employed therein, and as to the times or periods of the engagement of workpeople and the hours of work, otherwise than in conformity with the resolutions of the majority of the said masters. The defendant, one of the signing masters, carried on his works contrary to a resolution of the others, whereupon he was sued on the bond for the penalty.

Crompton, J., said: “I am of the opinion that the bond is void, as being against public policy. I think that combinations like that disclosed in the pleadings in this case were illegal and indictable at common law, as tending directly to impede and interfere with the free course of trade and manufacture. One of the most objectionable parts of this bond is that it takes away the freedom of action of the individual to carry on the trade, and to open and close his works according as it may be for his interest or that of the public." He held that the bond was void as between the parties to it, because it was illegal as being in restraint of trade. Lord Campbell doubted whether the bond was illegal to the extent of rendering the parties to it indictable, but agreed that it was illegal as between the parties, and was therefore void. In the Court of Exchequer Chamber, Alderson, B., gave the judgment. "The question," he said, "is whether this is a bond in restraint of trade; and we think it is so. Prima facie, it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice." Speaking of the regulations, he said: "All these are surely regulations restraining each man's power of carrying on his trade according to his discretion for his own best advantage, and, therefore, are restraints on trade not capable of being legally enforced. We do not mean to say that they are illegal, in the sense of being punishable and criminal. The case does not require us and we think we ought not to express any opinion on that point." He then goes on to say that the fact of the combination of masters being formed to counteract a combination of workmen can not render the masters' combination legal. "The maxim injuria non excusat injuriam' is a sound one, both in common sense and at common law." Hornby v. Close (1) is to the same effect. These cases decide that there is still, according to law, a restraint of trade which is contrary to law. They decide that an agreement whereby traders bind themselves not to carry on their trade according to their own judgment, but according to the judgment of others, is an agreement in restraint of trade. They decide that if such an agreement is made out it is not made legal because it is entered into as a counter move against another similar agreement. Applying these propositions to the agreement of 1885, the defendants by it agree to carry on their trade of shipowners, not each according to his own judgment as circumstances may arise, but according to an agreed rule arrived at by the consent of others, not to be departed from without the consent of all. Unless the law holds this agreement to be void, the defendants have bound themselves to it by mutual agreement, which would be a sufficient consideration to bind each of them. They have bound themselves not to depart from the agreement without a particular kind of notice. The agreement, in accordance with the cited cases, must be held to be in resraint of trade, and therefore void as between the parties to it. The only reason why it can be held void is because it is illegal. A legal agreement voluntarily come to can not be held by law to be void. The cited cases leave open the question whether such an agreement amounts to an indictable conspiracy. They do not hold that it is not. But before considering that point it must be observed that the agreements held to be illegal because in resraint of trade must have been so held, not because there was any wrong done to the traders who agreed-for they all agreed to what was to be done-but because there was a wrong to the public.

The restraining themselves from a free course of trade was held to be a wrong to the public. If that be so when parties agree to restrain themselves, it must be much more so when they agree to do acts which will restrain and are intended to restrain another trader from a free course of trade. That restraint is equally a wrong to the public. The present agreement is therefore illegal and void as in restraint of trade on that ground also.

The cases cited do not determine whether an agreement which is void as between the parties to it because it is in restraint of trade is or is not an indictable offense. But if such an agreement is illegal because it is a wrong to the public. it seems to me impossible to say that it is not indictable. An illegal act which is a wrong against the public welfare seems to have the necessary elements of a crime. If, however, all agreements in restraint of trade are not necessarily indictable offenses, yet some may be. And if the agreement is

one intended to interfere with the free course of trade of a trader who is not a party to the agreement, and can, if carried out, have that effect, then if such an interference is an illegal act as against the trader, it seems clear that the act of agreement is a wrongful act, both as against an individual and as against the public welfare, and then I am of opinion it must be an indictable conspiracy. "There seems," says Sir William Erle, in the most admirable essay styled The Law Relating to Trade Unions (1), a book more full of careful and accurate law than is to be found in many judgments, “also to be authority for saying that a combination to violate a private right, in which the public has a sufficient interest, is a crime, such a violation being an actionable wrong." (Erle, p. 32.)

