his living, or to

pursue his trade or business, without undue interference, and might

otherwise be described as the right which every man has, whether

employer or employe, of absolute freedom to employ or to be employed.

The peculiar element of this perhaps newly-recognized right is that it

is an interest which one man has in the freedom of another. In the case

before this court the Jersey City Printing Company claims the right, not

only to be free in employing labor, but also the right that labor shall

be free to be employed by it, the Jersey City Printing Company.

A large part of what is most valuable in modern life seems to depend

more or less directly upon “probable expectancies.” When they fail,

civilization, as at present organized, may go down. As social and

industrial life develops and grows more complex these “probable

expectancies” are bound to increase. It would seem to be inevitable that

courts of law, as our system of jurisprudence is evolved to meet the

growing wants of an increasingly complex social order, will discover,

define and protect from undue interference more of these “probable

expectancies.”

In undertaking to ascertain and define the rights and remedies of

employers and employes, in respect of their “probable expectancies” in

relation to the labor market, it is well not to lose sight altogether of

any other analogous rights and remedies which are based upon similar

“probable expectancies.” It will probably be found in the end, I think,

that the natural expectancy of employers in relation to the labor market

and the natural expectancy of merchants in respect to the merchandise

market must be recognized to the same extent by courts of law and courts

of equity and protected by substantially the same rules.

It is freedom in the market, freedom in the purchase and sale of all

things, including both goods and labor, that our modern law is

endeavoring to insure to every dealer on either side of the market. The

valuable thing to merchant and to customer, to employer and to employe,

manifestly is freedom on both sides of the market. The merchant, with

his fortune invested in goods and with perfect freedom to sell, might be

ruined if his customers were deprived of their freedom to buy; the

purchaser, a householder, seeking supplies for his family, with money in

his pocket and free to buy, might find his liberty of no value and might

suffer from lack of food and clothing if the shopmen who deal in these

articles were so terrorized by a powerful combination as to be coerced

into refusing to sell either food or clothing to him.

It is, however, the right of the employer and employe to a free labor

market that is the particular thing under consideration in this case.

A man establishes a large factory where working people reside, taking

the risk of his being able to conduct his industry and offer these

working people employment which they will be willing to accept. He takes

the risk of destructive competition and a large number of other risks,

out of which, at any time, may come his financial ruin and the

suspension of his manufacturing works. But our law, in its recent

development, undertakes to insure to him, not only that he may employ

whom he pleases, but that all who wish to be employed by him may enter

into and remain in such employment freely, without threats of harm,

without unreasonable molestation and annoyance from the words, actions

or other conduct of any other persons _acting in combination_. What is

the measure or test by which the conduct of a combination of persons

must be judged in order to determine whether or not it is an unlawful

interference with freedom of employment in the labor market, and as such

injurious to an employer of labor in respect of his “probable

expectancies,” has not as yet been clearly defined. Perhaps no better

definition could be suggested than that which may be framed by

conveniently using that important legal fictitious person who has taken

such a large part in the development of our law during the last fifty

years—the reasonably prudent, reasonably courageous and not unreasonably

sensitive man. Precisely this same standard is employed throughout the

law of nuisance in determining what degree of annoyance on the part of

one’s neighbor one must submit to, and what degree of such annoyance is

excessive and the subject of an action for damages or a suit for an

injunction.

A man may not be liable to an action for slander for calling a workman a

“scab” in the street, but if a hundred men combine to have this workman

denounced as a “scab” in the street, or followed in the streets to and

from his home, so as to attract public attention to him and place him in

an annoyingly conspicuous position, such conduct, the result of such

combination, is held to be an invasion of the “probable expectancy” of

his employer or contemplated employer, an invasion of this employer’s

_right to have labor flow freely to him_. Without any regard to the

rights and remedies which the molested workman may have, the injunction

goes at the suit of the employer to protect his “probable expectancy”—to

secure freedom in the labor market to employ and to be employed, upon

which the continuance of his entire industry may depend.

I think it is safe to say that all through this development of strike

law, during the last decade, no principle becomes established which does

not operate equally upon both employer and employe. The rights of both

classes are absolutely equal in respect of all these “probable

expectancies.” An operator upon printing machines has the right to offer

his labor freely to any of the printing shops in Jersey City. These

shops may all combine to refuse to employ him on account of his race, or

membership in a labor union, or for any other reason, or for no reason,

precisely as twenty employes in one printing shop may combine and

arbitrarily refuse to be further employed unless the business is

conducted in accordance with their views. But in the case of the

operative seeking employment, he has a right to have the action of the

masters of the printing shops, in reference to employing him, left

absolutely free. If, after obtaining, or seeking to obtain, employment

in a shop, the master of that shop should be subjected to annoyances and

molestation, instigated by the proprietors of other printing shops, who

combine to compel by such molestation and annoyance, this one master

printer, against his will and wish, to exclude the operative from

employment, this operative, in my judgment, would have a right to an

action at law for damages, and would have a right to an injunction if

his case presented the other ordinary conditions upon which injunctions

issue. But the common law courts have not had time to speak distinctly

on this subject as yet, and it is necessary to be cautious in dealing

with a subject in which both courts of law and courts of equity as yet

are feeling their way.

I think that the leading principle enforced in the restraining order in

this case is not inconsistent with any authorities which control this

court. This principle is that a combination of employers, or a

combination of employes, the object of which is to interfere with the

freedom of the employer to employ, or of the employe to be employed (in

either of which cases there is an interference with the enjoyment of a

“probable expectancy,” which the law recognizes as something in the

nature of property), by means of such molestation or personal annoyance

as would be liable to coerce the person upon whom it was inflicted,

assuming that he is reasonably courageous and not unreasonably

sensitive, to refrain from employing or being employed, is illegal and

founds an action for damages on the part of any person knowingly injured

in respect of his “probable expectancy” by such interference, and also,

when the other necessary conditions exist, affords the basis of an

injunction from a court of equity.

The doctrine which supports that portion of the restraining order in

this case which undertakes to interdict the defendants from molesting

applicants for employment as an invasion of a right of the complainant,

is applicable to a situation presenting either an employer or an employe

as complainant, and containing the following elements:

_First._ Some person or persons desiring to exercise the right of

employing labor, or the right of being employed to labor.

_Second._ A combination of persons to interfere with that right, by

molestation or annoyance, of the employers who would employ, or of the

employes who would be employed, in the absence of such molestation.

How far the element of combination of a number of persons will finally

be found necessary, in order to make out the invasion of a legal or

equitable right in this class of cases, need not be discussed. We are

dealing with cases where powerful combinations of large numbers, in

fact, exist.

_Third._ Such a degree of molestation as might constrain a person having

reasonable fortitude, and not being unreasonably sensitive, to abandon

his intention to employ or to be employed, in order to escape such

molestation.

_Fourth._ As the result of the foregoing conditions, an actual pecuniary

loss to the complaining party, by the interference with his enjoyment of

his “probable expectancies” in respect of the labor market.

I do not think that the constraining force brought to bear upon the

employer or employe which the law can interdict can ever include the

power of public opinion or even of class opinion. Every man, whether an

employer or an employe, constitutes a part of a great industrial system,

and his conduct is open to the criticism of the members of his own

class. While, therefore, a combination of union men have no right to cry

“scab” in the streets to non-union employes, or follow them in the

street in a body to and from their homes, or do many other things _in

combination_, which, if done once by a single individual, would not

found an action of tort, such combinations, I think, have left a fairly

wide field of effort towards the creation and application of public

opinion as a constraining force upon conduct of any kind which they wish

to discourage.

I have endeavored to explain, in a general way, my own view of the most

important and least understood principle embodied in the restraining

order in this case, in order that the defendants, and, in fact, all

parties interested, may have all possible light in construing and

applying the exact terms of the order. What I have said may be found to

be subject to modifications, without subjecting the terms of the order

to any change. All generalizations on such a subject—such a novel

subject as the one under consideration—are dangerous. There may be

conduct on the part of a combination of employers, or of employes, which

would seem to come within the general definition or description of

illegal and prohibited conduct, which I have attempted to frame, but

which conduct, nevertheless, might be justified, and hence could not be

adjudged illegal. Molestation and personal annoyance, however, the terms

which I have employed, do not seem to be inclusive of any justifiable

conduct, especially if no one is allowed to complain that he is molested

or annoyed by being subjected peaceably to the judgment and criticism of

public opinion.

* * * * *

The vice-chancellor then discussed at length the effect of the answer of

the defendants and the affidavits annexed thereto, which denied all the

charges of interference with existing labor contracts or molestation

practiced to prevent new workmen from being employed. The conclusion was

that, notwithstanding such denials, even when sustained by the greater

weight of evidence, the restraining order should be held in force as to

those defendants who stood fairly charged, under oath, with the

interdicted misconduct, and should be vacated as to any other defendants

not so charged; that the sole issue appeared to be one of fact, viz.,

whether the defendants had done, and were threatening to do, the acts

complained of or not, and that such an issue could not properly be tried

on _ex parte_ affidavits, but should be reserved for the final hearing;

that in a case like this, where the defendants were the only persons in

sight apparently interested in having the unlawful conduct complained of

continued, and were therefore subjected to a temptation to cause such

conduct to be continued, an injunction which merely prevented them from

doing acts which they disclaimed any right to do, and denied that they

had done or threatened to do, should be retained until the final

hearing.

THE MOGUL STEAMSHIP COMPANY LIMITED _v._ McGREGOR & COMPANY

IN THE COURT OF APPEAL, JULY 13, 1889.

_Reported in Law Reports, 23 Queen’s Bench Division, 598._

BOWEN, L. J.[580] We are presented in this case with an apparent

conflict or antinomy between two rights that are equally regarded by the

law—the right of the plaintiffs to be protected in the legitimate

exercise of their trade, and the right of the defendants to carry on

their business as seems best to them, provided they commit no wrong to

others. The plaintiffs complain that the defendants have crossed the

line which the common law permits; and inasmuch as, for the purposes of

the present case, we are to assume some possible damage to the

plaintiffs, the real question to be decided is whether, on such an

assumption, the defendants in the conduct of their commercial affairs

have done anything that is unjustifiable in law. The defendants are a

number of shipowners who formed themselves into a league or conference

for the purpose of ultimately keeping in their own hands the control of

the tea carriage from certain Chinese ports, and for the purpose of

driving the plaintiffs and other competitors from the field. In order to

succeed in this object, and to discourage the plaintiffs’ vessels from

resorting to those ports, the defendants during the “tea harvest” of

1885 combined to offer to the local shippers very low freights, with a

view of generally reducing or “smashing” rates, and thus rendering it

unprofitable for the plaintiffs to send their ships thither. They

offered, moreover, a rebate of five per cent to all local shippers and

agents who would deal exclusively with vessels belonging to the

Conference, and any agent who broke the condition was to forfeit the

entire rebate on all shipments made on behalf of any and every one of

his principals during the whole year—a forfeiture of rebate or allowance

which was denominated as “penal” by the plaintiffs’ counsel. It must,

however, be taken as established that the rebate was one which the

defendants need never have allowed at all to their customers. It must

also be taken that the defendants had no personal ill-will to the

plaintiffs, nor any desire to harm them except such as is involved in

the wish and intention to discourage by such measures the plaintiffs

from sending rival vessels to such ports. The acts of which the

plaintiffs particularly complained were as follows:—First, a circular of

May 10, 1885, by which the defendants offered to the local shippers and

their agents a benefit by way of rebate if they would not deal with the

plaintiffs, which was to be lost if this condition was not fulfilled.

