by a combination of persons. My lords, I do not deny that there are many things which might be perfectly lawfully done by an individual, which, when done by a number of persons become unlawful. I am unable to concur with the lord chief justice's criticism' (if its meaning was rightly interpreted, which 1 very much doubt) on the observations made by my noble and learned friend, Lord Bramwell, in Reg. v. Druitt, if that was intended to treat as doubtful the proposition that a combination to insult and annoy a person would be an indictable conspiracy. I should have thought it as beyond doubt or question that such a combination would be an indictable misdemeanor, and I can not think the chief justice meant to throw any doubt upon such a proposition.

"But in this case the thing done, the trading by a number of persons together, effects no more and is no more, so to speak, a combined operation than that of a single person. If the thing done is rendered unlawful by combination the course of trade by a person who singly trades for his own benefit and apart from partnership or sharing profits with others, but nevertheless avails himself of combined action, would be open to the same objections. The merchant who buys for him, the agent who procures orders for him, the captain who sails his ship, and even the sailors (if they might be supposed to have known of the transaction) would be acting in combination for the general result, and would, whether for the benefit of the individual or for an associated body of traders, make it not the less combined action than if the combination were to share profits with independent traders; and if a combination to effect that object would be unlawful, the sharers in the combined action could in a charge of criminal conspiracy make no defense that they were captain, agent, or sailors, respectively, if they were knowingly rendering their aid to what, by the hypothesis, would be unlawful if done in combination.

"A totally separate head of unlawfulness has, however, been introduced by the suggestion that the thing is unlawful because in restraint of trade. There are two senses in which the word unlawful' is not uncommonly, though, I think, somewhat inaccurately, used. There are some contracts to which the law will not give effect; and therefore, although the parties may enter into what, but for the element which the law condemns, would be perfect contracts, the law would not allow them to operate as contracts, notwithstanding that, in point of form, the parties have agreed. Some such contracts may be void on the ground of immorality; some on the ground that they are contrary to public policy, as, for example, in restraint of trade; and contracts so tainted the law will not lend its aid to enforce. It treats them as if they had not been made at all. But the more accurate use of the word unlawful,' which would bring the contract within the qualification which I have quoted from the judgment of the exchequer chamber, namely, as contrary to law, is not applicable to such contracts.

"It has never been held that a contract in restraint of trade is contrary to law in the sense that I have indicated. A judge in very early times expressed great indignation at such a contract; and Mr. Justice Crompton undoubtedly did say (in a case where such an observation was wholly unnecessary to the decision, and therefore manifestly obiter) that the parties to a contract in restraint of trade would be indictable. I am unable to assent to that dictum. It is opposed to the whole current of authority; it was dissented from by Lord Campbell and Chief Justice Erle, and found no support with the case in which it was said came to the exchequer chamber, and it seems to me contrary to principle.

"In the result I think that no case whatever is made out of a conspiracy such as the appellants here undertook to establish; and it is not unimportant, for the reasons I have given, to see what is the conspiracy alleged in the statement of claim. The first paragraph alleges the conspiracy to be to prevent the plaintiffs from obtaining cargoes for steamers owned by the plaintiffs.' The word 'prevent' is sufficiently wide to comprehend both lawful means and unlawful; but as I have already said, in proof there is nothing but the competition with which I have dealt.

"The second paragraph alleges that in pursuance of the conspiracy people were bribed, coerced, and induced to agree to forbear, and to forbear from shipping cargoes by the steamers of the plaintiffs.' If the word bribed' is satisfied by the offering lower freights and larger discounts, then that is proved; but then the word 'bribed' is robbed of any legal significance.

'Coerced' is not justified by any evidence in the case, and the word 'induced' is absolutely neutral, and no unlawful inducement is proved.

"The third paragraph uses language such as intention to injure the plaintiffs,' threats of stopping the shipment of homeward cargoes,' and the like. But I ask myself whether, if the indictment had set out the facts without using the ambiguous language to which I have referred in the statement of claims, it would have disclosed an ind ́etable offense? I am very clearly of opinion it would not.

"I am of opinion, therefore, that the whole matter comes around to the original proposition, whether a combination to trade, and to offer, in respect of prices, discount, and other trade facilities, such terms as will win so large an amount of custom as to render it unprofitable for rival customers to pursue the same trade is unlawful, and I am clearly of the opinion that it is

not.

