on the plaintiff's land, wilfully fires off guns near to the decoy, and frightens wild fowl away from it (x). Not many examples of the kind are to be found, and this is natural; for they have to be sought in a kind of obscure middle region where the acts complained of are neither wrongful in themselves as amounting to trespass against the plaintiff or some third person (y), nuisance (z), or breach of an absolute specific duty, nor yet exempt from search into their motives as being done in the exercise of common right in the pursuit of a man's lawful occupation or the ordinary use of his property (a). Mere competition carried on for the purpose of gain, not out of actual malice, and not by unlawful means, such as molestation or intimidation, is not actionable, even though it be intended to drive a rival trader out of the field, and produce that result (b). "The policy of our law, as at present declared by the legislature, is against all fetters on combination and competition unaccompanied by violence or fraud or other like injurious acts" (c). Beyond generally forbidding the use of means unlawful in themselves, the law does not impose any restriction upon competition by one trader with another with the sole view of benefiting himself. A different question would arise if there were evidence of an intention on the defendant's part to injure the plaintiff without benefiting himself. "Thus, if several persons agree not to deal at all with a particular individual, as this could not, under ordinary circumstances, benefit the persons so agreeing" (d). Driving a public performer off the stage by

(2) Carrington v. Taylor (1809), 11 East, 571, following Keeble v. Hickeringill (1705), ib. 573 in notis, where see Holt's judgment. And see Lord Field's opinion in Mogul Steamship Company v. McGregor, '92, A. C. 25, 51.

(y) Tarleton v. McGawley, Peake, 270, 3 R. R. 689: the defendant's act in firing at negroes to prevent them from trading with the plaintiff's ship was of course unlawful per se.

(z) Cp. Ibbotson v. Peat (1865), 3 H. & C. 644, 34 L. J. Ex. 118.

(a) See p. 182, above. (b) Mogul Steamship Company v. McGregor, above.

(c) Fry L. J., 23 Q. B. Div. at p. 628. (d) Lord Hannen in Mogul Steamship Company v. McGregor, above.

marks of disapprobation which proceed not from an honest opinion of the demerits of his performance or person, but from private enmity, is, as we have just seen, a possible but doubtful instance of this sort of wrong (e). Holt put the case of a schoolmaster frightening away children from attendance at a rival school (ƒ).

Contract. It is really on the same principle that an action has been held to lie for maliciously (that is, with the design of injuring the plaintiff or gaining some advan

(e) Gregory v. Duke of Brunswick, supra, p. 404.

(f) Keeble v. Hickeringill, note (x) last page.

Malicious interference with one's contract.

It is not a legal wrong

to peaceably persuade one not to enter the employment of another; but to maliciously interfere with a contract of service whereby any of the parties thereto are damnified is actionable. "On the other hand it has been decided that a mere conspiracy to break a contract for the delivery of property cannot constitute a tort, even though the contract be broken in pursuance of it; the ground of it being that the party to the contract might of its own violation have broken his promise without being liable as for a wrong, and that an act which, if done by one alone, constitutes no ground of an action of the case, cannot be made the ground of such action by alleging it to have been done by and through a conspiracy of several. The quality of the act, and the nature of the injury inflicted by it, must determine the question whether the action will lie.' It is difficult to understand, however, why a conspiracy to deprive one of labor contracted for can be any different in nature or damaging quality from a conspiracy to deprive him of property bargained for or of anything else of value. There is no peculiar sacredness to the right to service over any other right, and no good reason can be suggested for protecting it differently." Cooley on Torts, p. 330. See Wellington v. Small, 3 Cush. 145; Van Horn v. Van Horn, 52 N. J. L. 287; Webber v. Barry, 66 Mich. 127; 33 N. W. Rep. 289; Rogers v. Evarts, 17 N. Y. S. Rep. 264.

Trades unions. Where the object of labor unions, or organizations of workmen, is to discuss and agree upon their time of service, place of employment, price of wages, and other provisions for their mutual protection and benefit, they are lawful. But when they secretly combine and conspire to intimidate by threats and coerce others to abandon their employment or desist from seeking employment where they would otherwise be employed, and thus maliciously interfere with the business and with the contracts of employés, they are jointly and severally liable for the injury done by them. "The labor and skill of the workmen, be it

tage at his expense) procuring a third person to break his contract with the plaintiff, and thereby causing damage to the plaintiff (g). The precise extent and bearing of the doctrine are discussed in the final chapter of this book with reference to the difficulties that have been felt about it, and expressed in dissenting judgments and elsewhere. Those difficulties (I submit and shall in that place endeavour to prove) either disappear or are greatly reduced when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill-will, is a necessary element.

