equally may a number of traders combine to produce a similar result by similar peaceable means. In Mogul Steamship Co. v. McGregor, Gow & Co. (a), the defendants were a so-called "conference" of shipowners. They traded to certain ports and acted on a common system of rules for the regulation of freights with the object of keeping the trade of the ports in their own hands. The plaintiffs traded to the same ports independently. The defendants systematically underbid them, and used pressure to prevent shippers giving them cargoes, with the direct object of driving them out of the trade. The plaintiffs in consequence lost business. It was held by the House of Lords that as the acts of the defendants had been done with the lawful object of protecting their own trade, and as they had not employed any unlawful means or been actuated by motives of spite towards the plaintiffs, the plaintiffs had no cause of action. The case was merely an instance of the ordinary expedient of commercial men "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" (b). But where the combination of parties for the attainment of a particular end, in itself not illegal, is clearly antagonistic to the existing legal right of a third person, to whom one of the parties combining is under a contractual obligation, the interests of the combination must not clash with the existing legal right of the individual; and in the event of a breach of such right, the aggrieved person is entitled to damages. Thus, it has been held that the existence of an agreement between an employer of labour and a trade union, to obey the union rules, is no justification, in an action by a workman against the union, for the latter calling out the employer's

(a) (1892) A. C. 25.

(b) Per Bowen, L.J., in the Court of Appeal, 23 Q. B. D. p. 615. It will be observed that in this case the very same motive which in Bowen v. Hall (see above, p. 17) was held to be malicious and actionable, namely, a desire on the part of the defendant to benefit himself at the plaintiff's expense, was held to be non-malicious and innocent. The difference between the two cases lies in

the difference of the circumstances. In the former, the defendant interfered with the performance of an existing contract, the right to have which performed may be regarded as an absolute right of property. In the latter the defendant only interfered with the plaintiff's chance of making beneficial contracts in the future. (But see the next cases.)

workmen, in consequence of a breach by the employer of the union rules (a).

In Temperton v. Russell (b), the defendants, members of a joint committee of certain trade unions connected with the building trade, being desirous of securing that a certain firm of builders should obey the rules of the unions, requested the plaintiff to cease from supplying materials to the firm until the rules were obeyed. The plaintiff refused to do so, whereupon the defendants, in order to compel the plaintiff to comply with their request, persuaded third persons to break certain contracts into which they had already entered with the plaintiff, and also to abstain from entering into any further contracts with him, whereby he suffered damage. The Court of Appeal held that the defendants were liable both for procuring such breaches of contract, and also for conspiring to prevent persons from entering into future contracts with the plaintiff. But it seems difficult, so far as the latter head of that decision is concerned, to distinguish that case from Mogul Steamship Co. v. McGregor, Gow & Co. (c), for the object of the defendants was not to injure the plaintiff as an end in itself, but only to put pressure upon him in order to secure a lawful benefit for themselves, nor did they make use of any force or fraud. The correctness of that decision may therefore be open to question. It was followed by the Court of Appeal in Flood v. Jackson (d), the decision, however, being subsequently reversed by the House of Lords. In this case the (e) plaintiffs were journeymen shipwrights employed by the day by a firm of ship repairers. The defendants, who were respectively the chairman, secretary, and district delegate of a trade union, the rules of which the plaintiffs were alleged to have broken, were charged with having maliciously procured the plaintiffs' said employers to abstain from employing them in the future. The jury, in the Court of First Instance, found a verdict in favour of the first two defendants and against the third. In spite of this verdict it was, nevertheless, held by a majority of the House of Lords that the district delegate had violated no legal right of the respondents,

(a) Read v. Friendly Society of Operative Stonemasons of England, Ireland, and Wales, (1902) 2 K. B. 732. () (1893) 1 Q. B. 715.

(c) (1892) A. C. 25.

(d) (1895) 2 Q. B. 21.

(e) S. C. sub nom. Allen v. Flood, (1898) A. C. 1.

Personal spite.

Conspiracy.

however malicious and bad his ulterior motives might be, and consequently that he was entitled to judgment. It should, however, always be remembered that the adoption of intimidation, or other violent methods, for the attainment of an ulterior end, not in itself illegal, is an offence at common law (a).

In Mogul Steamship Co. v. McGregor, Gow & Co., the defendants' motive was to benefit themselves, and not to injure the plaintiffs except incidentally and as a means to that end, and such a motive as between trade competitors was there held to be a perfectly innocent motive. All the Lords, however, were careful to point out that the defendants had not been actuated by malice in the popular sense of the term, thereby suggesting that if they had been so, they would have been liable, notwithstanding that they made use of neither force nor fraud to secure their object. The use of unfair means is material only where the defendants' motive is innocent. The defendants in that case were a combination of persons, and not an individual, and it may be that the majority of the Lords, when making that suggestion, intended it to be understood as applicable only to a case similar to that before them, namely, one in which the damage is caused by several persons acting in concert. Indeed, Lord Halsbury there conceded that "there are many things which might be perfectly lawfully done by an individual which when done by a number of persons become unlawful" (b), and expressed an opinion that a combination to insult and annoy a person would be an indictable conspiracy. And Lord Bramwell, who took the same view, explained it by saying that " a man may encounter the acts of a single person, yet not be fairly matched against several " (c).