Secondly, the sending of special ships to Hankow in order by competition

to deprive the plaintiffs’ vessels of profitable freight. Thirdly, the

offer at Hankow of freights at a level which would not repay a shipowner

for his adventure, in order to “smash” freights and frighten the

plaintiffs from the field. Fourthly, pressure put on the defendants’ own

agents to induce them to ship only by the defendants’ vessels, and not

by those of the plaintiffs. It is to be observed with regard to all

these acts of which complaint is made that they were acts that in

themselves could not be said to be illegal unless made so by the object

with which, or the combination in the course of which, they were done;

and that in reality what is complained of is the pursuing of trade

competition to a length which the plaintiffs consider oppressive and

prejudicial to themselves. We were invited by the plaintiffs’ counsel to

accept the position from which their argument started—that an action

will lie if a man maliciously and wrongfully conducts himself so as to

injure another in that other’s trade. Obscurity resides in the language

used to state this proposition. The terms “maliciously,” “wrongfully,”

and “injure” are words all of which have accurate meanings, well known

to the law, but which also have a popular and less precise

signification, into which it is necessary to see that the argument does

not imperceptibly slide. An intent to “injure” in strictness means more

than an intent to harm. It connotes an intent to do wrongful harm.

“Maliciously,” in like manner, means and implies an intention to do an

act which is wrongful, to the detriment of another. The term “wrongful”

imports in its turn the infringement of some right. The ambiguous

proposition to which we were invited by the plaintiffs’ counsel still,

therefore, leaves unsolved the question of what, as between the

plaintiffs and defendants, are the rights of trade. For the purpose of

clearness, I desire, as far as possible, to avoid terms in their popular

use so slippery, and to translate them into less fallacious language

wherever possible.

The English law, which in its earlier stages began with but an imperfect

line of demarcation between torts and breaches of contract, presents us

with no scientific analysis of the degree to which the intent to harm,

or, in the language of the civil law, the _animus vicino nocendi_, may

enter into or affect the conception of a personal wrong; see Chasemore

_v._ Richards, 7 H. L. C. 349, at p. 388. All personal wrong means the

infringement of some personal right. “It is essential to an action in

tort,” say the Privy Council in Rogers _v._ Rajendro Dutt, 13 Moore, P.

C. 209, “that the act complained of should under the circumstances be

legally wrongful as regards the party complaining; that is, it must

prejudicially affect him in some legal right; merely that it will,

however directly, do a man harm in his interests, is not enough.” What,

then, were the rights of the plaintiffs as traders as against the

defendants? The plaintiffs had a right to be protected against certain

kind of conduct; and we have to consider what conduct would pass this

legal line or boundary. Now, intentionally to do that which is

calculated in the ordinary course of events to damage, and which does,

in fact, damage another in that other person’s property or trade, is

actionable if done without just cause or excuse. Such intentional action

when done without just cause or excuse is what the law calls a malicious

wrong (see Bromage _v._ Prosser; Capital and Counties Bank _v._ Henty,

_per_ Lord Blackburn, 7 App. Cas. 741, at p. 772). The acts of the

defendants which are complained of here were intentional, and were also

calculated, no doubt, to do the plaintiffs damage in their trade. But in

order to see whether they were wrongful we have still to discuss the

question whether they were done without any just cause or excuse. Such

just cause or excuse the defendants on their side assert to be found in

their own positive right (subject to certain limitations) to carry on

their own trade freely in the mode and manner that best suits them, and

which they think best calculated to secure their own advantage.

What, then, are the limitations which the law imposes on a trader in the

conduct of his business as between himself and other traders? There seem

to be no burdens or restrictions in law upon a trader which arise merely

from the fact that he is a trader, and which are not equally laid on all

other subjects of the Crown. His right to trade freely is a right which

the law recognizes and encourages, but it is one which places him at no

special disadvantage as compared with others. No man, whether trader or

not, can, however, justify damaging another in his commercial business

by fraud or misrepresentation. Intimidation, obstruction, and

molestation are forbidden; so is the intentional procurement of a

violation of individual rights, contractual or other, assuming always

that there is no just cause for it. The intentional driving away of

customers by show of violence, Tarleton _v._ M’Gawley, Peake, 205; the

obstruction of actors on the stage by preconcerted hissing, Clifford

_v._ Brandon, 2 Camp. 358, Gregory _v._ Brunswick, 13 L. J. C. P. 34;

the disturbance of wild fowl in decoys by the firing of guns, Carrington

_v._ Taylor, 11 East, 571, and Keeble _v._ Hickeringill, 11 East, 574

note; the impeding or threatening servants or workmen, Garret _v._

Taylor, Cro. Jac. 567; the inducing persons under personal contracts to

break their contracts, Bowen _v._ Hall, Lumley _v._ Gye,—all are

instances of such forbidden acts. But the defendants have been guilty of

none of these acts. They have done nothing more against the plaintiffs

than pursue to the bitter end a war of competition waged in the interest

of their own trade. To the argument that a competition so pursued ceases

to have a just cause or excuse when there is ill-will or a personal

intention to harm, it is sufficient to reply (as I have already pointed

out) that there was here no personal intention to do any other or

greater harm to the plaintiffs than such as was necessarily involved in

the desire to attract to the defendants’ ships the entire tea freights

of the ports, a portion of which would otherwise have fallen to the

plaintiffs’ share. I can find no authority for the doctrine that such a

commercial motive deprives of “just cause or excuse” acts done in the

course of trade which would but for such a motive be justifiable. So to

hold would be to convert into an illegal motive the instinct of

self-advancement and self-protection, which is the very incentive to all

trade. To say that a man is to trade freely, but that he is to stop

short at any act which is calculated to harm other tradesmen, and which

is designed to attract business to his own shop, would be a strange and

impossible counsel of perfection. But we were told that competition

ceases to be the lawful exercise of trade, and so to be a lawful excuse

for what will harm another, if carried to a length which is not fair or

reasonable. The offering of reduced rates by the defendants in the

present case is said to have been “unfair.” This seems to assume that,

apart from fraud, intimidation, molestation, or obstruction, of some

other personal right _in rem_ or _in personam_, there is some natural

standard of “fairness” or “reasonableness” (to be determined by the

internal consciousness of judges and juries) beyond which competition

ought not in law to go. There seems to be no authority, and I think,

with submission, that there is no sufficient reason, for such a

proposition. It would impose a novel fetter upon trade. The defendants,

we are told by the plaintiffs’ counsel, might lawfully lower rates

provided they did not lower them beyond a “fair freight,” whatever that

may mean. But where is it established that there is any such restriction

upon commerce? And what is to be the definition of a “fair freight?” It

is said that it ought to be a normal rate of freight, such as is

reasonably remunerative to the shipowner. But over what period of time

is the average of this reasonable remunerativeness to be calculated? All

commercial men with capital are acquainted with the ordinary expedient

of sowing one year a crop of apparently unfruitful prices, in order by

driving competition away to reap a fuller harvest of profit in the

future; and until the present argument at the bar it may be doubted

whether shipowners or merchants were ever deemed to be bound by law to

conform to some imaginary “normal” standard of freights or prices, or

that law courts had a right to say to them in respect of their

competitive tariffs, “Thus far shalt thou go, and no further.” To

attempt to limit English competition in this way would probably be as

hopeless an endeavor as the experiment of King Canute. But on ordinary

principles of law no such fetter on freedom of trade can in my opinion

be warranted. A man is bound not to use his property so as to infringe

upon another’s right. _Sic utere tuo ut alienum non lædas._ If engaged

in actions which may involve danger to others, he ought, speaking

generally, to take reasonable care to avoid endangering them. But there

is surely no doctrine of law which compels him to use his property in a

way that judges and juries may consider reasonable: see Chasemore _v._

Richards, 7 H. L. C. 349. If there is no such fetter upon the use of

property known to the English law, why should there be any such a fetter

upon trade?

It is urged, however, on the part of the plaintiffs, that even if the

acts complained of would not be wrongful had they been committed by a

single individual, they become actionable when they are the result of

concerted action among several. In other words, the plaintiffs, it is

contended, have been injured by an illegal conspiracy. Of the general

proposition, that certain kinds of conduct not criminal in any one

individual may become criminal if done by combination among several,

there can be no doubt. The distinction is based on sound reason, for a

combination may make oppressive or dangerous that which if it proceeded

only from a single person would be otherwise, and the very fact of the

combination may show that the object is simply to do harm, and not to

exercise one’s own just rights. In the application of this undoubted

principle it is necessary to be very careful not to press the doctrine

of illegal conspiracy beyond that which is necessary for the protection

of individuals or of the public; and it may be observed in passing that

as a rule it is the damage wrongfully done, and not the conspiracy, that

is the gist of actions on the case for conspiracy: see Skinner _v._

Gunton, 1 Wms. Saund. 229; Hutchins _v._ Hutchins, 7 Hill, 104. But what

is the definition of an illegal combination? It is an agreement by one

or more to do an unlawful act, or to do a lawful act by unlawful means:

O’Connell _v._ The Queen, 11 Cl. & F. 155; Reg. _v._ Parnell, 14 Cox,

Criminal Cases, 508; and the question to be solved is whether there has

been any such agreement here. Have the defendants combined to do an

unlawful act? Have they combined to do a lawful act by unlawful means? A

moment’s consideration will be sufficient to show that this new inquiry

only drives us back to the circle of definitions and legal propositions

which I have already traversed in the previous part of this judgment.