Unless the public has an interest in traders being left to their own judgment, and to a free course of trade, there is no foundation for the law as to agreements in restraint of trade being illegal. The public therefore has an interest which such agreement injures. It follows that if the agreement be an agree ment to violate the right of an independent trader by restraining his trade, there is a sufficient public interest which is also injured, and the agreement is an indictable conspiracy. It becomes necessary now to consider what interference with an independent trader will be a violation of his private right. Now, a long line of cases has determined that every trader in the Queen's dominions has by law a legal right to carry on his trade in ordinary course of trade according to his own will and judgment, and the law has decided that for some kinds of interference with that right the trader interfered with has a right of action. Alderson, B., in the Exchequer Chamber, in Hilton v. Eckersley (2), says, "Prima facie, it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice." Turning again to the careful analysis of law in Sir William Erle's book, I agree with him (p. 13) that "these propositions assume that a person has a right to do as he chooses with his own, whether labor or capital, within the limits set by law; that a right involves a prohibition against the infringement thereof; and that a prohibition involves a remedy for the violation thereof." The particular right of a trader-which we are considering-is his right to carry on his trade according to a free course of trade. The plaintiff's had that right on their side; but so also had the defendants on their side.

The next question is, What will amount, as between rival traders, to an encroachment by the one on this right of the other? Each has a right to carry on his trade in a free course of trade, according to his own free will and judgment. So long as the one so carries on his trade the other can not, without infringing on the right of his rival, effectively complain. So long as each so carries on his trade, though such carrying on produces the utmost extent of competition, and consequent lowering of gain, neither can validly complain. Each is exercising a free course of trade. But if one goes beyond the exercise of the course of trade and does an act beyond what is the course of trade, in order that is to say, with intent-to molest the other's free course of trade, and which does molest the other's free course of trade, he is not exercising his own freedom of a course of trade; he is not acting in, but beyond, the course of trade; and then it follows that his act is an unlawful obstruction of the other's right to a free course of trade; and if such obstruction causes damage to the other, he is entitled to maintain an action for the wrong. "At common law," says Sir W. Erle (p. 6), "every person has individually, and the public also have collectively, a right to require that the course of trade should be kept free from unreasonable obstruction." "Every person has a right under the law, as between him and his fellow-subjects, to full freedom in disposing of his own labor or his own capital according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from any obstruction to the fullest exercise of this right which can be made compatible with the exercise of similar rights by others. Every act causing an obstruction to another in the exercise of the right comprised within this description-done, not in the exercise of the actor's own right, but for the purpose of obstruction-would, if damage should be caused thereby to the party obstructed, be a violation of this prohibition; and the violation of this prohibition by a single person is a wrong, to be remedied either by action or indictment, as the case may be. It is equally a wrong whether it be done by one or by many, subject to this observation, that a combination of many to do a wrong in a matter where the public has an interest is a substantive offense of conspiracy (p. 12). The limitation of the competing

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rights, then, is that the act which has in fact obstructed the full right of the one must, in order to be actionable, be an act done by the other beyond the exercise of the actor's own right and for the purpose of obstruction. In Lumley v. Gye (1) and in Bowen v. Hall (2), the act done which obstructed the plaintiff's right was the persuading a person employed by the plaintiff, under contract, to break that contract. Such persuasion is not in ordinary course of trade. The ordinary competition of trade is a fair The next quescompetition, not a secret persuasion of others to do wrong. tion in those cases was whether what was done was intended to obstruct the plaintiff. With regard to that point it is laid down in Bowen v. Hall (3): "The act of the defendants which is complained of must be an act wrongful in law and in fact. Merely to persuade a person to break his contract may not be wrongful in law or fact. But if the persuasion be used for the indirect purpose of injuring the plaintiff or of benefiting the defendant at the expense of the plaintiff it is a malicious act which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it." The law there is laid down that a malicious motive in the defendant may make an act which would not be wrongful without the malice a wrongful act when done with malice. It was thought that the judgment in Lumley v. Gye (1) was founded on the view that there was malice in the defendant, and that view was adopted and approved in Bowen v. Hall (2). The word "malice" is satisfied by the thing being done with the knowledge of the plaintiff's right and with intent to interfere with it "maliciously," or, which is the same thing, "with notice," per Crompton, J., in Lumley v. Gye (1). This effect of malice is adopted by Sir W. Erle, and so long ago as by Lord "the defendant had Holt in Keeble v. Hickeringill (2). "Suppose," he says, shot in his own ground, if he had occasion to shoot, it would have been one thing, but to shoot on purpose to damage the plaintiff is another thing, and a wrong." In truth I have never known this rule doubted.

