Chapter VIII: Interference with Advantageous Relations (9)

It was said that this was held lawful because the law sanctions acts
which are done in furtherance of trade competition. I do not think the
decision rests on so narrow a basis, but rather on this, that the acts
by which the competition was pursued were all lawful acts, that they
were acts not in themselves wrongful, but a mere exercise of the right
to contract with whom, and when, and under what circumstances and upon
what conditions they pleased. I am aware of no ground for saying that
competition is regarded with special favor by the law; at all events,
I see no reason why it should be so regarded. It may often press as
hardly on individuals as the defendant’s acts are alleged to have done
in the present case. But if the alleged exception could be
established, why is not the present case within it? What was the
object of the defendant, and the workmen he represented, but to assist
themselves in their competition with the shipwrights? A man is
entitled to take steps to compete to the best advantage in the
employment of his labor, and to shut out, if he can, what he regards
as unfair competition, just as much as if he was carrying on the
business of a shipowner. The inducement the appellant used to further
his end was the prospect that the members of his union would not work
in company with what they deemed unfair rivals in their calling. What
is the difference between this case and that of a union of shipowners
who induce merchants not to enter into contracts with the plaintiffs,
by the prospect that if at any time they employ the plaintiffs’ ships
they will suffer the penalty of being made to pay higher charges than
their neighbors at the time when the defendants’ ships alone visit the
ports? In my opinion there is no difference in principle between the
two cases.

* * * * *

LORD MACNAGHTEN. My Lords, I am sorry to say that I must begin by
recapitulating the facts of the case. For the findings of the jury,
taken by themselves, do not convey to my mind any definite meaning.
The jury have found that the appellant Allen “maliciously induced” the
Glengall Iron Company to discharge the respondents from their service,
and they have awarded damages in consequence. I do not know what the
jury meant by the word “induced;” I am not sure that I know what they
meant by the word “maliciously.” Sometimes, indeed, I rather doubt
whether I quite understand that unhappy expression myself. I am
therefore compelled to turn for help to the evidence at the trial,
accepting, as I suppose the jury must have accepted, the account given
by the respondents in preference to that offered by the appellant
wherever there may be any shadow of difference between them.

[After a full statement of the evidence.]

Now before I proceed to consider the legal grounds on which Kennedy,
J., and the Court of Appeal decided the case against Allen, I should
like to ask what there was wrong in Allen’s conduct. He had nothing to
do with the origin of the ill-feeling against Flood and Taylor. He did
nothing to increase it. He went to the dock simply because he was sent
for by one of the men of his union. It seems to be considered the duty
of a district delegate to listen to the grievances of the members of
his union within his district, and to settle the difficulty if
possible. The jury found that the settlement of this dispute was a
matter within Allen’s discretion. The only way in which he could
settle it was by going and seeing the manager. There was surely
nothing wrong in that. There was nothing wrong in his telling the
manager that the iron-men would leave their work unless the two
shipwrights against whom they had a grudge were dismissed, if he
really believed that that was what his men intended to do. As far as
their employers were concerned, the iron-men were perfectly free to
leave their work for any reason, or for no reason, or even for a bad
reason; any one of them might have gone singly to the manager, or they
might have gone to him all together (if they went quietly and
peaceably), and told him that they would not stay any longer with
Flood and Taylor at work among them.

If so, it is difficult to see why fault should be found with Allen for
going in their place and on their behalf and saying what they would
have said themselves.

* * * * *

As regards the meaning of the word “induce,” I do not think the jury
got much assistance. I rather gather from the summing-up that the jury
were given to understand that if they thought that Allen merely
represented the state of things as it was—and the feeling of the
iron-men at the Regent’s Dock—they would be at liberty to answer the
questions put to them about Allen in the negative. But the answer must
be the other way if they thought that Allen went further, and assumed
to represent the union, and to speak as if he had the power of the
union at his back; that would be a threat and would amount to
“inducing.” Now, I must say that I do not think it can be said that
Allen did “induce” the company to discharge the plaintiffs. Certainly
it cannot be truly said that he procured them to be discharged. It was
not his act that prevented the company from continuing to employ them.
If the whole story had been a fiction and an invention on his part I
could have understood the finding of the jury. But I do not think
there was any misrepresentation on Allen’s part. I do not think there
was any exaggeration. Nor, indeed, was any such point made at the
trial.