The unlawful act agreed to, if any, between the defendants must have

been the intentional doing of some act to the detriment of the

plaintiffs’ business without just cause or excuse. Whether there was any

such justification or excuse for the defendants, is the old question

over again, which, so far as regards an individual trader, has been

already solved. The only differentia that can exist must arise, if at

all, out of the fact that the acts done are the joint acts of several

capitalists, and not of one capitalist only. The next point is whether

the means adopted were unlawful. The means adopted were competition

carried to a bitter end. Whether such means were unlawful is in like

manner nothing but the old discussion which I have gone through, and

which is now revived under a second head of inquiry, except so far as a

combination of capitalists differentiates the case of acts jointly done

by them from similar acts done by a single man of capital. But I find it

impossible myself to acquiesce in the view that the English law places

any such restriction on the combination of capital as would be involved

in the recognition of such a distinction. If so, one rich capitalist may

innocently carry competition to a length which would become unlawful in

the case of a syndicate with a joint capital no larger than his own, and

one individual merchant may lawfully do that which a firm or a

partnership may not. What limits, on such a theory, would be imposed by

law on the competitive action of a joint-stock company limited, is a

problem which might well puzzle a casuist. The truth is, that the

combination of capital for purposes of trade and competition is a very

different thing from such a combination of several persons against one,

with a view to harm him, as falls under the head of an indictable

conspiracy. There is no just cause or excuse in the latter class of

cases. There is such a just cause or excuse in the former. There are

cases in which the very fact of a combination is evidence of a design to

do that which is hurtful without just cause—is evidence—to use a

technical expression—of malice. But it is perfectly legitimate, as it

seems to me, to combine capital for all the mere purposes of trade for

which capital may, apart from combination, be legitimately used in

trade. To limit combinations of capital, when used for purposes of

competition, in the manner proposed by the argument of the plaintiffs,

would, in the present day, be impossible—would be only another method of

attempting to set boundaries to the tides. Legal puzzles which might

well distract a theorist may easily be conceived of imaginary conflicts

between the selfishness of a group of individuals and the obvious

well-being of other members of the community. Would it be an indictable

conspiracy to agree to drink up all the water from a common spring in a

time of drought; to buy up by preconcerted action all the provisions in

a market or district in times of scarcity: see Rex _v._ Waddington, 1

East, 143; to combine to purchase all the shares of a company against a

coming settling-day; or to agree to give away articles of trade gratis

in order to withdraw custom from a trader? May two itinerant

match-vendors combine to sell matches below their value in order by

competition to drive a third match-vendor from the street? In cases like

these, where the elements of intimidation, molestation, or the other

kinds of illegality to which I have alluded are not present, the

question must be decided by the application of the test I have

indicated. Assume that what is done is intentional, and that it is

calculated to do harm to others. Then comes the question, Was it done

with or without “just cause or excuse?” If it was _bona fide_ done in

the use of a man’s own property, in the exercise of a man’s own trade,

such legal justification would, I think, exist not the less because what

was done might seem to others to be selfish or unreasonable: see the

summing-up of Erle, J., and the judgment of the Queen’s Bench in Reg.

_v._ Rowlands, 17 Q. B. 671. But such legal justification would not

exist when the act was merely done with the intention of causing

temporal harm, without reference to one’s own lawful gain, or the lawful

enjoyment of one’s own rights. The good sense of the tribunal which had

to decide would have to analyze the circumstances and to discover on

which side of the line each case fell. But if the real object were to

enjoy what was one’s own, or to acquire for one’s self some advantage in

one’s property or trade, and what was done was done honestly, peaceably,

and without any of the illegal acts above referred to, it could not, in

my opinion, properly be said that it was done without just cause or

excuse. One may with advantage borrow for the benefit of traders what

was said by Erle, J., in Reg. _v._ Rowlands, 17 Q. B. 671, at p. 687,

n., of workmen and of masters: “The intention of the law is at present

to allow either of them to follow the dictates of their own will, with

respect to their own actions, and their own property; and either, I

believe, has a right to study to promote his own advantage, or to

combine with others to promote their mutual advantage.”

Lastly, we are asked to hold the defendants’ Conference or association

illegal, as being in restraint of trade. The term “illegal” here is a

misleading one. Contracts, as they are called, in restraint of trade,

are not, in my opinion, illegal in any sense, except that the law will

not enforce them. It does not prohibit the making of such contracts; it

merely declines, after they have been made, to recognize their validity.

The law considers the disadvantage so imposed upon the contract a

sufficient shelter to the public. The language of Crompton, J., in

Hilton _v._ Eckersley, 6 E. & B. 47, is, I think, not to be supported.

No action at common law will lie or ever has lain against any individual

or individuals for entering into a contract merely because it is in

restraint of trade. Lord Eldon’s equity decision in Cousins _v._ Smith,

13 Ves. 542, is not very intelligible, even if it be not open to the

somewhat personal criticism passed on it by Lord Campbell in his “Lives

of the Chancellors.” If indeed it could be plainly proved that the mere

formation of “conferences,” “trusts,” or “associations” such as these

were always necessarily injurious to the public—a view which involves,

perhaps, the disputable assumption that, in a country of free trade, and

one which is not under the iron _régime_ of statutory monopolies, such

confederations can ever be really successful—and if the evil of them

were not sufficiently dealt with by the common law rule, which held such

agreements to be void as distinct from holding them to be criminal,

there might be some reason for thinking that the common law ought to

discover within its arsenal of sound commonsense principles some further

remedy commensurate with the mischief. Neither of these assumptions are,

to my mind, at all evident, nor is it the province of judges to mould

and stretch the law of conspiracy in order to keep pace with the

calculations of political economy. If peaceable and honest combinations

of capital for purposes of trade competition are to be struck at, it

must, I think, be by legislation, for I do not see that they are under

the ban of the common law.

In the result, I agree with Lord Coleridge, C. J., and differ, with

regret, from the Master of the Rolls. The substance of my view is this,

that competition, however severe and egotistical, if unattended by

circumstances of dishonesty, intimidation, molestation, or such

illegalities as I have above referred to, gives rise to no cause of

action at common law. I myself should deem it to be a misfortune if we

were to attempt to prescribe to the business world how honest and

peaceable trade was to be carried on in a case where no such illegal

elements as I have mentioned exist, or were to adopt some standard of

judicial “reasonableness,” or of “normal” prices, or “fair freights,” to

which commercial adventurers, otherwise innocent, were bound to conform.

In my opinion, accordingly, this appeal ought to be dismissed with

costs.

_Appeal dismissed._[581]

PASSAIC PRINT WORKS _v._ ELY & WALKER DRY GOODS COMPANY

UNITED STATES CIRCUIT COURT OF APPEALS, EIGHTH CIRCUIT, NOVEMBER 14,

1900.

_Reported in 44 U. S. Circuit Court of Appeals Reports, 426_, S. C. _105

Federal Reporter, 163._

In U. S. Circuit Court of Appeals, Eighth Circuit. Before CALDWELL,

SANBORN, and THAYER, Circuit Judges.[582]

In error to U. S. Circuit Court for Eastern District of Missouri.

This case was determined below on a demurrer to the plaintiff’s

petition, which was sustained; and a final judgment was entered against

the Passaic Print Works, the plaintiff below, it having declined to

plead further.

The plaintiff’s petition contained, in substance, the following

allegations (_inter alia_):—

Plaintiff is a corporation engaged in the manufacture of prints or

calicoes which it sells to jobbers or wholesale dealers in St. Louis and

elsewhere, who in turn sell the same to the retail trade. In 1899 it had

fixed on certain prices for certain specified brands of calicoes; and it

had, prior to Feb. 25, 1899, received from several wholesale dealers in

St. Louis orders for large amounts of said brands at the prices

specified. On February 25, 1899, the defendant company, combining and

conspiring among themselves and with others to the plaintiff unknown,

and maliciously intending to injure the business of the said plaintiff,

and to cause it great loss in money, and to break up and ruin the

plaintiff’s trade among the jobbers in St. Louis, maliciously caused a

circular, in the name of the said defendant corporation, to be issued

and sent out to the retail trade tributary to St. Louis. In the circular

defendant company offered for sale several brands of calicoes

manufactured by plaintiff at prices lower than those fixed by plaintiff.

The brands were offered “as long as they last” at these reduced prices:

“Prices for all items subject to change without notice, and orders

accepted only for stock on hand.” Plaintiff further alleged that it was

informed and believed that defendant had but a small quantity of such

goods to sell, and for that reason qualified its offer as above stated.

The petition further averred, that the effect of issuing this circular

was to compel jobbers to whom plaintiff had already sold either to

cancel their orders or to compel plaintiff to make a rebate on price,

and to thereby break up the trade of plaintiff in St. Louis and the

adjacent country, and to make the other jobbers in St. Louis afraid to

deal in said brands except at greatly reduced prices and then in

comparatively small quantities; and upon information and belief the

plaintiff alleged “that the quotations of this plaintiff’s said goods in

the said circular were made by the said defendants with the end and

object in this paragraph stated, and not for any legitimate trade

purpose.”

THAYER, Circuit Judge, [after stating the case] delivered the opinion of

the court.