The propositions applicable to the present case, which are to be deduced from the above considerations, are the following: First, that the head of law, which we are considering, applies only to trade and to traders; second, that the law has a peculiar care for the preservation of a free course of trade as between traders, because such freedom is for the benefit of the public; third, that the principal formula of law for the purpose of enforcing this peculiar care is that every trader has a legal right to a free course of trade, meaning thereby a legal right to be left free to exercise his trade according to his own will and judgment; fourth, that if anyone, by an act wrongful as against that right, interferes with it to the injury of a trader, an action lies against such person by such trader; fifth, that any act of fair trade competition, though it injure a rival trader even to the destruction of his trade, is only the exercise of the first-mentioned trader's equal right, and is therefore not actionable; sixth, any act, though of the nature of competition in trade, but which is an act beyond the limits of fair trade competition, and which is therefore not an act of any real course of trade at all, and the immediate and necessary effect of which is such an interference with a rival trader's right to a free course of trade as prevents him from exercising his full right to a free course of trade, leads to an almost irresistible inference of an indirect motive, and is therefore-unless, as may be possible, the motive is negatived-a wrongful act as against his right, and is actionable if injury ensues; seventh, an act of competition, otherwise unobjectionable, done not for the purpose of competition, but with intent to injure a rival trader in his trade, is not an act done in an ordinary course of trade, and therefore is actionable if injury ensue; eighth, an agreement among two or more traders, who are not and do not intend to be partners, but where each is to carry on his trade according to his own will, except as regards the agreed act, that agreed act being one to be done for the purpose of interfering, i. e., with intent to interfere with the trade of another, is a thing done not in the due course of trade, and is therefore an act wrongful against that other trader, and is also wrongful against the right of the public to have free competition among traders, and is therefore a wrongful act against such trader, and, if it is carried out and injury ensue, is actionable; ninth, such an agree ment, being a public wrong, is also of itself an illegal conspiracy, and is Indictable.

It follows that in the present case the agreement of 1885 was within the rules (S) and (9) an indictable conspiracy. and that when it was carried out to its immediate and intended effect, which was an injury to the plaintiffs' right to a free course of trade, the plaintiffs had a good cause of action against the defendants.

It follows that the act of the defendants in lowering their freights far beyond a lowering for any purpose of trade-that is to say, so low that if they continued it they themselves could not carry on trade-was not an act done in the exercise of their own free right of trade, but was an act done evidently for the purpose of interfering with, i. e., with intent to interfere with, the plaintiffs' right to a free course of trade, and was therefore a wrongful act as against the plaintiffs' right; and as injury ensued to the plaintiffs, they had also in respect of such act a right of action against the defendants. The plaintiffs, in respect to that act, would have had a right of action if it had been done by one defendant only; they have it sti!! more clearly when that act was done by several defendants combined for that purpose. For these reasons I come to the conclusion that the plaintiffs were entitled to judgment. The damages. if that be the correct conclusion as to the right of action, are to be ascertained. They are, in my opinion, the difference between the freight of 25s., which the plaintiffs were forced to accept, and the freight they would have obtained without other interference than a legal fair competition in 1885, and damages at large for being prevented from endeavoring to earn freight from Hankow to England in subsequent years, after taking into account the probability of using their ships in some other trade. I am of the opinion that the appeal should be allowed.

BOWEN, L. J.:

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 5 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 posi

tion 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 plantiffs 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 earliest 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 (1). 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 (2), "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 (3); Capital and Counties Bank v. Henty, per Lord Blackburn (4). 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 seems 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. McGawley (1); the obstruction of actors on the stage by preconcerted hissing, Clifford v. Brandon (2), Gregory v. Brunswick (3); the disturbance of wild fowl in decoys by the firing of guns, Carrington v. Taylor (4), and Keeble v. Hickeringill (5); the impeding or threatening servants or workmen, Garret v. Taylor (6); the inducing persons under personal contracts to break their contracts, Bowen v. Hall (7), Lumley v. Gye (8), 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