* * * * *

So we see now, I think, what the findings of the jury come to, if they
are to be treated as being in accordance with the evidence. They must
mean that Allen induced the company to discharge the plaintiffs, by
representing to the manager, not otherwise than in accordance with the
truth, the state of feeling in the yard, and the intentions of the
workmen, and that he did so “maliciously,” because he must have known
what the issue of his communication to the manager would be, and
naturally perhaps he was not sorry to see an example made of persons
obnoxious to his union. But is his conduct actionable? It would be
very singular if it were. No action would lie against the company for
discharging the two shipwrights. No action would lie against the
iron-men for striking against them. No action would lie against the
officers of the union for sanctioning such a strike. But if the
respondents are right the person to answer in damages is the man who
happened to be the medium of communication between the iron-men and
the company,—the most innocent of the three parties concerned, for he
neither set the “agitation” on foot, nor did he do anything to
increase it, nor was his the order that put an end to the connection
between employer and employed. It seems to me that the result would
have been just the same if Edmonds had told Mr. Halkett what was going
on in the yard, or if Mr. Halkett had learned it from Flood and Taylor
themselves.

Even if I am wrong in my view of the evidence and the verdict, if the
verdict amounts to a finding that Allen’s conduct was malicious in
every sense of the word, and that he procured the dismissal of Flood
and Taylor, that is, that it was his act and conduct alone which
caused their dismissal, and if such a verdict were warranted by the
evidence, I should still be of opinion that judgment was wrongly
entered for the respondents. I do not think that there is any
foundation in good sense or in authority for the proposition that a
person who suffers loss by reason of another doing or not doing some
act which that other is entitled to do or to abstain from doing at his
own will and pleasure, whatever his real motive may be, has a remedy
against a third person who, by persuasion or some other means not in
itself unlawful, has brought about the act or omission from which the
loss comes, even though it could be proved that such person was
actuated by malice towards the plaintiff, and that his conduct, if it
could be inquired into, was without justification or excuse.

The case may be different where the act itself to which the loss is
traceable involves some breach of contract or some breach of duty, and
amounts to an interference with legal rights. There the immediate
agent is liable, and it may well be that the person in the background
who pulls the strings is liable too, though it is not necessary in the
present case to express any opinion on that point.

But if the immediate agent cannot be made liable, though he knows what
he is about, and what the consequences of his action will be, it is
difficult to see on what principle a person less directly connected
with the affair can be made responsible unless malice has the effect
of converting an act not in itself illegal or improper into an
actionable wrong. But if that is the effect of malice, why is the
immediate agent to escape? Above all, why is he to escape when there
is no one else to blame and no one else answerable? And yet many cases
may be put of harm done out of malice without any remedy being
available at law. Suppose a man takes a transfer of a debt with which
he has no concern for the purpose of ruining the debtor, and then
makes him bankrupt out of spite, and so intentionally causes him to
lose some benefit under a will or settlement,—suppose a man declines
to give a servant a character because he is offended with the servant
for leaving,—suppose a person of position takes away his custom from a
country tradesman in a small village merely to injure him on account
of some fancied grievance not connected with their dealings in the way
of buying and selling,—no one, I think, would suggest that there could
be any remedy at law in any of those cases. But suppose a customer,
not content with taking away his own custom, says something not
slanderous or otherwise actionable or even improper in itself to
induce a friend of his not to employ the tradesman any more. Neither
the one nor the other is liable for taking away his own custom. Is it
possible that the one can be made liable for inducing the other not to
employ the person against whom he has a grudge? If so, a fashionable
dressmaker might now and then, I fancy, be plaintiff in a very
interesting suit. The truth is, that questions of this sort belong to
the province of morals rather than to the province of law. Against
spite and malice the best safeguards are to be found in self-interest
and public opinion. Much more harm than good would be done by
encouraging or permitting inquiries into motives when the immediate
act alleged to have caused the loss for which redress is sought is in
itself innocent or neutral in character, and one which anybody may do
or leave undone without fear of legal consequences. Such an
inquisition would, I think, be intolerable, to say nothing of the
probability of injustice being done by juries in a class of cases in
which there would be ample room for speculation and wide scope for
prejudice.

In order to prevent any possible misconstruction of the language I
have used, I should like to add that in my opinion the decision of
this case can have no bearing on any case which involves the element
of oppressive combination. The vice of that form of terrorism commonly
known by the name of “boycotting,” and other forms of oppressive
combination, seems to me to depend on considerations which are, I
think, in the present case, conspicuously absent.

* * * * *

LORD SHAND.... The case was one of competition in labor, which, in my
opinion, is in all essentials analogous to competition in trade, and
to which the same principles must apply; and I ask myself what would
be the thought of the application of the word “malicious” to the
conduct of a tradesman who induces the customer of another tradesman
to cease making purchases from one with whom he had long dealt, and
instead to deal with him, a rival in trade. The case before the jury
was, in my view, in no way different, except that in the one case
there was competition in labor,—in the other there would be
competition in trade.