The complaint filed in the lower court, the substance of which has been

stated, shows by necessary intendment that when the circular of the

defendant company was issued it had in stock a limited quantity of the

four brands of calico of the plaintiff’s manufacture which are therein

described. The circular stated, in substance, that the defendant had

such calicoes in stock, and the complaint did not deny that fact, but

admitted it by averring that “the defendant corporation had but a small

quantity of such goods to sell, and for that reason qualified its offer

to sell by inserting in the circular after the name of the goods the

words ‘as long as they last.’” Moreover, the owner of property, real or

personal, has an undoubted right to sell it and to offer it for sale at

whatever price he deems proper, although the effect of such offer may be

to depreciate the market value of the commodity which he thus offers,

and incidentally to occasion loss to third parties who have the same

kind or species of property for sale. The right to offer property for

sale, and to fix the price at which it may be bought, is incident to the

ownership of property, and the loss which a third party sustains in

consequence of the exercise of that right is _damnum absque injuria_. We

are thus confronted with the inquiry whether the motive which influenced

the defendant company to offer for sale such calicoes of the plaintiff’s

manufacture as they had in stock at the price named in its circular,

conceding such motive to have been as alleged in the complaint, changed

the complexion of the act, and rendered the same unlawful, when, but for

the motive of the actor, it would have been clearly lawful. It is common

learning that a bad motive—such as an intent to hinder, delay, and

defraud creditors, by virtue of St. 13 Eliz. c. 5, and possibly by the

rules of the common law—will render a conveyance or transfer of property

void which, but for the bad motive, would have been valid. So, also, one

who sets the machinery of the law in motion without probable cause, and

for the sole purpose of injuring the reputation of another, or

subjecting him to loss and expense, is guilty of an unlawful act which

would have been lawful but for the improper motive. And one who, by

virtue of his situation, has a qualified privilege to make defamatory

statements concerning another, may be deprived of the benefit of that

privilege by proof that it was not exercised in good faith, but in

pursuance of a malicious intent to injure the person concerning whom the

defamatory statement or statements were made. Poll. Torts (Webb’s Ed.)

pp. 331–335, and cases there cited. There is also some authority for

saying that one who maliciously (that is, with intent to obtain some

personal benefit at another’s loss or expense) induces another to break

his contract with a third party thereby commits an actionable wrong if

special damage is disclosed, although the act done would have been

lawful if the wrongful motive had been absent. Lumley _v._ Gye, 2 El. &

Bl. 216; Bowen _v._ Hall, 6 Q. B. Div. 333; Walker _v._ Cronin, 107

Mass. 555. And see Poll. Torts (Webb’s Ed.) pp. 668–673. Aside from

cases of the latter kind, it is a general rule that the bad motive which

inspires an act will not change its complexion, and render it unlawful,

if otherwise the act was done in the exercise of an undoubted right. Or,

as has sometimes been said, “when an act done is, apart from the

feelings which prompted it, legal, the civil law ought to take no

cognizance of its motive.” The question as to how far and under what

circumstances a bad purpose will render an act actionable which,

considered by itself, and without reference to the purpose which

prompted it, is lawful, has been so much discussed since the decision in

Allen _v._ Flood, [1898] 1 App. Cas. 1, that it would be profitless to

indulge in further comment. It has been well observed that it would be

dangerous to the peace of society to admit the doctrine that any lawful

act can be transformed _prima facie_ into an actionable wrong by a

simple allegation that the act was inspired by malice or ill will, or by

an improper motive. It is wiser, therefore, to exclude any inquiry into

the motives of men when their actions are lawful, except in those cases

where it is well established that malice is an essential ingredient of

the cause of action, or in those cases where, the act done being

wrongful, proof of a bad motive will serve to exaggerate the damages.

The case at bar falls within neither of the exceptions to the general

rule above stated,—that, if an act is done in the exercise of an

undoubted right, and is lawful, the motive of the actor is immaterial.

No one can dispute the right of the defendant company to offer for sale

goods that it owned and were in its possession, whether the quantity was

great or small, for such a price as it deemed proper. This was the

outward visible act of which complaint is made, and, being lawful, the

law will not hold it to be otherwise because of a secret purpose

entertained by the defendant company to inflict loss on the plaintiff by

compelling it to reduce the cost of a certain kind of its prints or

calicoes.

Nor is the complaint aided in any respect by reference to the law of

conspiracy, since the only object that the defendants had in view which

the law will consider was the disposition or sale of certain goods which

the defendant corporation had the right to sell; and the means employed

to accomplish that end, namely, placing them on the market at a reduced

cost, were also lawful.

In the brief filed in behalf of the plaintiff in error it is suggested

finally that the complaint may be sustained on the ground that it states

a good cause of action for maliciously causing certain persons to break

or cancel their contracts with the plaintiff, but we think it quite

obvious that the complaint was not framed with a view of stating a cause

of action of that nature, and that it is insufficient for that purpose.

It does not give the name of any person or corporation with whom the

plaintiff had a contract for the sale of its prints which was

subsequently broken in consequence of the wrongful acts of the

defendant. Neither does it show that it had accepted any orders for

goods which the jobber was not privileged to cancel at his pleasure. Nor

does it allege any special damage incident to the breach of any

particular contract. In view of all the allegations which the complaint

contains it is manifest, we think, that it was framed with a view of

recovering on the broad ground that the issuance of the circular was

unlawful and actionable, provided the motive of the defendant company in

issuing it was to occasion loss or inconvenience to the plaintiff.

We are of opinion that the complaint did not state a cause of action, as

the trial court held, and the judgment below is therefore affirmed.

SANBORN, Circuit Judge (dissenting). I cannot concur in the opinion of

the majority in this case because the petition alleges that the

defendants by their advertisement of the goods manufactured by

plaintiff, without any legitimate trade purpose, prevented jobbers from

purchasing goods of the plaintiff, and caused those who had agreed to

purchase from it to cancel their orders unless the plaintiff would make

them a rebate, so that the plaintiff sustained damage in the sum of

$19,000. In my opinion, the gravamen of this cause of action is not the

malicious intent or purpose of the defendants, but it is their wrongful

act of interfering with the plaintiff’s business, of preventing sales

that it would have made, and of causing the cancellation of orders to,

or contracts of purchase from, the plaintiff already made. This act,

without any allegation or averment of intent or purpose, was itself

wrongful, unless it was done for a justifiable purpose. The act of

interfering with and injuring the trade or business of the plaintiff

without justifiable cause entitled the plaintiff to damages. It is

conceded that, if the defendants had advertised these prints for any

legitimate trade purpose, for the purpose of selling them for gain for

themselves, for the purpose of converting them into money because they

preferred their advertised price to the goods, or for the purpose of

competing in trade with the plaintiff, they would have had a justifiable

cause for inflicting upon it the damages of which it complains, and

these damages would then have been _damnum absque injuria_. But, if they

had advertised them for any of these purposes, this case would have

constituted an exception to the general rule of law. The general rule is

that whenever one injures a man’s business, profession, or occupation he

is liable for the damages he inflicts. The exception is that, where the

injury is caused by competition in trade or the lawful exercise of a

right which the inflictor has, then the injury is justifiable, and no

damages can be recovered. But, where such an injury is inflicted, the

presumption always is that the rule, and not the exception, applies,

and, if the inflictor would justify, he must show that he falls within

the exception. The question in this case, therefore, is not whether or

not the motive or intent of the defendants will make acts unlawful which

were otherwise lawful, but whether or not the intent and purpose of the

defendants will justify an otherwise unlawful act, and excuse them from

the payment of damages for which, under the general rule of law, they

are liable to the plaintiff. It is whether or not the petition shows

that they advertised the goods for legitimate trade purposes, so that

their acts fell within the exception, which justifies the infliction of

damages, and not under the general rule, which requires them to

compensate the plaintiff for the injury they have caused. The opinion of

the majority assumes that the defendants advertised the prints for a

legitimate trade purpose, so that their acts fell within the exception

to the general rule. It overlooks the legal presumption that injury to

one’s business entitles him to compensatory damages, and the plain

averment of the petition that the acts of the defendants were not done

for any justifiable cause, but were committed for the sole purpose of

inflicting upon the plaintiff the injury they caused.

[After quoting from the averments in the petition.]

Now, no one will dispute the rules of law that the plaintiff in this

action had the right to conduct its business of manufacturing and

selling prints without the injurious interference of strangers, and that

the defendants were subject to the universal rule that they must so use

their own property and rights as to inflict no unnecessary injury upon

their neighbors. The averments of this petition are that they were not

using any of their property or exercising any of their rights for any

legitimate trade purpose, but that they were using them for the express

purpose of inflicting injury upon the plaintiff, and that they succeeded

in imposing the infliction. These allegations seem to me to bring this

case under the general rule of law, and to clearly negative the claim

that it falls within the exception. They seem to state a good cause of

action.

[The learned Judge here cited, and quoted from, various authorities.]

The proposition is sustained by respectable authority; it is just, and I

believe it is sound,—that an action will lie for depriving a man of

custom (that is, of possible contracts), when the result is effected by

persuasion as well as when it is accomplished by fraud or force, if the

harm is inflicted without justifiable cause, such as competition in

trade. Walker _v._ Cronin, 107 Mass. 555, 565; Morasse _v._ Brochu, 151

Mass. 567, 25 N. E. 74, 8 L. R. A. 524; Hartnett _v._ Association, 169

Mass. 229, 235, 47 N. E. 1002, 38 L. R. A. 194; Delz _v._ Winfree, 80

Tex. 400, 405, 16 S. W. 111; Doremus _v._ Hennessy, 62 Ill. App. 391,

403; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485; Temperton

_v._ Russell, 62 Law J. (Q. B. Div. 1893) 412, 419.

Under the legal principles to which reference has been made, and under

the authorities which have been cited, the petition in this case states

a good cause of action for interference with and injury to the business

of the plaintiff by preventing it from obtaining custom it would

otherwise have obtained, without any justifiable cause or excuse, and

for this reason the demurrer should have been overruled, and the case

sent to trial.

There is another reason why the judgment below should be reversed. It is

that the petition sufficiently states a cause of action for maliciously

interfering with contracts between jobbers in St. Louis and the

plaintiff, and inducing the former to break their contracts to the

injury of the latter.

* * * * *

For the reasons which have now been briefly stated, the judgment below

should, in my opinion, be reversed, and the defendants should be

required to answer the petition.[583]

TUTTLE _v._ BUCK

SUPREME COURT, MINNESOTA, FEBRUARY 19, 1909.

_Reported in 107 Minnesota Reports, 145._

Action in the District Court for Wright County to recover $10,000

damages. Defendant demurred to the complaint on the ground it did not

state a cause of action. From an order, Buckham, J., overruling the

demurrer, defendant appealed. Affirmed.

This appeal was from an order overruling a general demurrer to a

complaint in which the plaintiff alleged:—

That for more than ten years last past he has been and still is a barber

by trade, and engaged in business as such in the village of Howard Lake,

Minnesota, where he resides, owning and operating a shop for the purpose

of his said trade. That until the injury hereinafter complained of his

said business was prosperous, and plaintiff was enabled thereby to

comfortably maintain himself and family out of the income and profits

thereof, and also to save a considerable sum per annum, to wit, about

$800. That the defendant, during the period of about twelve months last

past, has wrongfully, unlawfully, and maliciously endeavored to destroy

plaintiff’s said business, and compel plaintiff to abandon the same.