Or franchise. Generally speaking, every wilful interference with the exercise of a franchise is actionable without regard to the defendant's act being done in good faith, by reason of a mistaken notion of duty or claim of right, or being consciously wrongful. "If a man hath a franchise

(g) Lumley v. Gye (1853), 2 E. & B. 216, 22 L. J. Q. B. 463; Bowen v. Hall (1881), 6 Q. B. Div. 333, 50 L. J. Q. B. 305.

of high or low degree, the plant of the manufacturer, the equipment of the farmer, the investment of the commerce are in equal sense property." If men by acts of violence destroy either, they are guilty of crime. The anathemas of a secret organization of men combined for the purpose of controlling the industry of others by a species of intimidation that works upon the mind rather than the body, are quite as dangerous, and generally altogether more effective, than acts of actual violence. And while such conspiracies may give to the individual directly affected by them a private right of action for damages, they at the same time lay the basis for an indictment on the ground that the State itself is directly concerned in the promotion of all legitimate industries and the devolopment of all of its resources, and owes the duty of protection to its citizens engaged in the exercise of the callings. State v. Stewart, 59 Vt. 289. See the Master Stevedores' Assoc. v. Walsh, 2 Daly, 1; State v. Donaldson, 32 N. J. L. 151; The People v. Fisher, 14 Wend. 1; State v. Burnham, 15 N. H. 404; Commonwealth v. Hunt, 4 Metc. 111; Sweeny v. Torrence, 11 Pa. Co. Ct. R. 497; Mayer v. Association, 47 N. J. Eq. 519; 20 At. Rep. 492; Casey v. Cincinnati Typo. Union, 45 Fed. Rep. 135. But one not injured in his business by a combination of dealers cannot complain of the combination as unlawful. Fairbank v. Newton, 50 Wis. 628.

and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case " (h). But persons may as public officers be in a quasi-judicial position in which they will not be liable for an honest though mistaken exercise of discretion in rejecting a vote or the like, but will be liable for a wilful and conscious, and in that sense malicious, denial of right (i). In such cases the wrong, if any, belongs to the class we have just been considering.

Maintenance. The wrong of maintenance, or aiding a party in litigation without either interest in the suit, or lawful cause of kindred, affection, or charity for aiding him, is akin to malicious prosecution and other abuses of legal process but the ground of it is not so much an independent wrong as particular damage resulting from "a wrong founded upon a prohibition by statute” — a series of early statutes said to be in affirmation of the common law which makes it a criminal act and a misdemeanor" (k). Hence it seems that a corporation cannot be guilty of maintenance (k). Actions for maintenance are in modern times rare though possible (7); and the decision of the Court of Appeal that mere charity, with or without reasonable ground, is an excuse for maintaining the suit of a stranger (m), does not tend to encourage them.

(h) Holt C. J. in Ashby v. White at p. 13 of the special report first printed in 1837. The action was on the case merely because trespass would not lie for the infringement of an incorporeal right of that kind.

(i) Tozer v. Child (1857), Ex. Ch. 7 E. & B. 877, 26 L. J. Q. B. 151.

(k) Lord Selborne, Metrop. Bank v. Pooley (1885), 10 App. Ca. 210, 218, 54 L. J. Q. B. 449.

(1) Bradlaugh v. Newdegate (1883), 11 Q. B. D. 1, 52 L. J. Q. B. 454.

(m) Harris v. Brisco (1886), 17 Q. B. Div. 504, 55 L. J. Q. B. 423.

412

CHAPTER IX.

WRONGS TO POSSESSION AND PROPERTY.

I.- Duties regarding Property generally.

Every kind

Absolute duty to respect others' property. of intermeddling with anything which is the subject of property is a wrong unless it is either authorized by some person entitled to deal with the thing in that particular way, or justified by authority of law, or (in some cases but by no means generally) excusable on the ground that it is done under a reasonable though mistaken supposition of lawful title or authority. Broadly speaking, we touch the property of others at our peril, and honest mistake in

Absolute duty to respect others' property. The general proposition is affirmed in Amick v. O'Hara, 6 Blackf. 258; Cate v. Cate, 44 N. H. 211; Bruck v. Carter, 32 N. J. L. 554; Dexter v. Cole, 6 Wis. 319; Magee v. Tappan, 23 Cal. 306; Hobart v. Haggett, 12 Me. 67; Luttrell v. Hazen, 3 Sneed (Tenn.), 20; Brown v. Stackhouse, 155 Pa. St. 582; 26 At. Rep. 669; 32 W. N. C. 407.

Thus, trespass lies against one who cuts or removes timber without lawful authority from the owner, though the trespasser believed he had proper authority from the actual owner. Higginson v. York, 5 Mass. 341; Allison v. Little, 85 Ala. 512; Loevenberg v. Rosenthal, 18 Oreg. 178; 22 Pac. Rep. 601. An action lies for a trespass committed over a boundary line by mistake. Blaen Avon Coal Co. v. McCulloch, 59 Md. 403. Although the plaintiff's mistake had led the defendant to commit the trespass. Pearson v. Inlow. Advice of counsel will not justify a trespass on land. Watson v. State, 63 Ala. 19. Nor will the desire of destroying an animal feræ naturæ. Glenn v. Kays, 1 Ill. App. 479.

A person who aids a grantee in a bill of sale in the removal of the property is liable where it turns out that the bill of sale was in fact a mortgage. Wallard v. Wortham, 84 Ill. 446. See Flanders v. Colby, 28 N. H. 34.

There is room for distinction, however, where not only the result of