Some of the learned consulted judges speak of Allen’s conduct as
having been caused by a desire to inflict “punishment” on the
shipwrights for past acts, and indicate that, if the shipwrights had
been actually working at ironwork on the vessel at the time, the case
would have been different.[601]

I cannot agree in any such view. “Punishment” in a wide and popular
sense may possibly be used, though incorrectly, to describe the
boilermakers’ action; but it is quite clear that what they were
resolved to do, and really did, was, while marking their sense of the
injury which they thought (rightly or wrongly is not the question) the
shipwrights were doing to them in trenching on their proper lines of
business, to take a practical measure in their own defence. Their
object was to benefit themselves in their own business as working
boilermakers, and to prevent a recurrence in the future of what they
considered an improper invasion on their special department of work.
How this could possibly be regarded as “malicious,” even in any
secondary sense that can reasonably be attributed to that term, I
cannot see.

* * * * *

Coming now directly to the merits of the question in controversy in
the case, the argument of the plaintiffs and the reasons for the
opinions of the majority of the consulted judges seem to me to fail,
because, although it is no doubt true that the plaintiffs were
entitled to pursue their trade as workmen “without hindrance,” their
right to do so was qualified by an equal right, and indeed the same
right, on the part of other workmen. The hindrance must not be of an
unlawful character. It must not be by unlawful action. Amongst the
rights of all workmen is the right of competition. In the like manner
and to the same extent as a workman has a right to pursue his work or
labor without hindrance, a trader has a right to trade without
hindrance. That right is subject to the right of others to trade also,
and to subject him to competition,—competition which is in itself
lawful, and which cannot be complained of where no unlawful means (in
the sense I have already explained) have been employed. The matter has
been settled in so far as competition in trade is concerned by the
judgment of this House in the Mogul Steamship Co. Case, [1892] A. C.
25. I can see no reason for saying that a different principle should
apply to competition in labor. In the course of such competition, and
with a view to secure an advantage to himself, I can find no reason
for saying that a workman is not within his legal rights in resolving
that he will decline to work in the same employment with certain other
persons, and in intimating that resolution to his employers.

* * * * *

[The opinions of LORD DAVEY and LORD JAMES OF HEREFORD, in favor of
reversing the order of the Court of Appeal are omitted.]

_Order of the Court of Appeal reversed and judgment entered
for the appellant with costs here and below including the
costs of the trial: cause remitted to the Queen’s Bench
Division._[602]

LEATHEM _v._ CRAIG
QUEEN’S BENCH DIVISION, IRELAND, NOVEMBER 22, 1898.
COURT OF APPEAL, IRELAND, MAY 2, 1899.
_Reported in [1899] 2 Irish Reports, 667, 744_.

QUINN _v._ LEATHEM
IN THE HOUSE OF LORDS, AUGUST 5, 1901.
_Reported in [1901] Appeal Cases, 495._[603]

This was an action tried before FitzGibbon, L. J., at the Belfast Summer Assizes, 1896, brought against the defendants for damages for maliciously and wrongfully procuring certain persons to break contracts into which they had entered with the plaintiff, and not to enter into other contracts with the plaintiff; and for maliciously and wrongfully enticing and procuring certain workmen in the employment of such persons to leave the service of their employers and to break their contracts of service, with intent to injure the plaintiff, and to prevent such persons from carrying out their contracts with the plaintiff, and from entering into other contracts with the plaintiff; and for maliciously and wrongfully intimidating such persons, and coercing them to break their contracts with the plaintiff; and intimidating such servants in their employ, and coercing them to leave the service of their employers, to the injury of the plaintiff; and for unlawfully conspiring, together with other persons, to do the acts aforesaid, with intent to injure the plaintiff.

There was also a paragraph in the statement of claim, claiming damages for the publication of the plaintiff’s name in a “black list,” issued by the defendants, and a prayer for an injunction to prevent the continuance and repetition of the acts complained of.

The following facts were proved. The plaintiff was a butcher at Lisburn, in the county of Antrim, about eight miles from Belfast, where he had carried on business for a number of years. He had in his employment one Robert Dickie, his foreman, who had been with him for ten years. The plaintiff had been in the habit of sending large quantities of meat to Andrew Munce, a butcher in Belfast, and had been doing so for some twenty years. There was no contract in writing between them; but, whatever amount the plaintiff sent, Munce took and paid for—the amount being, on an average, of the value of £30 a week.