"I think, therefore, that the appeal ought to be dismissed with costs, and I so move your lordships."

Lord Watson :

"My lords, at the hearing of this appeal in April last, your lordships had the benefit of listening to a learned and exhaustive discussion of the law applicable to combination or conspiracy. It appeared to me at the time, and further consideration has confirmed my impression, that much of the legal argument addressed to us had a very distinct relation to the circumstances of the present case, which are simple enough. The evidence, oral and documentary, contains an unusual amount of figurative language, indicating a wide difference of opinion as to the legal aspect of the facts, but presents no conflict in regard to the facts themselves.

"The respondents are firms and companies owning steam vessels which ply regularly, during the whole year, some of them on the Great River of China between Hankow and Shanghai, and others between Shanghai and European ports. During the tea season, which begins in May and lasts for about six weeks, most shippers prefer to have their tea sent direct from Hankow to Europe; but it suits the respondents' trade better to have the tea which they carry brought down to Shanghai by their ordinary river service, and then transshipped for Europe. Accordingly, they do not send their ocean steamers up the river, except when they find it necessary in order to intercept cargoes which might otherwise have been shipped from Hankow in other than their vessels.

"The appellants are also a shipowning company. They do not maintain a regular service either on the Great River or between Europe and Hankow; but they send vessels to Hankow during the tea season with the legitimate object of sharing in the profits of the tea-carrying trade, which appear in ordinary circumstances to have been considerable.

"The respondents entered into an agreement the avowed purpose of which was to secure for themselves as much of the tea shipped from Hankow as their vessels could conveniently carry, which was practically the whole of it, and to prevent the appellants and other outsiders from obtaining a share of the trade. The consequence of their acting upon the agreement was that the appellants, having sent their ships to Hankow, were unable to obtain cargoes at remunerative rates; and they claim as damages due to them by the respondents the difference between their actual earnings and the freights which their vessels might have earned had it not been for the combined action of the respondents. As the law is now settled, I apprehend that in order to substantiate their claim the appellants must show either that the object of the agreement was unlawful or that illegal methods were resorted to in its prosecution. If neither the end contemplated by the agreement nor the means used for its attainment were contrary to law, the loss suffered by the appellants was damnum sine injuria.

"The agreement of which the appellants complain left the contracting parties free to recede from it at their pleasure, and is not obnoxious to the rule of public policy which was recognized in Hilton v. Eckersley.' The decision in that case, which was the result of judicial opinions not altogether reconcilable, appears to me to carry the rule no further than this-that an agreement by traders to combine for a lawful purpose, and for a specified time, is not binding upon any of the parties to it if he chooses to withdraw, and conse

16 E. & B., 47.

quently can not be enforced in invitum. In my opinion it is not an authority for the proposition that an outsider can plead the illegality of such a contract whilst the parties are willing to act and continue to act upon it. I venture to think that the decision of this appeal depends upon more tangible considerations than, any which could be derived from the study of what is generally known as public policy.

There is nothing in the evidence to suggest that the parties to the agreement had any other object in view than that of defending their carrying trade during the tea season against the encroachments of the appellants and other competitors, and of attracting to themselves custom which might otherwise have been carried off by these competitors. That is an object which is strenuously pursued by merchants great and small in every branch of commerce, and it is, in the eye of the law, perfectly legitimate. If the respondents' combination had been formed, not with a single view to the extension of their business and the increase of its profits, but with the main or ulterior design of effecting an unlawful object, a very different question would have arisen for the consideration of your lordships. But no such case is presented by the facts disclosed in this appeal.

"The object of the combination being legal, was any illegal act committed by the respondents in giving effect to it? The appellants invited your lordships to answer that question in the affirmative, on the ground that the respondents' competition was unfair, by which they no doubt meant that it was tainted by illegality. The facts which they mainly relied on were these: That the respondents allowed a discount of 5 per cent upon their freight accounts for the year to all customers who shipped no tea to Europe except by their vessels; that whenever the appellants sent a ship to load tea at Hankow the respondents sent one or more of their ocean steamers to underbid her, so that neither vessel could obtain cargo on remunerative terms; and, lastly, that the respondents took away the agency of their vessels from persons who also acted as shipping agents for the appellants and other trade competitors outside the combination. "I can not for a moment suppose that it is the proper function of English courts of law to fix the lowest prices at which traders can sell or hire, for the purpose of protecting or extending their business, without committing a legal wrong which will subject them in damages. Until that becomes the law of the land it is, in my opinion, idle to suggest that the legality of mercantile competition ought to be gauged by the amount of the consideration for which a competing trader thinks fit to part with his goods or to accept employment. The withdrawal of agency at first appeared to me to be a matter attended with difficulty; but, on consideration, I am satisfied that it can not be regarded as an illegal act. In the first place, it was imposssible that any honest man could impartially discharge his duty of finding freights to parties who occupied the hostile position of the appellants and respondents; and, in the second place, the respondents gave the agents the option of continuing to act for one or other of them in circumstances which placed the appellants at no disadvantage.