That to that end he has persistently and systematically sought, by false

and malicious reports and accusations of and concerning the plaintiff,

by personally soliciting and urging plaintiff’s patrons no longer to

employ plaintiff, by threats of his personal displeasure, and by various

other unlawful means and devices, to induce, and has thereby induced,

many of said patrons to withhold from plaintiff the employment by them

formerly given. That defendant is possessed of large means, and is

engaged in the business of a banker in said village of Howard Lake, at

Dassel, Minnesota, and at divers other places, and is nowise interested

in the occupation of a barber; yet in the pursuance of the wicked,

malicious, and unlawful purpose aforesaid, and for the sole and only

purpose of injuring the trade of the plaintiff, and of accomplishing his

purpose and threats of ruining the plaintiff’s said business and driving

him out of said village, the defendant fitted up and furnished a barber

shop in said village for conducting the trade of barbering. That failing

to induce any barber to occupy said shop on his own account, though

offered at nominal rental, said defendant, with the wrongful and

malicious purpose aforesaid, and not otherwise, has during the time

herein stated hired two barbers in succession for a stated salary, paid

by him, to occupy said shop, and to serve so many of plaintiff’s patrons

as said defendant has been or may be able by the means aforesaid to

direct from plaintiff’s shop. That at the present time a barber so

employed and paid by the defendant is occupying and nominally conducting

the shop thus fitted and furnished by the defendant, without paying any

rent therefor, and under an agreement with defendant whereby the income

of said shop is required to be paid to defendant, and is so paid in

partial return for his wages. That all of said things were and are done

by defendant with the sole design of injuring the plaintiff, and of

destroying his said business, and not for the purpose of serving any

legitimate interest of his own. That by reason of the great wealth and

prominence of the defendant, and the personal and financial influence

consequent thereon, he has by the means aforesaid, and through other

unlawful means and devices by him employed, materially injured the

business of the plaintiff, has largely reduced the income and profits

thereof, and intends and threatens to destroy the same altogether, to

plaintiff’s damage in the sum of $10,000.[584]

ELLIOTT, J. (after stating the facts as above).

In has been said that the law deals only with externals, and that a

lawful act cannot be made the foundation of an action because it was

done with an evil motive. In Allen _v._ Flood, [1898] A. C. 1, 151, Lord

Watson said that, except with regard to crimes, the law does not take

into account motives as constituting an element of civil wrong. In Mayor

_v._ Pickles, [1895] A. C. 587, Lord Halsbury stated that if the act was

lawful, “however ill the motive might be, he had a right to do it.” In

Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl. 53, 33 L. R. A. 225, 54 Am.

St. 882, the court said that, “when one exercises a legal right only,

the motive which actuates him is immaterial.” In Jenkins _v._ Fowler, 24

Pa. St. 308, Mr. Justice Black said that “malicious motives make a bad

act worse, but they cannot make that wrong which, in its own essence, is

lawful.” This language was quoted in Bohn Mnfg. Co. _v._ Hollis, 54

Minn. 223, 233, 55 N. W. 1119, 21 L. R. A. 337, 40 Am. St. 319, and in

substance in Ertz _v._ Produce Exchange, 79 Minn. 140, 143, 81 N. W.

737, 48 L. R. A. 90, 79 Am. St. 433. See also 2 Cooley, Torts (3d Ed.)

1505; Auburn _v._ Douglass, 9 N. Y. 444.

Such generalizations are of little value in determining concrete cases.

They may state the truth, but not the whole truth. Each word and phrase

used therein may require definition and limitation. Thus, before we can

apply Judge Black’s language to a particular case, we must determine

what act is “in its own essence lawful.” What did Lord Halsbury mean by

the words “lawful act”? What is meant by “exercising a legal right”? It

is not at all correct to say that the motive with which an act is done

is always immaterial, providing the act itself is not unlawful. Numerous

illustrations of the contrary will be found in the civil as well as the

criminal law.

We do not intend to enter upon an elaborate discussion of the subject,

or become entangled in the subtleties connected with the words “malice”

and “malicious.” We are not able to accept without limitations the

doctrine above referred to, but at this time content ourselves with a

brief reference to some general principles.

It must be remembered that the common law is the result of growth, and

that its development has been determined by the social needs of the

community which it governs. It is the resultant of conflicting social

forces, and those forces which are for the time dominant leave their

impress upon the law. It is of judicial origin, and seeks to establish

doctrines and rules for the determination, protection, and enforcement

of legal rights. Manifestly it must change as society changes and new

rights are recognized. To be an efficient instrument, and not a mere

abstraction, it must gradually adapt itself to changed conditions.

Necessarily its form and substance have been greatly affected by

prevalent economic theories.

For generations there has been a practical agreement upon the

proposition that competition in trade and business is desirable, and

this idea has found expression in the decisions of the courts as well as

in statutes. But it has led to grievous and manifold wrongs to

individuals, and many courts have manifested an earnest desire to

protect the individual from the evils which result from unrestrained

business competition. The problem has been to so adjust matters as to

preserve the principle of competition and yet guard against its abuse to

the unnecessary injury to the individual. So the principle that a man

may use his own property according to his own needs and desires, while

true in the abstract, is subject to many limitations in the concrete.

Men cannot always, in civilized society, be allowed to use their own

property as their interests or desires may dictate without reference to

the fact that they have neighbors whose rights are as sacred as their

own. The existence and well-being of society require that each and every

person shall conduct himself consistently with the fact that he is a

social and reasonable person. The purpose for which a man is using his

own property may thus sometimes determine his rights; and applications

of this idea are found in Stillwater Water Co. _v._ Farmer, 89 Minn. 58,

93 N. W. 907, 60 L. R. A. 875, 99 Am. St. 541, Id., 92 Minn. 230, 99 N.

W. 882, and Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R.

A. 255, 100 Am. St. 365.

Many of the restrictions which should be recognized and enforced result

from a tacit recognition of principles which are not often stated in the

decisions in express terms. Sir Frederick Pollock notes that not many

years ago it was difficult to find any definite authority for stating as

a general proposition of English law that it is wrong to do a wilful

wrong to one’s neighbor without lawful justification or excuse. But

neither is there any express authority for the general proposition that

men must perform their contracts. Both principles, in this generality of

form and conception, are modern, and there was a time when neither was

true. After developing the idea that law begins, not with authentic

general principles, but with the enumeration of particular remedies, the

learned writer continues: “If there exists, then, a positive duty to

avoid harm, much more must there exist the negative duty of not doing

wilful harm, subject, as all general duties must be subject, to the

necessary exceptions. The three main heads of duty with which the law of

torts is concerned, namely, to abstain from wilful injury, to respect

the property of others, and to use due diligence to avoid causing harm

to others, are all alike of a comprehensive nature.” Pollock, Torts (8th

Ed.), p. 21. He then quotes with approval the statement of Lord Bowen

that “at common law there was a cause of action whenever one person did

damage to another, wilfully and intentionally, without just cause or

excuse.”

In Plant _v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79

Am. St. 330, Mr. Justice Hammond said: “It is said also that, where one

has the lawful right to do a thing, the motive by which he is actuated

is immaterial. One form of this statement appears in the first head-note

in Allen _v._ Flood, as reported in [1898] A. C. 1, as follows: ‘An act

lawful in itself is not converted by a malicious or bad motive into an

unlawful act so as to make the doer of the act liable to a civil

action.’ If the meaning of this and similar expressions is that where a

person has the lawful right to do a thing irrespective of his motive,

his motive is immaterial, the proposition is a mere truism. If, however,

the meaning is that where a person, if actuated by one kind of a motive,

has a lawful right to do a thing, the act is lawful when done under any

conceivable motive, or that an act lawful under one set of circumstances

is therefore lawful under every conceivable set of circumstances, the

proposition does not commend itself to us as either logically or legally

accurate.”

Similar language was used by Mr. Justice Wells in Walker _v._ Cronin,

107 Mass. 555; by Lord Coleridge in Mogul Steamship Co. _v._ McGregor,

21 Q. B. Div. 544–553; by Lord Justice Bowen in the same case, 23 Q. B.

Div. 593; by Mr. Justice Holmes in Aikens _v._ Wisconsin, 195 U. S. 194,

204, 25 Sup. Ct. 3, 49 L. Ed. 154; by Chief Justice McSherry, in Klingel

_v._ Sharp, 104 Md. 233, 64 Atl. 1029, 7 L. R. A. (N. S.) 976, 118 Am.

St. 399; and by Judge Sanborn in his dissenting opinion in Passaic Print

Works _v._ Ely & Walker Dry Goods Co., 105 Fed. 163, 44 C. C. A. 426, 62

L. R. A. 673. Numerous cases will be found referred to in the note to

this case in 62 L. R. A. 673, and in an article in 18 Harvard Law Rev.

411.

It is freely conceded that there are many decisions contrary to this

view; but, when carried to the extent contended for by the appellant, we

think they are unsafe, unsound, and illy adapted to modern conditions.

To divert to one’s self the customers of a business rival by the offer

of goods at lower prices is in general a legitimate mode of serving

one’s own interest, and justifiable as fair competition. But when a man

starts an opposition place of business, not for the sake of profit to

himself, but regardless of loss to himself, and for the sole purpose of

driving his competitor out of business, and with the intention of

himself retiring upon the accomplishment of his malevolent purpose, he

is guilty of a wanton wrong and an actionable tort. In such a case he

would not be exercising his legal right, or doing an act which can be

judged separately from the motive which actuated him. To call such

conduct competition is a perversion of terms. It is simply the

application of force without legal justification, which in its moral

quality may be no better than highway robbery.

Nevertheless, in the opinion of the writer this complaint is

insufficient. It is not claimed that it states a cause of action for

slander. No question of conspiracy or combination is involved. Stripped

of the adjectives and the statement that what was done was for the sole

purpose of injuring the plaintiff, and not for the purpose of serving a

legitimate purpose of the defendant, the complaint states facts which in

themselves amount only to an ordinary every day business transaction.

There is no allegation that the defendant was intentionally running the

business at a financial loss to himself, or that after driving the

plaintiff out of business the defendant closed up or intended to close

up his shop. From all that appears from the complaint he may have opened

the barber shop, energetically sought business from his acquaintances

and the customers of the plaintiff, and as a result of his enterprise

and command of capital obtained it, with the result that the plaintiff,

from want of capital, acquaintance, or enterprise, was unable to stand

the competition and was thus driven out of business. The facts thus

alleged do not, in my opinion, in themselves, without reference to the

way in which they are characterized by the pleader, tend to show a

malicious and wanton wrong to the plaintiff.

A majority of the justices, however, are of the opinion that, on the

principle declared in the foregoing opinion, the complaint states a

cause of action, and the order is therefore affirmed.

Affirmed.

JAGGARD, J., dissents.[585]

WEAVER, J., IN DUNSHEE _v._ STANDARD OIL COMPANY

(1911) _152 Iowa Reports, 618._

As we understand appellants’ contention, it is that their conduct did

not transgress the bounds of legitimate competition, and that so long

as they kept within this limitation the question of the alleged malice

or motive inspiring their acts is wholly immaterial. Cases involving

the question thus suggested have frequently arisen, both in this

country and in England, and there is much in harmony in the

expressions of judicial opinion thereon. Many authorities may be found

holding without apparent qualification or exception, that the law

takes no account whatever of motives as constituting an element of

civil wrong. In other words, if a man do a thing which is otherwise

lawful, the fact that he does it maliciously and for the express

purpose of injuring his neighbor affords the latter no remedy at law.