The defendants John Craig, John Davey, and Joseph Quinn were butchers’ assistants in Belfast; and the defendants, Henry Dornan and Robert Shaw, butchers’ assistants in Lisburn. In the spring of 1895 these defendants and several others in the same occupation formed themselves into an association, which was duly registered under the Trade Union Acts, 1871 and 1876, under the title of “The Belfast Journeymen Butchers’ Assistants’ Association,” of which the defendant Davey became the Secretary. The plaintiff’s men were not members of the association. At the commencement of July, 1895, the defendants’ association required the plaintiff to dismiss Robert Dickie from his employment, which he refused to do. Upon that the defendants’ society threatened to withdraw the plaintiff’s men from his service. A deputation was sent down to meet the plaintiff at Lisburn, and a meeting was held in Magill’s public-house, Lisburn, on the 9th July, at which the defendants Craig, Quinn, Dornan, and Shaw were present—Craig being in the chair. The plaintiff stated that he had come on behalf of his men, and was ready to pay all fines and demands against them, and asked to have them admitted into the society. The defendant Shaw objected, and said that the plaintiff’s men should be punished, and should be put out to walk the streets for twelve months. The plaintiff objected to this, as Dickie was a married man with a family. Shaw moved, and Morgan seconded a resolution that the plaintiff’s assistants should be called out, and it was carried. The defendants stated that they could pick out plenty of men to work for the plaintiff from their list; the plaintiff replied that they were not suitable for his business, and refused to put his own men out. Craig then said that the plaintiff’s meat would be stopped at Munce’s, if the plaintiff would not comply with their wishes. The plaintiff still refused. The defendants then called out some of the plaintiff’s employees. Edward Dickie, a servant of the plaintiff, was brought to a meeting of the defendants’ society, held over Dornan’s shop in Lisburn, and was ordered to leave the plaintiff, the society undertaking to pay him the same wages as he had been receiving from the plaintiff. Dickie, yielding to this order, left the plaintiff without notice. “Black lists” were issued by the society upon which the names of persons were posted who had offended against the society’s rules. Leathem’s name was posted, and also the name of John M’Bride, a flesher in Lisburn, who was dealing with the plaintiff. Subsequently, however, Dornan and others of the defendants came to M’Bride; and on his undertaking not to deal any more with Leathem, his name was struck out.

On the 6th September, 1895, the defendant Davey wrote to the plaintiff the following letter:—

“I have been instructed to write you if you would be kind enough to reply on or before Tuesday, 10th, whether you have made up your mind to continue to employ non-union labour. If you continue as at present, our society will be obliged to adopt extreme measures in your case. Trusting that you will see the wisdom of acceding to our views at once, I remain,” &c.

On the 13th September, Davey wrote to Munce:—

“A deputation has been appointed to wait on you, or your responsible representative, on Monday evening, the 16th inst., at 6.30 p. m., to come to a decision in regard to this case of Leathem & Sons, as we are anxious to have a settlement at once.”

To this Munce replied:—

“In reply to your letter _re_ Leathem & Sons, I cannot see my way to attend any deputation of the sort, as it is quite out of my province to interfere with the liberty of any man. But why refer to me in this matter? I do not think it fair for you to come at me in the matter, seeing it appears to be the Messrs. Leathem that you wish to interfere with.”

On the 16th September a deputation of the defendants’ society went to Munce’s establishment, and had an interview with W. F. Munce, the son of Andrew Munce, and asked him to put pressure on his father to stop dealing with the plaintiff. W. F. Munce replied by letter on the 17th September:—

“A deputation of the Journeymen Butchers’ Association waited at Corn Market yesterday evening, with reference to the case of the purchase of meat from Henry Leathem, Lisburn. In accordance with promise, I placed the views of the deputation before Mr. Munce, and in reply he wishes to state he could not interfere to bring pressure to bear on Mr. Leathem to employ none but society men, by refusing to purchase meat from him, as that would be outside his province, and would be interfering with the liberty of another man; but at the same time he will strongly recommend Mr. Leathem to adopt the views of the Journeymen Butchers’ Association, and employ men belonging to the society.”

On the 18th September Davey wrote to Andrew Munce:—

“Have submitted your letter to committee. They are of opinion that in the main it is unsatisfactory, but thanking you kindly for your recommendation to Mr. Leathem, with whom we have endeavoured to make a satisfactory arrangement, but have failed; so therefore have no other alternative but to instruct your employees to cease work immediately Leathem’s beef arrives.”

On the 19th September Munce telegraphed to Leathem:—

“Unless you arrange with society you need not send any beef this week, as men are ordered to quit work.”

Munce ceased to deal with the plaintiff, and the plaintiff was obliged to sell off the meat he had on hand at a heavy loss at any price he could get. In consequence of these transactions the plaintiff’s business was ruined.

The case was tried before FitzGibbon, L. J., at the Summer Assizes of 1896, at Belfast. The defendants did not offer any evidence, their counsel asking for a direction on the grounds: 1, that to sustain the action a contract made with Leathem must be proved to have been made and broken through the acts of the defendants, and that there was no evidence of such contract or breach; 2, that there was no evidence of pecuniary damage to the plaintiff through the acts of the defendants; 3, that the ends of the defendants and the means taken by them to promote those ends as appearing in evidence were legitimate, and there was no evidence of actual damage to the plaintiff.

The learned Lord Justice declined to withdraw the case from the jury, and left to them the following questions:—

1. Did the defendants, or any of them, wrongfully and maliciously induce the customers or servants of the plaintiff named in the evidence to refuse to deal with the plaintiff? _Answer_: Yes.

2. Did the defendants, or any two or more of them maliciously conspire to induce the plaintiff’s customers or servants named in the evidence, or any of them, not to deal with the plaintiff or not to continue in his employment; and were such persons so induced not so to do? _Answer_: Yes.