"My lords, in this case it has not been proved, and it has not been suggested, that the respondents used either misrepresentation or compulsion for the purpose of attaining the object of their combination. The only means by which they endeavored to obtain shipments for their vessels to the exclusion of others was the inducement of cheaper rates of freight than the appellants were willing to accept. I entertain no doubt that the judgment appealed from ought to be affirmed. I am quite satisfied with the reasons assigned for it by Bowen and Fry, L. J. J., and the observations which I have made were not meant to add to these reasons but to make it clear that, in my opinion, the appellants have presented for decision no question of fact or law attended with either doubt or difficulty."

Lord MacNaghten:

"My lords, the judgment which I am about to read is the judgment of my noble and learned friend Lord Bramwell, who is unable to be present here this morning, and has asked me to read it for him:

Lord Bramwell.

"My lords, the plaintiffs in this case do not complain of any trespass, violence, force, fraud, or breach of contract, nor of any direct tort or violation of any right of the plaintiffs, like the case of firing to frighten birds from a decoy; nor of any act the ultimate object of which was to injure the plaintiffs, having its origin in malice or ill will to them. The plaintiffs admit that materially and morally they have been at liberty to do their best for them

selves without any impediment by the defendants, but they say that the defendants have entered into an agreement in restraint of trade; an agreement therefore unlawful; an agreement therefore indictable, punishable; that the defendants have acted in conformity with that unlawful agreement, and thereby caused damage to the plaintiffs in respect of which they are entitled to bring and bring this action.

"The plaintiffs have proved an agreement among the defendants the object of which was to prevent shipowners other than themselves from trading to Shanghai and Hankow. The way in which that was to be accomplished was by giving benefits to those who shipped exclusively by them by sending vessels to compete with the plaintiffs' and by their lowering their (the defendants') rates of freight, so that the plaintiffs had to lower their's to their great loss. There are other matters alleged, but they are accessorial to the above, which is the substance of the complaint.

"The plaintiffs also say that these things, or some of them, if done by an individual, would be actionable. This need not be determined directly, because all the things complained of have their origin in what the plaintiffs say is unlawfulness, a conspiracy to injure; so that if actionable when done by one. much more are they when done by several, and if not actionable when done by several, certainly they are not when done by one. It has been objected by capable persons that it is strange that that should be unlawful if done by several which is not if done by one, and that the thing is wrong if done by one if wrong when done by several; if not wrong when done by one, it can not be when done by several. I think there is an obvious answer, indeed two; one is. that a man may encounter the acts of a single person, yet not be fairly matched against several. The other is, that the act when done by an individual is wrong though not punishable, because the law avoids the multiplicity of crimes; de minimis non curat lex; while if done by several it is sufficiently important to be treated as a crime. Let it be then that it is no answer to the plaintiffs' complaint that if what they complain of had been done by an individual there would be no cause of action. There is the further question whether there is a cause of action the acts being done by several.

"The first position of the plaintiffs is that the agreement among the defendants is illegal as being in restraint of trade, and therefore against public policy, and so illegal. Public policy,' said Burrough, J. (I believe, quoting Hobart, C. J.), is an unruly horse and dangerous to ride.' I quote also another distinguished judge, more modern, Cave, J.: 'Certain kinds of contracts have been held void at common law on the ground of public policy; a branch of the law, however, which certainly should not be extended. as judges are more to be trusted as interpreters of the law than as expounders of what is called public policy.'* I think the present ense is an illustration of the wisdom of these remarks. I venture to make another. No evidence is given in these public policy cases. The tribunal is to say, as matter of law, that the thing is against public policy. and void. How can the judge do that without any evidence as to its effect and consequences? If the shipping in this case was sufficient for the trade, a further supply would have been a waste. There are some people who think that the public is not concerned with this-people who would make a second railway by the side of one existing, saying only the two companies will suffer, as though the wealth of the community was not made up of the wealth of individuals who compose it. I am by no means sure that the conference did not prevent a waste, and was not good for the public. Lord Coleridge thought it was-see his judgment.