Such is the net effect of Raycroft _v._ Tayntor, 68 Vt. 219, 35 Atl.

53, 33 L. R. A. 225, 54 Am. St. Rep. 882; Jenkins _v._ Fowler, 24 Pa.

308, and others of that class. If this be the correct view of the law,

a man may excavate the earth near the boundary of his own land for the

mere purpose of seeing the foundation of the house of his neighbor

slide into the pit thus prepared for it; he may dig through his own

soil to the subterranean sources of his neighbor’s spring or well and

divert the water into a ditch, where it will serve no purpose of use

or profit to himself or any one else; if a banker or merchant, he may

punish the blacksmith who refuses to patronize him by temporarily

establishing a shop on the next lot and hiring men to shoe horses

without money and without price, until he has driven the offending

smith to come to his terms or to go out of business; and if a farmer,

dependent upon a subterranean supply of water for the irrigation of

his soil or watering of his live stock, he may contrive to ruin his

competing neighbor by wasting the surplus not reasonably required for

his own use. The laws of competition in business are harsh enough at

best; but if the rule here suggested were to be carried to its logical

and seemingly unavoidable extreme there is no practical limit to the

wrongs which may be justified upon the theory that “it is business.”

Fortunately, we think, there has for many years been a distinct and

growing tendency of the courts to look beneath the letter of the law

and give some effect to its beneficent spirit, thereby preventing the

perversion of the rules intended for the protection of human rights

into engines of oppression and wrong. It is doubtless true that under

many circumstances an act is legally right and defensible without

regard to the motive which induces or characterizes it; but there is

abundance of authority for saying that this is by no means the

universal rule, and that an act which is legally right when done

without malice may become legally wrong when done maliciously,

wantonly, or without reasonable cause. In Panton _v._ Holland, 17

Johns. (N. Y.) 92, 8 Am. Dec. 369, it is stated as a general rule

that, “In the exercise of a lawful right, a party may become liable to

an action where it appears that the act was done maliciously.” See

also, Greenleaf _v._ Francis, 18 Pick. (Mass.) 117; Chesley _v._ King,

74 Me. 164, 43 Am. Rep. 569; Flaherty _v._ Moran, 81 Mich. 52, 45 N.

W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510; Sankey _v._ St. Marys, 8

Mont. 265, 21 Pac. 23; Harbison _v._ White, 46 Conn. 106; Stillwater

_v._ Farmer, 89 Minn. 58, 93 N. W. 907, 60 L. R. A. 875, 99 Am. St.

Rep. 541; Ohio Oil Company _v._ Indiana, 150 Ind. 698, 50 N. E. 1124;

Barclay _v._ Abraham, 121 Iowa, 619, 96 N. W. 1080, 64 L. R. A. 255,

100 Am. St. Rep. 365. The same principle has been frequently applied

in the decision of trade and labor controversies, though not without

other instances in which it has been repudiated. See People _v._

Petheram, 64 Mich. 252, 31 N. W. 188; Walker _v._ Cronin, 107 Mass.

555; Van Horn _v._ Van Horn, 52 N. J. Law, 284, 20 Atl. 485, 10 L. R.

A. 184; Hawarden _v._ Coal Co., 111 Wis. 545, 87 N. W. 472, 55 L. R.

A. 828; Graham _v._ Railroad Co., 47 La. Ann. 214, 16 South. 806, 27

L. R. A. 416, 49 Am. St. Rep. 366; Tuttle _v._ Buck, 107 Minn. 145,

119 N. W. 946, 22 L. R. A. (N. S.) 599, 131 Am. St. Rep. 446; Plant

_v._ Woods, 176 Mass. 492, 57 N. E. 1011, 51 L. R. A. 339, 79 Am. St.

Rep. 330; Barr _v._ Council, 53 N. J. Eq. 101, 30 Atl. 881; Toledo,

&c. Ry. Co. _v._ Penn. Co., (C. C.) 54 Fed. 730, 19 L. R. A. 387;

Stevens _v._ Kelly, 78 Me. 445, 6 Atl. 868, 57 Am. Rep. 813; Purington

_v._ Hinchcliffe, 219 Ill. 159, 76 N. E. 47, 2 L. R. A. (N. S.) 824,

109 Am. St. Rep. 322. In the Van Horn Case, _supra_, the court says:

“While a trader may engage in the sharpest competition with those in

like business by holding out extraordinary inducements, ... yet, when

he oversteps that line and commits an act with the malicious intent of

inflicting injury upon his rival’s business, his conduct is illegal,

and if damage results from it the injured party is entitled to

redress. Nor does it matter whether the wrong-doer effects his object

by persuasion or by false representation. The court looks through the

instrumentality or means used to the wrong perpetrated with the

malicious intent and bases the right of action on that.” Quoting this

language in Barr _v._ Council, _supra_, the same court adds: “The

right of action depends, then, not so much upon the nature of the act,

as upon the intent with which it is done, always assuming that injury

has attended the doing of it.” In Parkinson _v._ Council, 154 Cal.

581, 98 Pac. 1027, 21 L. R. A. (N. S.) 550, the court, while reaching

the opposite conclusion generally, concedes it to be the law that:

“Any injury to a lawful business, whether the result of conspiracy or

not, is _prima facie_ actionable, but may be defended on the ground

that it was merely a lawful effort of the defendants to promote their

own welfare. To defeat this plea of justification, the plaintiff may

offer evidence that the acts of the defendants were inspired by

express malice, and were done for the purpose of injuring the

plaintiff, and not to benefit themselves.”

Dealing with the perplexities arising in the effort to sustain, on the

one hand, the widest practicable liberty of men to engage in any and

every line of business, and, on the other, to protect the business of

each from wrongful encroachment or interference by others, the New

Hampshire court after reference to many of the decided cases, has

lately said: “The more recent authorities reason that, as the right to

deal or not to deal with others is inherent in the idea of Anglo-Saxon

liberty, _prima facie_ a man may demand an open market, and, since

this is so, one who interferes with this open market must justify his

acts, or respond in damages. Thus far these authorities are uniform,

but when they proceed to the determination of what amounts to a

justification they differ widely. The cause is not far to seek. The

rule they apply is that of reasonable conduct; yet they decide each

case as though it involved only a question of law. In reality, the

issue is largely one of fact, and the result is what would be

expected. Judges are men, and their decisions upon complex facts must

vary as those of juries might on the same facts. Calling one

determination an opinion and the other a verdict does not alter human

nature, nor make that uniform and certain which from its nature must

remain variable and uncertain. While these cases go too far in what

they decide as questions of law, yet the test they constantly declare

they are applying is the true one. The standard is reasonable conduct

under all the circumstances of the case.” Huskie _v._ Griffin, 75 N.

H. 345, 74 Atl. 595, 27 L. R. A. (N. S.) 966. See, also, Doremus _v._

Hennesy, 176 Ill. 608, 52 N. E. 924, 54 N. E. 524, 43 L. R. A. 797,

802, 68 Am. St. Rep. 203; Horan _v._ Burns, 72 N. H. 93, 54 Atl. 945,

62 L. R. A. 602, 101 Am. St. Rep. 670; Ertz _v._ Produce Exchange, 79

Minn. 140, 81 N. W. 737, 48 L. R. A. 90, 79 Am. St. Rep. 433. As

suggested in the foregoing quotation, no definition or standard of

reasonable cause can be stated which will insure absolute uniformity

or even consistency in the decision of such cases, because the issue

presented is in its essence one of fact, and the same facts and

circumstances will not always appeal with like effect to the minds of

all jurors or of all judges. It is for this reason that, save in those

exceptional cases where the case of the plaintiff or the defendant is

so clear and undisputable that all fair-minded persons are forced to

the same conclusion, controversies of this nature, in a trial at law,

are for the jury, and not for the court.

Coming to the case in hand, we may concede to the appellants the

undoubted right to establish a retail oil business in Des Moines, to

employ agents and drivers, and send them out over the same routes and

make sales to the same people with whom the Crystal Oil Company was

dealing; but in so doing it was bound to conduct such business with

reasonable regard and consideration for the equal right of the Crystal

Company to continue supplying oil to such of its customers as desired

to remain with it. If, however, there was no real purpose or desire to

establish a competing business, but, under the guise or pretence of

competition, to accomplish a malicious purpose to ruin the Crystal

Company or drive it out of business, intending themselves to retire

therefrom when their end had been secured, then they can claim no

immunity under the rules of law which recognize and protect

competition between dealers in the same line of business seeking in

good faith the patronage of the same people. And if, under such

pretence of competition, defendants maliciously interfered with the

business of the Crystal Oil Company, in the manner charged, and injury

to the latter was thereby inflicted, a right of action exists for the

recovery of damages. It may be conceded that authorities are not

wanting to sustain the position that, even though the Standard Oil

Company had no intention of becoming a retail dealer in oil in Des

Moines, but entered the business of selling oil in this manner

temporarily, for the sole purpose of driving the Crystal Company out,

it is a matter into which the courts will not inquire; but we think

such precedents are out of harmony with fundamental principles of

justice, which, as we have said, underlie the law, as well as out of

harmony with the later and better-considered cases. True the Standard

Company, as a wholesale dealer, would violate no law in offering its

product for sale at retail at half price in the territory supplied by

the Crystal Company, but such fact, if proven, would have a distinct

bearing upon the reasonableness of its methods employed in diverting

trade from said company, as well as upon the charge that in

interfering between the Crystal Company and its customers the Standard

Company was actuated by malice or spirit of wanton assault upon the

business of another, who had given it offence.[586]

KUZNIAK _v._ KOZMINSKI

SUPREME COURT, MICHIGAN, DECEMBER 17, 1895.

_Reported in 107 Michigan Reports, 444._

Bill by John Kuzniak against Jacob Kozminski and Frances Kozminski to

abate an alleged nuisance. From a decree for complainant, defendants

appeal. Reversed.