3. Did the defendants Davey, Dornan, and Shaw, or any of them, publish the “black lists” with intent to injure the plaintiff in his business; and, if so, did the publication so injure him? _Answer_. Yes.

FitzGibbon, L. J., in summing up, told the jury that pecuniary loss, directly caused by the conduct of the defendants, must be proved in order to establish a cause of action; and he advised them to require to be satisfied that such loss to a substantial amount had been proved by the plaintiff. He declined to tell them that, if actual and substantial pecuniary loss was proved to have been directly caused to the plaintiff by the wrongful acts of the defendants, they were bound to limit the amount of damages to the precise sum so proved. He told them that, if the plaintiff gave the proof of actual and substantial loss necessary to maintain the action, they were at liberty in assessing damages to take all the circumstances of the case, including the conduct of the defendants, reasonably into account. The Lord Justice did not tell the jury that the liability of the defendants depended on any question of law. He told them that the questions left to them were questions of fact to be determined on the evidence; but that they included questions as to the intent of the defendants, and, in particular, their intent to injure the plaintiff in his trade as distinguished from the intent of legitimately advancing their own interests. The Lord Justice did not tell the jury that the defendants could be directly asked what their own intention was, but he did tell them that their intention was to be inferred from their acts and conduct as proved, and that, in acting upon the evidence given by the plaintiff, they were at liberty to have regard to the fact that the defendants, who might have given the best evidence on the subject, had not been produced to explain, qualify, or contradict any of the evidence given for the plaintiff as to their own acts. Upon the meaning of the words “wrongfully and maliciously” in the questions, the Lord Justice told the jury that they had to consider whether the intent and actions of the defendants went beyond the limits which would not be actionable, namely, securing or advancing their own interests, or those of their trade, by reasonable means, including lawful combination, or whether their acts, as proved, were intended and calculated to injure the plaintiff in his trade, through a combination and with a common purpose, to prevent the free action of his customers and servants in dealing with him, with the effect of actually injuring him, as distinguished from acts legitimately done to secure or advance their own interests. Finally, he told the jury that acts done with the object of increasing the profits or raising the wages of any combination of persons such as the society to which the defendants belonged, whether employers or employed, by reasonable and legitimate means, were perfectly lawful and were not actionable so long as no wrongful act was maliciously—that is intentionally—done to injure a third party. To constitute such a wrongful act for the purposes of this case, the Lord Justice told the jury that they must be satisfied that there had been a conspiracy, a common intention, and a combination, on the part of the defendants to injure the plaintiff in his business; and that acts must be proved to have been done by the defendants in furtherance of that intention which had inflicted actual money loss upon the plaintiff in his trade; and that whether the acts of the defendants were or were not in that sense actionable, was the question which the jury had to try upon the evidence.

The jury found for the plaintiff with £250 damages, of which £50 was separately assessed for damages on the cause of action relating to the “black list,” and £200 for damages on the other causes of action and judgment was thereupon entered for the plaintiff for £250 damages and costs.

The defendants now moved to set aside the verdict and judgment so had, and that judgment should be entered for them on the ground of misdirection; or for a new trial, on the ground that the damages were excessive, and that the jury were allowed to take the “black lists” into account.

WILLIAM O’BRIEN, J....

The right infringed is the right to live by labor.

* * * * *

Physical hindrances, or prevention of labor by physical means, it was conceded, would be the invasion of a right, and that would certainly be the case whether the restraint was applied to the employer or to the workman.

* * * * *

If temporal loss were not coercion, it could be used to the degree of a person being starved. The proposition on which the judgment of the majority (in Allen _v._ Flood) was founded in this respect is opposed to the whole analogy of the law that makes duress of property, or menace of temporal loss, as effectual as physical violence to avoid all kinds of acts.

* * * * *

In The Mogul Steamship Company _v._ M’Gregor, [1892] A. C. 25, the trade of the defendants was the primary object, and the injury to the plaintiffs was the result of the means taken to advance that object. There, as in Allen _v._ Flood, [1898] A. C. 1, the injury to others was the thing intended, as the means of carrying out another object.

* * * * *

There is an observation which appears to me to gather up several of the fallacies which are scattered through the arguments in the judgments of the majority in Allen _v._ Flood, [1898] A. C. 1. The case is put by Lord Watson as if it were a question whether a person could be made liable for doing, from a malicious motive, what, without such motive he could do lawfully. In fact there are cases in law in which the malice makes the distinction of what is lawful or unlawful, as in malicious prosecution, or takes away the right that otherwise exists, as in the instance of privileged communication. But that is not the present case at all, as it was not that of Allen _v._ Flood, [1898] A. C. 1. The defendant, who maliciously instigated the thing, is not the person who possessed the power of dismissal. Therefore the supposed constitutional objection, that the law could not enter into a man’s mind, has no place. The same point meets the case of the butler and the cook that was put in the argument. The butler tells his master he will leave unless the cook is dismissed. Lord Herschell snatched at the admission of counsel, that the cook could bring an action, as being the logical conclusion from his argument. With great respect, it is neither logical nor the law. The servant is the master of his own actions. He can choose his own company, though even for that object he cannot use threats. But in this case it was another person that assumed to choose his company for him. Allen was not a boiler-maker, as Craig was not a butcher, who wished to leave. Each was a member of a trade organization, and had no duty or interest of his own to interfere. What relation could such a position assume but that of intimidation?