"As to the suggestion that the Chinese profited by the lowering of freights. I can not say it was not so. There may have been a monopoly or other cause to give them a benefit; but, as a rule, it is clear that the expense of transit. and all other expenses, borne by an exported article that has a market price, are borne by the importer, therefore, ultimately, by the consumer. So that low freights benefit him. To go on with the case, take it that the defendants had bound themselves to each other: I think they had, though they might withdraw. Let it be that each member had tied his hands; let it be that that was in restraint of trade; I think upon the authority of Hilton r. Eckersley, and other cases, we should hold that the agreement was illegal: that is, not enforceable by law. I will assume, then, that is was, though I am not quite But that is not enough for the plaintiffs. To maintain their action on

sure.

1 Richardson v. Mellish, 2 Bing., at p. 252. 2 (1891) 1 Q. B., 595. 16 E. & B., 47.

this ground they must make out that it was an offense. a crime. a misdemeanor. I am clearly of opinion it was not. Save the opinion of Crompton, J. (entitled to the greatest respect, but not assented to by Lord Campbell or the exchequer chamber), there is no authority for it in the English law.

"It is quite certain that an agreement may be void, yet the parties to it not punishable. Take the case I put during the argument—a man and woman agree to live together as man and wife without marrying. The agreement is illegal and could not be enforced, but clearly the parties to it would not be indictable. It ought to be enough to say that the fact that there is no case where there has been a conviction for such an offense as is alleged against the defendants is conclusive.

"It is to be remembered that it is for the plaintiffs to make out the case that the defendants have committed an indictable offense-not for the defendants to disprove it. There needs no argument to prove the negative. There are some observations to be made. It is admitted that there may be fair competition in trade; that two may offer to join and compete against a third. If so, what is the definition of fair competition'? What is unfair that is neither forcible nor fraudulent? It does seem strange that to enforce freedom of trade, of action, the law should punish those who make a perfectly honest agreement with a belief that it is fairly required for their protection.

"There is one thing that is to me decisive. I have always said that a combination of workmen and agreement among them to cease work except for higher wages, and a strike in consequence, was lawful at common law; perhaps not enforceable inter se, but not indictable. The legislature has now so declared. The enactment is expressed that agreements amongst workmen shall be binding whether they would or would not, but the acts have been deemed unlawful as in restraint of trade. Is it supposable that it would have done so in the way it has had the workmen's combination been a punishable misdemeanor? Impossible. This seems to me conclusive that though agreements which fetter the freedom of action in the parties to it may not be enforceable; they are not indictable. See also the judgment of Fry, L. J., on this point. Where is such a contention to stop? Suppose the case put in the argument: In a small town there are two shops-sufficient for the wants of the neighborhood-making only a reasonable profit. They are threatened with a third. The two shopkeepers agree to warn the intending shopkeeper that if he comes they will lower prices and can afford it longer than he. Have they committed an indictable offense? Remember the conspiracy is the offense, and they have conspired. If he, being warned, does not set up his shop, has he a cause of action? He might prove damages. He might show that from his skill he would have beaten one or both of the others. See in this case the judgment of Lord Esher-that the plaintiffs might recover for damages at large for future years.' Would a shipowner who had intended to send his ship to Shanghai, but desisted owing to the defendants' agreement, and on being told by them they would deal with him as they had with the plaintiffs, be entitled to maintain an action against the defendants? Why not? If yes, why not every shipowner who could say he had a ship fit for the trade, but was deterred from using it?

The master of the rolls cites Sir William Erle, that a combination to violate a private right in which the public has a sufficient interest is a crime, such violation being an actionable wrong. True. Sir William Erle means that where the violation of a private right is an actionable wrong, a combination to violate it, if the public has a sufficient interest, is a crime. But in this case, I hold that there is no private right violated. His Lordship further says: If one goes beyond the exercise of the court 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, 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. I may be permitted to say that this is not very plain. I think it means that it is not in the course of trade for one trader to do acts the motive of which is to damage the trade of another. Whether I should agree depends on the meaning to be put on course of trade' and molest.' But it is clear that the master of the rolls means conduct which

1

123 Q. B. D., 607.