LONG, J. The parties to this cause own adjoining lots in the city of

Grand Rapids. Defendants’ lot is on the southeasterly corner of Eleventh

and Muskegon streets, and upon which is a large tenement house facing

both streets. The complainant owns the lot immediately south and

adjoining the defendants’, and upon which he has a dwelling house facing

Muskegon street, and also a tenement house about 60 feet back from

Muskegon street, and within 22 inches of the north line, being the line

of defendants’ lot. At the time this tenement house was erected,

defendants had upon their lot what was called a “chicken shed”; and,

after complainant’s tenement house was erected, defendants moved this

chicken shed upon a part of their lot directly opposite complainant’s

tenement house, and within 24 inches of the lot line, and converted it

into a coal and wood house for the use of their tenants, who occupied

the dwelling on said lot. This bill was filed by complainant for the

purpose of having this coal and wood house of defendants declared a

nuisance, and to compel them to remove the same. The claim made by the

bill is that the defendants removed the building to that place through

spite and from a malicious motive, and not because it was needed for any

useful purpose. Defendants answered the bill, denying that they were

actuated by malice in putting the building there, and averred that it

was so placed for the use of their tenants for wood and coal. The

testimony was taken in open court, and the court found that the building

was a nuisance, and a decree was entered directing the defendants to

remove the building within 60 days from the date of the decree, and

that, in default of such removal, the sheriff of the county remove the

same, at the cost and expense of defendants. The complainant was awarded

the costs of the suit. Defendants appeal.

It was held in Flaherty _v._ Moran, 81 Mich. 52, that a fence erected

maliciously, and with no other purpose than to shut out the light and

air from a neighbor’s window, was a nuisance, and the decree of the

court below ordering its removal was affirmed; but that decision was

placed on the ground that the fence served no useful purpose, and was

erected solely from a malicious motive. In the present case the building

erected by the defendants was for a useful purpose; and, while there may

have been some malice displayed in putting it so near the complainant’s

house as to shut off some of the light, that would not be a sufficient

reason upon which to found a right in complainant to have the building

removed. Defendants had a right to erect a building upon their own

premises, and the decisions have been quite uniform to the effect that

the motives of a party in doing a legal act cannot form the basis upon

which to found a remedy. In Allen _v._ Kinyon, 41 Mich. 282, it was held

that the motive is of no consequence when the party does not violate the

rights of another. In Hawkins _v._ Sanders, 45 Mich. 491, it was held

that there was no right of prospect which would prevent the erection of

an awning on a neighboring lot. The case does not fall within the rule

of Flaherty _v._ Moran, _supra_, and the court below was in error in

directing the removal of the building. That decree must be reversed, and

a decree entered here dismissing complainant’s bill, with costs of both

courts to the defendants.

The other Justices concurred.[587]

HORAN _v._ BYRNES

SUPREME COURT, NEW HAMPSHIRE, APRIL 7, 1903.

_Reported in 72 New Hampshire Reports, 93._

Case, under sections 28 and 29, chapter 143, Public Statutes, for

maintaining a structure in the nature of a fence, in violation of the

statute.

Upon the trial, defendant moved for a nonsuit, on the ground that the

statute is unconstitutional. The motion was denied, and defendant

excepted.

Verdict for the plaintiff.[588]

PARSONS, C. J. “Any fence or other structure in the nature of a fence,

unnecessarily exceeding five feet in height, erected or maintained for

the purpose of annoying the owners or occupants of adjoining property,

shall be deemed a private nuisance.

“Any owner or occupant, injured either in his comfort or the enjoyment

of his estate by such nuisance, may have an action of tort for the

damage sustained thereby.

“If the plaintiff recovers judgment in the action, the defendant shall

cause the removal of the nuisance within thirty days from the date of

the judgment, and for each day he shall permit the nuisance to remain

after the expiration of said thirty days he shall incur a penalty of ten

dollars for the use of the party injured.” P. S. c. 143, ss. 28, 29, 30.

The act forbids the use by one landowner of his land for the unnecessary

erection of a fence exceeding five feet in height, when the purpose of

such unnecessary height is the annoyance of the adjoining owner or

occupant, if such unnecessary height injures the adjoining owner in his

comfort or the enjoyment of his estate. The claim of the defendant in

support of his motion for a nonsuit, that the statute is

unconstitutional, raises the question whether the statutory prohibition

is an interference with the defendant’s “natural, essential, and

inherent” right of “acquiring, possessing, and protecting property,” or

deprives him of that protection in its enjoyment, which is the right of

“every member of the community.” Bill of Rights, arts. 2, 12.

* * * * *

The constitutional objection made to the present statute raises the

question, if it appears that the statute is an interference with the

defendant’s property right, whether the interference is or not one which

the legislature might properly make as a regulation of the use of

property. The constitutionality of similar statutes has been upheld upon

the latter ground, as being merely a small limitation of existing rights

incident to property, which under the police power may be imposed for

the sake of preventing a manifest evil. “It is hard,” it has been said,

“to imagine a more insignificant curtailment of the rights of property.”

Rideout _v._ Knox, 148 Mass. 368, 372, 373; Karasek _v._ Peier, 22 Wash.

419; Western &c. Co. _v._ Knickerbocker, 103 Cal. 111. Similar statutes

in Maine, Vermont, and Connecticut have been before the courts, but it

has not been suggested that the power of the legislature to adopt them

has been attacked in those states. Lord _v._ Langdon, 91 Me. 221;

Harbison _v._ White, 46 Conn. 106; Gallagher _v._ Dodge, 48 Conn. 387,

40 L. R. A. 181–183, note.

The present statute was passed in 1887. Laws 1887, c. 91. In Hunt _v._

Coggin, 66 N. H. 140, the verdict was for the defendant; and in Horan

_v._ Byrnes, 70 N. H. 531, the defendant waived any objection to the

statute upon this ground. In Lovell _v._ Noyes, 69 N. H. 263, the

question was whether a building was within the terms of the statute. The

constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present

are within the constitutional exercise of the police power, involving

for the general good some slight limitation of existing property rights,

that if one incident of the property right in real estate is the right

to use it maliciously for the sole purpose of injuring another, it is as

much an invasion of the right to take it from a small portion as from

the whole of one’s property; and that the matter in question concerns

private individuals and not the public in general, and hence does not

come within the police power. State _v._ White, 64 N. H. 48, 50. It may

be thought these objections are successfully answered in the cases

cited, or that, if not there answered, a satisfactory answer can be

found. But a discussion of these objections does not reach the

fundamental question in the case.

“The statute was designed to prevent an act the sole effect of which

would be to annoy or injure another.” Lovell _v._ Noyes, 69 N. H. 263.

The primary question, therefore, is whether one’s right to use property

solely to injure another is a part of his property right in real estate,

which is so protected by the constitution that the prohibition of such

use is not within the general power of legislation “for the benefit and

welfare of this state and for the governing and ordering thereof.”

Const. art. 5. Upon the question whether a fence on or near the division

line between adjoining landowners, maliciously built to an unreasonable

height for the sole purpose of annoying and injuring the adjoining owner

or occupant, is a nuisance which can in the absence of statutory

authority be abated by an injunction, the courts are in conflict. Letts

_v._ Kessler, 54 Ohio St. 73, answers the question in the negative,

while an opposite conclusion is reached in Michigan. Burke _v._ Smith,

69 Mich. 380; Flaherty _v._ Moran, 81 Mich. 52; Kirkwood _v._ Finegan,

95 Mich. 543. In Rideout _v._ Knox, 148 Mass. 368, and Karasek _v._

Peier, 22 Wash. 419, cases in which the power of the legislature to

enact a statute similar to that under consideration is attacked and

upheld, it is conceded “that to a large extent the power to use one’s

property malevolently, in any way which would be lawful for other ends,

is an incident of property which cannot be taken away even by

legislation.” Rideout _v._ Knox, _supra_, 372.

The conclusion that a landowner’s property right in real estate includes

the right to use it solely for the injury and annoyance of his neighbor,

without intending to subserve any useful purpose of his own, is “based

upon a narrow view of the effect of the land titles,” and is reached “by

the strict enforcement of a technical rule of ownership briefly

expressed in an ancient maxim,” _cujus est solum, ejus est usque ad

coelum_. The courts of this state have had in some respects, at least, a

different understanding of the elements of land-ownership. As to the use

of land in the control of surface water, the enjoyment of water

percolating beneath the surface, and the use generally that may be

rightfully made of real estate by the owner or occupant, the test has

been considered to be not merely whether the act was an exercise of

dominion on the land regardless of the injury to other land, but the

reasonableness of the use under all the circumstances, including the

necessity and advantage to one and the unavoidable injury to the other.

Franklin _v._ Durgee, 71 N. H. 186; Ladd _v._ Brick Co., 68 N. H. 185;

Swett _v._ Cutts, 50 N. H. 439; Bassett _v._ Company, 43 N. H. 569, 577.

It has been said that the rule of absolute dominion is easier of

application. Chase _v._ Silverstone, 62 Me. 175, 183. This view,

however, does not seem to be upheld by the difficulties met in its

application in reference to surface waters. See Franklin _v._ Durgee, 71

N. H. 186, 189. But however that may be, difficulty in administration is

not a sufficient reason for the denial of justice. Cases like Chatfield

_v._ Wilson, 28 Vt. 49, and Phelps _v._ Nowlen, 72 N. Y. 39, in which

the principle of the maxim relied upon is applied to waters in the soil,

are not authority here, where a contrary view is entertained. Franklin

_v._ Durgee and Bassett _v._ Company, _supra_.

Aside from the authorities in cases in which the control of waters was

in question, the leading case appears to be Mahan _v._ Brown, 13 Wend.

261. Here, although the plaintiff alleged that the fence complained of

was erected solely to injure her, the decision is upon the ground that

by the erection of the fence the plaintiff is deprived of no right, but

is merely prevented from acquiring a right. If by enjoyment of light and

air across his neighbor’s land for the prescriptive period a landowner

could acquire a right to such enjoyment, the building of a fence as an

assertion of a contrary right and to prevent the acquiring of such

easement would be a building for a necessary and useful purpose, and not

for the sole purpose of annoying another. The case standing upon a view

of the effect of non-user of a right to build, now generally abandoned

in this country (Wash. Ease. 490, 497, 498), is not of value in the

present discussion. The argument generally is, that the motive with

which one does an act otherwise lawful is immaterial; and hence, as it

must be conceded that a landowner has the right to build on his land as

he conceives may best subserve his interests, the act lawful for a

useful purpose is not made unlawful and a nuisance merely by the intent

accompanying it.

Whether the first proposition is entirely true may perhaps be doubted.

Cases cited to support the proposition (Walker _v._ Cronin, 107 Mass.

555; Phelps _v._ Nowlen, 72 N. Y. 39) do not support it in its entirety.