* * * * *

... a confusion of relations, in applying the proposition that a person cannot be made liable for maliciously exercising a right which he possesses. The action here is for maliciously causing another person to exercise a right which that other person possessed. In one case, the right may be said to absorb the malice, though there are exceptions to the rule in the common law. But how can it absorb another man’s malice?

* * * * *

What wrong can be conceived more cruel and grievous than wilfully depriving men of their employment? There must be a right, correlative to the wrong. What right can be more sacred than the right to live by a man’s labor? But then, it is said, the wrong and the right are subject to the legal power of another person. That is the case in many instances, in which the law nevertheless gives a remedy for wrong that requires the exercise of another person’s will. That is the case of a person who is defamed; the damage comes from those who hear. That is the case of malicious prosecution; the agency is that of the law. The servant who is enticed away from his master, leaves of his own will. The woman who left her husband, in Winsmore _v._ Greenbank, Willes, 577, did so with her own consent; the actress who broke her engagement, in Lumley _v._ Gye, 2 E. & B. 216, could have performed, if she liked. That is the case of tenants leaving their holdings on account of threats, which is put in 1 Rolle’s Abridgment, 108; Action sur Case, (N.) pl. 21.

Many other examples could be given where the law allows a remedy, though the wrongful act requires the concurrence of another person’s will. The rule is the same as to crimes. The law does not excuse instigation to crime because the other person need not commit the crime, or for the reason that it is impossible to separate the effect of the instigation and natural pravity of will, which was the ground erroneously assigned by Coleridge, J., for his opinion in Lumley _v._ Gye, 2 E. & B. 216. In fact the law makes no distinction between moral and physical agency, or the degrees of the influence, when the cause is attached to the consequence by the verdict of the jury.

* * * * *

The law of conspiracy, which is traced down, in Comyn’s Digest, and after him in the notes to Saunders’ Reports, and in several English judgments as well as in the judgment in Kearney _v._ Lloyd, 26 L. R. Ir. 268, from the obsolete writ of conspiracy, through the action on the case in the nature of conspiracy, with their several distinctions, and which was originally confined to false accusations of crime, has widened out by the expansion of social conditions and the increase of wickedness, until it embraces in its modern extent every kind of wrong committed by several against another, and has been applied in a multitude of instances where the law gives no remedy against an individual, which was the utmost that was determined by Allen _v._ Flood, [1898] A. C. 1.

* * * * *

... a malicious design to deprive a person of his livelihood, the malice being compounded both of the object, and the want of any just motive of personal right. For no one contended at any time that the object of drawing all persons into the pen of a trade union, was a ground of privilege like that which excused the act in The Mogul Steamship Co. _v._ M’Gregor, [1892] A. C. 25, where the defendants merely waged a war of rivalry in their trade. However, if “civil wrong” be understood in the sense of actionable wrong, the rule, so confined, is contrary to a multitude of cases, in which the action was adopted, and in which nevertheless it is most certain there was no legal remedy against a single defendant, even before the decision of Allen _v._ Flood, [1898] A. C. 1. Indeed, that is the express and special use of the action of conspiracy, without which it would find no real place in practice, though it is not impossible such an action could be maintained for what is actionable also in the case of an individual.

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There was in this case a direct design to injure the plaintiff. That was malice alone. The act was not done in exercise of any right the defendants possessed. It was done through the agency of another person by improperly influencing his will; and that will was moved solely by their act, and would not otherwise have been exercised. It was done by numbers, to which the law attaches a new and altered quality of more formidable wrong—the foundation of conspiracy—which is a difference in things themselves that can never be taken out of the law, civil or criminal, whilst there is a difference between a man and an army. Lastly, there was the damage which was so unjust as itself to make the act malicious.

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For the case put, of a person maliciously digging on his own land, and draining the well, of his neighbor, is no exception, and demonstrates the weakness of the argument which is founded on it. In that case the act could not be prohibited without interfering with the inherent right of property; and the right of the neighbor was subject to the right of the contiguous owner. The two rights were equal. The right absorbed the malice, and could not otherwise coexist with it. Here the defendants possessed no right which they could not otherwise exercise; and the right of the plaintiff to carry on his trade was not subject to any right in them. No right of interference with others, which the law could recognize, could attach to the aggressions of a trade union—to their plans for the revision of the relations between employers and employed—to proceedings conducting, by inevitable sequence, to what was lately expressed, with no less energy than the weight attaching to the author, as “the destructive demands of a class upon the fundamental laws on which civil order rests.”

