§ 130. Importance of motive.-Recent restatement of the question. There are two antagonistic views as to the importance of malice or motive. The one is that in cases of persuasion, whether between competitors or not, motive is entirely immaterial; that if an act is otherwise lawful it cannot be made unlawful by the existence of a bad motive. On the other hand, during the past fifteen years the whole question of the legality of persuasion has been so restated as to make motive material in many if not most of the cases. As restated, a plaintiff makes out a prima facie tort whenever he shows that the defendant has intentionally caused him damage, and the burden is upon the defendant to show some justification.23 Under this restatement, the right of competition becomes a justification, to be extended only as it is conducive to the public welfare. The advantage of the restatement is that it brings out very clearly the important question at issue; but that question-what is or is not justifiable -is still to be solved.

In Allen v. Flood 24 the plaintiffs were shipwrights and members of a union; they were employed to do woodwork by the day by the Glengall Company; the boiler makers' union objected to shipwrights doing iron work, and finding that the plaintiffs had shortly before been employed to do some iron work, the defendant, walking delegate of the boiler makers' union, threatened the Glengall Company that unless they discharged the plaintiffs, the boiler makers employed by the Glengall Company by the day would quit work. The Glengall Company thereupon discharged the plaintiffs. The trial court held that there was no evidence of any conspiracy or combination. The jury found that the defendant acted maliciously. The House of Lords held that no action lay because the motive was immaterial and the act was not otherwise unlawful; there was no prima facie tort. Under the new statement of the law as to persuasion above mentioned, the defendant would be considered as having committed a prima facie tort in intentionally causing damage to the plaintiff; this would place the burden of justification upon the defendant.

* 8 Harv. Law Rev. 1-14; Plant v. Woods, 176 Mass. 492. 24 L. R. (1898) A. C. 1.

§ 131. Present uncertainty of this branch of the law. In the present state of the law no general rule can be laid down as to the legality of many of the various means employed in a trade or labor dispute. Neither courts nor legislatures are agreed as to how far a combination of laborers or capitalists may go in advancing their interests. Much will depend, in settling the law, upon the drift of public opinion during the next few years. The case of Plant v. Woods 25 typically shows the divergent views. In this case the plaintiffs and defendants were officers and members of rival labor unions; the defendant union which had its headquarters at Baltimore sought by various means to compel the members of the other union, which had its headquarters at Lafayette, Indiana, to join the defendant union. In the case of at least one employer the defendant union threatened to leave off his name from a so-called "fair list" published by the defendant union, unless the employer would cease to employ members of the Lafayette union. The majority of the court, declining to follow Allen v. Flood, held that the plaintiff was entitled to protection against such acts, saying: "We have, therefore, a case where the defendants had conspired to compel the members of the plaintiff union to join the defendant union, and to carry out their purpose have resolved upon such coercion and intimidation as naturally may be caused by threats of loss of property by strikes and boycotts, to induce the employers either to get the plaintiffs to ask for reinstatement in the defendant union, or, that failing, then to discharge them. Without now in

dicating to what extent workmen may combine and in pursuance of an agreement may act by means of strikes and boycotts to get the hours of labor reduced or their wages increased, or to procure from their employers any other concession directly and immediately affecting their own interests, or to help themselves in competition with their fellow workmen, we think the plaintiffs are entitled to a remedy in this case. The purpose of these defendants was to force the plaintiffs to join the defendant association, and to that end they injured the plaintiffs in their business, and molested and disturbed them in their efforts to work

25 176 Mass. 492,

at their trade. It is true they committed no act of personal violence, or of physical injury to property, although they threatened to do something which might reasonably be expected to lead to such results. In their threat, however, there was plainly that which was coercive in its effect upon the will. It is not necessary that the liberty of the body should be restrained. Restraint of the mind, provided it would be such as would be likely to force a man against his will to grant the thing demanded, and actually has that effect, is sufficient in cases like this. The necessity that the plaintiffs should join this association is not so great, nor is its relation to the rights of the defendants as compared with the right of the plaintiffs to be free from molestation, such as to bring the acts of the defendant under the shelter of the principles of trade competition. Such acts are without justification, and therefore are malicious and unlawful, and the conspiracy thus to force the plaintiffs was unlawful. Such conduct is intolerable, and inconsistent with the spirit of our laws."

Holmes, J., dissented on the ground that while there was a prima facie tort, the defendants were justified, saying: "I agree that the conduct of the defendants is actionable unless justified. I agree that the presence or absence of justification may depend upon the object of their conduct, that is, upon the motive with which they acted. I agree, for instance, that if a boycott or a strike is intended to override the jurisdiction of the court by the action of a private association, it may be illegal. On the other hand, I infer that a majority of my brethren would admit that a boycott or strike intended to raise wages directly might be lawful, if it did not embrace in its scheme or intent violence, breach of contract, or other conduct unlawful on grounds independent of the mere fact that the action of the defendants is combined. A sensible workingman would not contend that the court should sanction a combination for the purpose of inflicting or threatening violence or the infraction of admitted right. To come directly to the point, the issue is narrowed to the question whether, assuming that some purposes would be a justification, the purpose in this case of the threatened boycott and strikes was such as to justify the threats. That purpose was not directly concerned with wages. It was one degree more remote. The immediate

object and motive was to strengthen the defendants' society as a preliminary means to enable it to make a better fight on questions of wages or other matters of clashing interests. I differ from my brethren in thinking that the threats were as lawful for this preliminary purpose as for the final one to which strengthening the union was a means. I think that unity of organization is necessary to make the contest of labor effectual, and that societies of laborers lawfully may employ in their preparation the means which they might use in the final contest."

CHAPTER IV.

PERSONAL PROPERTY AND BAILMENTS.

Section 1. Nature of Property Rights.-Classification of Personal Property.

§1. Property rights in rem and in personam. The word property is used loosely and with several meanings. For our present purposes we may say that the right of property in a thing is the legal right to exercise dominion or control over it. Rights are divided into those available against the whole world, known as right in rem, and those available against one or more particular individuals, known as rights in personam. Rights in rem are the rights that the owner of land or goods has in them and with which no one may lawfully interfere, and, hence, are said to be rights against all men. Rights in personam are those rights that one or more individuals have against one or more other individuals and which exist against him or them alone, e. g., a right of action to recover a sum of money for failure to pay a debt or because of a wrong done.

In the sense in which we have used the word property we may say that rights in rem are property rights.

The violation of a right in rem may create a right in personam. Thus, if A is owner of land his right therein is a right in rem. If B trespasses on the land he has infringed A's right in rem and A now has a right in personam against B, namely, to bring an action against B and recover from him damages for the wrong done.

A right may be, in one aspect of it, a right in personam and, at the same time, a right in rem. Thus, in the case put, A's right in personam against B is itself with respect to all other persons