See Chesley _v._ King, 74 Me. 164. In Houston _v._ Laffee, 46 N. H. 505,

which was trespass for cutting an aqueduct pipe maintained by the

plaintiff upon the defendant’s land by a parol license, it was held that

if the cutting of the pipe was done simply for the purpose of putting an

end to the license, and without any malice or intentional wrong, the

defendant would not be liable; but if the pipe was cut “wantonly,

unnecessarily, maliciously, and with a view ... to injure the

plaintiff,” the defendant would be liable. It is true that an act which

one has the right to do under all circumstances, like the bringing of a

suit upon a valid claim (Friel _v._ Plumer, 69 N. H. 498), cannot be

made actionable by the motive which accompanies it. But as applied to

the use of real estate the argument begs the question which is whether

the enjoyment of real estate includes the right to use it solely to

injure another. Because when employed for a useful purpose such use may

rightfully injure another, it does not follow that the same use for a

wrongful purpose may also rightfully injure another, except upon the

theory of absolute dominion, for the character of the use is an element

of the right.

“As a general proposition, it is safe to say that the owner of land has

a right to make a reasonable use of his property; and that right extends

as well to an unlimited distance above the earth’s surface as to an

unlimited distance below. He may not only dig for a foundation and a

cellar as deep as he pleases, but he may erect his building as high as

he pleases into the air, subject all the time, of course, to a proper

application of the doctrine contained in the maxim, _sic utere tuo ut

alienum non lædas_. The erection and maintenance of buildings for

habitation or business is a customary and reasonable use of land. Of

course the landowner, in making such erections, must be held to the

exercise of all due care against infringing the legal rights of others,

to be determined by the nature of the rights and interests to be

affected, and all the circumstances of each particular case.” Ladd, J.,

in Garland _v._ Towne, 55 N. H. 55, 58.

“Property in land must be considered, for many purposes, not as an

absolute, unrestricted dominion, but as an aggregation of qualified

privileges, the limits of which are prescribed by the equality of rights

and the correlation of rights and obligations necessary for the highest

enjoyment of land by the entire community of proprietors.... The soil is

often called property, and this use of language is sufficiently accurate

for some purposes. But the proposition that the soil is property conveys

a very imperfect idea of the numerous and variously limited rights

comprised in landed estate; and it is sometimes necessary to remember

that the name of property belongs to some of the essential proprietary

rights vested in the person called the owner of the soil.... So these

proprietary rights, which are the only valuable ingredients of a

landowner’s property, may be taken from him, without an asportation or

adverse personal occupation of that portion of the earth which is his in

the limited sense of being the subject of certain legally recognized

proprietary rights which he may exercise for a short time.... One of

Eaton’s proprietary rights was the correlative of R.’s duty of

abstaining from such a use of air and water, and from such an

interference with their quality and circulation, as would be

unreasonable and injurious to the enjoyment of Eaton’s farm.” Thompson

_v._ Androscoggin Co., 54 N. H. 545, 551, 552, 554. “Excavations

maliciously made in one’s own land, with a view to destroy a spring or

well in his neighbor’s land, could not be regarded as reasonable.” Swett

_v._ Cutts, 50 N. H. 439, 447.

“If a man has no right to dig a hole upon his premises, not for any

benefit to himself or his premises, but for the express purpose of

destroying his neighbor’s spring, why can he be permitted to shut out

light and air from his neighbor’s windows maliciously, and without

profit or benefit to himself? By analogy, it seems to me that the same

principle applies in both cases, and that the law will interpose and

prevent the wanton injury in both cases.... It must be remembered that

no man has a legal right to make a malicious use of his property ... for

the avowed purpose of damaging his neighbor. To hold otherwise would

make the law a convenient engine in cases like the present to injure and

destroy the peace and comfort, and to damage the property, of one’s

neighbor, for no other than a wicked purpose, which in itself is or

ought to be unlawful. The right to do this cannot, in an enlightened

country, exist either in the use of property or in any way or manner....

The right to breathe the air, and to enjoy the sunshine, is a natural

one; and no man can pollute the atmosphere, or shut out the light of

heaven, for no better reason than that the situation of his property is

such that he is given the opportunity of so doing, and wishes to gratify

his spite and malice towards his neighbor.” Morse, J., in Burke _v._

Smith, 69 Mich. 380, approved and unanimously adopted in Flaherty _v._

Moran, 81 Mich. 52, above cited.

“While one may in general put his property to any use he pleases not in

itself unlawful, his neighbor has the same right to the undisturbed

enjoyment of his adjoining property.... What standard does the law

provide?... Whatever may be the law in other jurisdictions, it must be

regarded as settled in this state that the test is the reasonableness or

unreasonableness of the business in question under all the

circumstances.” Ladd _v._ Brick Co., 68 N. H. 185,186. “The common-law

right of the ownership of land, in its relationship to the control of

surface water, as understood by the courts of this state for many years,

does not sanction or authorize practical injustice to one landowner by

the arbitrary and unreasonable exercise of the right of dominion by

another” (Franklin _v._ Durgee, _supra_), but makes the test of the

right the reasonableness of the use under all the circumstances. In such

case the purpose of the use, whether understood by the landowner to be

necessary or useful to himself, or merely intended to harm another, may

be decisive upon the question of right. It cannot be justly contended

that a purely malicious use is a reasonable use. The question of

reasonableness depends upon all the circumstances—the advantage and

profit to one of the use attacked, and the unavoidable injury to the

other. Where the only advantage to one is the pleasure of injuring

another, there remains no foundation upon which it can be determined

that the disturbance of the other in the lawful enjoyment of his estate

is reasonable or necessary. There is no sound ground upon which a

distinction can be made against the plaintiff’s right to use his land

for the enjoyment of the air and light which naturally come upon it, in

favor of his right to use it to enjoy the waters which naturally flow

upon or under it, except the fact that the use of land for buildings

necessarily cuts off air and light from the adjoining estate. The fact

that the improvement of real estate in this way for a useful purpose,

universally conceded to be reasonable, may affect the adjoining owner’s

enjoyment of his estate to the same extent as a like act done solely to

injure the other, is not a sufficient reason for distinguishing the

right to build upon the surface from the right to dig below it or to

control the surface itself. Jurisdictions which reject the doctrine of

reasonable necessity, reasonable care, and reasonable use, which

“prevail in this state in a liberal form, on a broad basis of general

principle” (Haley _v._ Colcord, 59 N. H. 7), as applied to the ownership

of real estate, in favor of the principle of absolute dominion, may

properly consider a malicious motive immaterial upon the rightfulness of

a particular use; but in this state, to do so would be to reject the

principle announced in Bassett _v._ Company, 43 N. H. 569, and

repeatedly reaffirmed during the last forty years.

It is to be conceded that the maxim _sic utere tuo ut alienum non lædas_

is to be applied as forbidding injury, not merely to the property, but

to the right of another. Ladd _v._ Brick Co., 68 N. H. 185; Pittsburg,

&c. R’y _v._ Bingham, 29 Ohio St. 364; Letts _v._ Kessler, 54 Ohio St.

73; Bonomi _v._ Backhouse, E. B. & E. 622, 643; Jeffries _v._ Williams,

5 Exch. 792. But the landowner’s right in the enjoyment of his estate

being that of reasonable use merely, there attaches at once to each the

correlative right not to be disturbed by the malicious, and hence

unreasonable, use made by another. To hold that a right is infringed

because, by the noxious use made by another, the air coming upon a

landowner’s premises is made more or less injurious, and to deny the

invasion of a right by an unreasonable use which shuts off air and light

entirely, is an attempt to bound a right inherent and essential to the

common enjoyment of property by the limitations of an ancient form of

action. An unreasonable use of one estate may constitute a nuisance by

its diminution of the right of enjoyment of another, without furnishing

all the elements necessary to maintain an action _quare clausum fregit_;

though in particular cases it may be said that no right is invaded

unless something comes from the one lot to the other. Lane _v._ Concord,

70 N. H. 485, 488, 489; Thompson _v._ Androscoggin Co., 54 N. H. 545,

552; Wood, Nuis., s. 611. As, therefore, the statute does not deprive

the plaintiff of any right to reasonable use, it does not deprive him of

any property right. Hence it is not necessary to inquire whether, as an

invasion of property rights, the limitation of the statute is one which

might properly be made for the general good.

* * * * *

The objection based upon the unconstitutionality of the statute is not

sustained, and the exception to the denial of the motions for a nonsuit

and to direct a verdict upon that ground is overruled.

[The verdict was set aside on account of an erroneous ruling as to the

admission of evidence][589]

KEEBLE _v._ HICKERINGILL

IN THE QUEEN’S BENCH, TRINITY TERM, 1706.

_Reported in 11 East, 574, note._

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

the second year of the Queen, lawfully possessed of a close of land

called Minott’s Meadow, _et de quodam vivario, vocato_ a decoy pond, to

which divers wild fowl used to resort and come; 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 benefit in taking them: the defendant knowing

which, and intending to damnify the plaintiff in his vivary, and to

fright and drive away the wild fowl 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

gunpowder, and with the noise and stink of the gunpowder did drive away

the wild fowl 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 wild fowl, did place himself with a gun near the vivary, and

there did discharge the said gun several times that was then charged

with the gunpowder against the said decoy pond, whereby the wild fowl

were frighted away, and did forsake the said pond. Upon not guilty

pleaded, a verdict was found for the plaintiff and £20 damages.

HOLT, C. J. I am of opinion that this action doth lie. It seems to be

new in its instance, but is not new in the reason or principle of it.

For, first, this using or making a decoy is lawful. Secondly, 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 hath 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 wild fowl or tame cattle.

Then 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?

Though they do not affect 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; as to say a merchant is broken, or that he is failing, or

is not able to pay his debts, 1 Roll. 60, 1; all the cases there put.

How much more, when the defendant doth an actual and real damage to

another when he is in the very act of receiving profit by his

employment. Now 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 hath 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 hath a

benefit, and that wherein the public is not concerned. 22 H. 6, 14, 15.

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. 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 case of 11 H. 4, 47.

One schoolmaster sets up a new school to the damage of an ancient

school, and thereby the scholars are 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 fright 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. 29 E. 3, 18. A man hath a market, to which he hath 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. Action upon the case lies against one

that shall by threats fright away his tenants at will. 9 H. 7, 8; 21 H.

6, 31; 9 H. 7, 7; 14 Ed. 4, 7; Vide Rastal. 662; 2 Cro. 423. Trespass

was brought for beating his servant, whereby he was hindered from taking

his toll; the obstruction is a damage, though not the loss of his

service.[590]

IBOTTSON _v._ PEAT

IN THE EXCHEQUER, MAY 1, 1865.

_Reported in 3 Hurlstone & Coltman, 644._