SIR P. O’BRIEN, L. C. J., and ANDREWS, J., delivered opinions in favor of denying defendants’ motion.

PALLES, C. B., dissented, because he felt himself “coerced by the judgment of the House of Lords in Allen _v._ Flood....”

The defendants’ motion was refused with costs.

The case was then carried to the Irish Court of Appeal. In accordance with the opinions there delivered by LORD ASHBOURNE, CHANCELLOR, PORTER, M. R., WALKER, L. J., and HOLMES, L. J., the decision below, as to the verdict and judgment for £200, was affirmed with costs; the judgment for the plaintiff being amended by omitting the part as to the recovery of £50 damages which was separately assessed on account of the “black list.”

HOLMES, L. J., said: “The ‘black list’ was only an overt act of the conspiracy, and the sum awarded for it is included in the £200.”

One of the defendants, Quinn, appealed to the House of Lords.

LORD CHANCELLOR HALSBURY, LORDS MACNAGHTEN, SHAND, BRAMPTON, ROBERTSON, and LINDLEY delivered opinions in favor of dismissing the appeal.

EARL OF HALSBURY, L. C.

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[As to the effect of the decision in Allen _v._ Flood.]

Now the hypothesis of fact upon which Allen _v._ Flood was decided by a majority in this House was that the defendant there neither uttered nor carried into effect any threat at all: he simply warned the plaintiff’s employers of what the men themselves, without his persuasion or influence, had determined to do, and it was certainly proved that no resolution of the trade union had been arrived at at all, and that the trade union official had no authority himself to call out the men, which in that case was argued to be the threat which coerced the employers to discharge the plaintiff. It was further an element in the decision that there was no case of conspiracy or even combination. What was alleged to be done was only the independent and single action of the defendant, actuated in what he did by the desire to express his own views in favor of his fellow-members. It is true that I personally did not believe that was the true view of the facts, but, as I have said, we must look at the hypothesis of fact upon which the case was decided by the majority of those who took part in the decision.

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LORD MACNAGHTEN.

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I do not think that the acts done by the defendants were done “in contemplation or furtherance of a trade dispute between employers and workmen.” So far as I can see, there was no trade dispute at all. Leathem had no difference with his men. They had no quarrel with him. For his part he was quite willing that all his men should join the union. He offered to pay their fines and entrance moneys. What he objected to was a cruel punishment proposed to be inflicted on some of his men for not having joined the union sooner. There was certainly no trade dispute in the case of Munce. But the defendants conspired to do harm to Munce in order to compel him to do harm to Leathem, and so enable them to wreak their vengeance on Leathem’s servants who were not members of the union.

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LORD LINDLEY.[604] My Lords, the case of Allen _v._ Flood, [1898] A. C. 1, has so important a bearing on the present appeal that it is necessary to ascertain exactly what this House really decided in that celebrated case. It was an action by two workmen of an iron company against three members of a trade union, namely, Allen and two others, for maliciously, wrongfully, and with intent to injure the plaintiffs, procuring and inducing the iron company to discharge the plaintiffs.[605] The action was tried before Kennedy, J., who ruled that there was no evidence to go to the jury of conspiracy, intimidation, coercion, or breach of contract. The result of the trial was that the plaintiffs obtained a verdict and judgment against Allen alone. He appealed, and the only question which this House had to determine was whether what he had done entitled the plaintiffs to maintain their action against him. What the jury found that he had done was, that he had maliciously induced the employers of the plaintiffs to discharge them, whereby the plaintiffs suffered damage. Different views were taken by the noble Lords who heard the appeal as to Allen’s authority to call out the members of the union, and also as to the means used by Allen to induce the employers of the plaintiffs to discharge them; but, in the opinion of the noble Lords who formed the majority of Your Lordships’ House, all that Allen did was to inform the employers of the plaintiffs that most of their workmen would leave them if they did not discharge the plaintiffs.[606] There being no question of conspiracy, intimidation, coercion, or breach of contract, for consideration by the House, and the majority of their Lordships having come to the conclusion that Allen had done no more than I have stated, the majority of the noble Lords held that the action against Allen would not lie; that he had infringed no right of the plaintiffs; that he had done nothing which he had no legal right to do, and that the fact that he had acted maliciously and with intent to injure the plaintiffs did not, without more, entitle the plaintiffs to maintain the action.

My Lords, this decision, as I understand it, establishes two propositions: one a far-reaching and extremely important proposition of law, and the other a comparatively unimportant proposition of mixed law and fact, useful as a guide, but of a very different character from the first.