But as to whether an action will lie against several conspirators for an act done by them in concert, which would not be actionable if done by one alone, there does not appear to be any express authority to show. The case of Gregory v. Duke of Brunswick (d), indeed, appears to have been sometimes regarded as suggesting that such an action will lie. But there the question did not

(a) Lyons & Sons v. Wilkins, (1896) 1 Ch. 811, C. A.; S. C (1899) 1 Ch. 255; and see Charnock v. Court, (1899) 2 Ch. 35; Walters v. Green, (1899) 2 Ch. 696.

(b) (1895) 2 Q. B. p. 38.
(c) p. 45.

(d) (1843) 6 M. & G. 953.

arise. In that case the defendants conspired to injure the plaintiff as an actor, and hired other persons to join with them in hissing him, and in pursuance of such conspiracy they hissed him off the stage. Tindal, C.J., directed the jury that if the conspiracy was proved the defendants were liable. But as Coltman J., when subsequently delivering the judgment of the Court, pointed out, the conspiracy there was only material as evidence of malice (a). For it is actionable slander in an individual to hiss an actor maliciously, no criticism being justifiable unless honest. The difficulty in the way of holding an individual liable to an action in such a case is that, in the absence of proof of conspiracy (b), it is very difficult to prove that he acted from a wrong motive.

On the other hand, Lord Field, in Mogul Steamship Co. v. McGregor, Gow & Co. (c), quoted with approval Lord Holt's dictum that "where a malicious act is done to a man's occupation there an action lies in all cases" (d), and he suggested that the acts of the defendants in the case before him would, if done maliciously in the popular sense of the term, have equally been actionable if done by an individual. In Flood v. Jackson (e) the motive of the defendant appeared to have been spite, a desire to punish the plaintiff for past conduct, and upon that ground, if Lord Field's view is correct, the case might perhaps have been supported. But, as above stated, the Court did not go upon that ground, they drew no distinction between the motive of a desire to benefit oneself at another's expense, and that of a desire to cause injury to another as an end in itself. In the more recent case of Quinn v. Leathem (f) it was held that although "an act which does not amount to a legal injury cannot be actionable because it is done with a bad intent"; nevertheless,

(a) Ibid., p. 959. The decision on the sufficiency of the pleadings in that case ((1843) 6 M. & G. 205) merely came to this, that in an action for conspiracy a plea justifying one of the overt acts, leaving the others unanswered, is bad. It did not decide that a justification of all the overt acts would not have been a good answer to the conspiracy.

(b) In an action for conspiracy,

especially if it be for fraudulent misrepresentation, a plaintiff is entitled to full discovery by the defendants (Boulton and Others v. Houlder Bros. & Co., (1904) 1 K. B. 784, C. A.).

(e) (1892) A. C. p. 51. (d) Keble v. Hickeringill, (1705) 11 East, p. 573 (n.).

(e) (1895) 2 Q. B. 21.

(f) (1901) A. C. 495 (Ire.).

Fraud.

Infringement of public

right.

Obstruction

"a conspiracy to injure, resulting in damage," does give rise to a civil liability, when the purpose of the combination was "to injure the plaintiff in his trade, as distinguished from the intention of legitimately advancing its own interests (a); the ground of the decision apparently being that a conspiracy to injure, apart from the motive of personal aggrandisement, raises a presumption of actionable malice against the conspirators.

There are a variety of cases in which the gist of the action lies in an intent to defraud. In any action founded on a misrepresentation made by the defendant to the plaintiff, which the latter is intended to act upon, and does act upon to his damage, it is essential to show that the misrepresentation was fraudulently made. As above pointed out, if one person fraudulently misleads others into a belief of facts contrary to the truth, with the object of inducing such persons to withdraw their custom from the plaintiff, who suffers damage in consequence, the plaintiff will have a cause of action. It is actionable to sell goods on a market day just outside the limits of the market with the object of defrauding the lord of the market of his toll (b).

An infringement of a right which exists for the benefit of the community generally is the subject not of an action but of an indictment (c). But if out of the public injury some particular damage to an individual flows, this is a private wrong, and the party aggrieved may sue. The common application of this of highway. principle takes place where some person suffers a damage peculiar to himself, by reason of an obstruction or other nuisance to a highway. Mere delay and inconvenience is not a particular damage, for that is shared with all those who use the highway. The plaintiff must prove that his person or property were injured, or that he was put to some expense (d). Mere loss of custom by

(a) Stevenson v. Newnham, (1853) 13 C. B. 285, at p. 297.

(b) Fraud need not, however, be proved in order to support an action for disturbance of market (Wilcox v. Steel, (1904) 1 Ch. 212, C. A.).

(c) An information for an offence under sect. 60 (587) of the Metropolitan Police Act, 1839, may be laid by an inspector of streets as agent for and on

behalf of a Borough Council, Allman v. Hardcastle, (1904) 89 L. T. 553.

(d) Winterbottom v. Lord Derby, (1867) L. R. 2 Ex. 316; Benjamin v. Storr, (1874) L. R. 9 C. P. 400; as to what causes an obstruction, in respect of which action will lie, see Dunn V. Holt, (1904) 73 L. J. K. B. 341; Winsborrow v. London Joint Stock Bank, (1903) 88 L. T. 803.