The first and important proposition is that an act otherwise lawful, although harmful, does not become actionable by being done maliciously in the sense of proceeding from a bad motive, and with intent to annoy or harm another. This is a legal doctrine not new or laid down for the first time in Allen _v._ Flood, [1898] A. C. 1; it had been gaining ground for some time, but it was never before so fully and authoritatively expounded as in that case. In applying this proposition care, however, must be taken to bear in mind, first, that in Allen _v._ Flood, [1898] A. C. 1, criminal responsibility had not to be considered. It would revolutionize criminal law to say that the criminal responsibility for conduct never depends on intention. Secondly, it must be borne in mind that even in considering a person’s liability to civil proceedings the proposition in question only applies to “acts otherwise lawful,” i. e., to acts involving no breach of duty, or, in other words, no wrong to any one. I shall refer to this matter later on.

The second proposition is that what Allen did infringed no right of the plaintiffs, even although he acted maliciously and with a view to injure them. I have already stated what he did, and all that he did, in the opinion of the majority of the noble Lords. If their view of the facts was correct, their conclusion that Allen infringed no right of the plaintiffs is perfectly intelligible, and indeed unavoidable. Truly, to inform a person that others will annoy or injure him unless he acts in a particular way cannot of itself be actionable, whatever the motive or intention of the informant may have been.

My Lords, the questions whether Allen had more power over the men than some of their Lordships thought, and whether Allen did more than they thought, are mere questions of fact. Neither of these questions is a question of law, and no court or jury, is bound as a matter of law to draw from the facts before it inferences of fact similar to those drawn by noble Lords from the evidence relating to Allen in the case before them.

I will pass now to the facts of this case, and consider (1) what the plaintiff’s rights were; (2) what the defendants’ conduct was; (3), whether that conduct infringed the plaintiff’s rights. For the sake of clearness it will be convenient to consider these questions in the first place apart from the statute which legalizes strikes, and in the next place with reference to that statute.

1. As to the plaintiff’s rights. He had the ordinary rights of a British subject. He was at liberty to earn his own living in his own way, provided he did not violate some special law prohibiting him from so doing, and provided he did not infringe the rights of other people. This liberty involved liberty to deal with other persons who were willing to deal with him. This liberty is a right recognized by law; its correlative is the general duty of every one not to prevent the free exercise of this liberty, except so far as his own liberty of action may justify him in so doing. But a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffered from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact—in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified—the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done. Our law, as I understand it, is not so defective as to refuse him a remedy by an action under such circumstances. The cases collected in the old books on actions on the case, and the illustrations given by the late Bowen, L. J., in his admirable judgment in the Mogul Steamship Company’s Case, 23 Q. B. D. 613, 614, may be referred to in support of the foregoing conclusion, and I do not understand the decision in Allen _v._ Flood, [1898] A. C. 1, to be opposed to it.

If the above reasoning is correct, Lumley _v._ Gye, 2 E. & B. 216, was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, nor indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him. Temperton _v._ Russell, [1893] 1 Q. B. 715, ought to have been decided and may be upheld on this principle. That case was much criticised in Allen _v._ Flood, [1898] A. C. 1, and not without reason; for, according to the judgment of Lord Esher, the defendants’ liability depended on motive or intention alone, whether anything wrong was done or not. This went too far, as was pointed out in Allen _v._ Flood, [1898] A. C. 1. But in Temperton _v._ Russell, [1893] 1 Q. B. 715, there was a wrongful act, namely, conspiracy and unjustifiable interference with Brentano, who dealt with the plaintiff. This wrongful act warranted the decision, which I think was right.

2. I pass on to consider what the defendants did. The appellant and two of the other defendants were the officers of a trade union, and the jury have found that the defendants wrongfully and maliciously induced the customers of the plaintiff to refuse to deal with him, and maliciously conspired to induce them not to deal with him. There were similar findings as to inducing servants of the plaintiff to leave him. What the defendants did was to threaten to call out the union workmen of the plaintiff and of his customers if he would not discharge some non-union men in his employ. In other words, in order to compel the plaintiff to discharge some of his men, the defendants threatened to put the plaintiff and his customers, and persons lawfully working for them, to all the inconvenience they could without using violence. The defendants’ conduct was the more reprehensible because the plaintiff offered to pay the fees necessary to enable his non-union men to become members of the defendants’ union; but this would not satisfy the defendants. The facts of this case are entirely different from those which this House had to consider in Allen _v._ Flood, [1898] A. C. 1. In the present case there was no dispute between the plaintiff and his men. None of them wanted to leave his employ. Nor was there any dispute between the plaintiff’s customers and their own men, nor between the plaintiff and his customers, nor between the men they respectively employed. The defendants called no witnesses, and there was no evidence to justify or excuse the conduct of the defendants. That they acted as they did in furtherance of what they considered the interests of union men may probably be fairly assumed in their favor, although they did not come forward and say so themselves; but that is all that can be said for them. No one can, I think, say that the verdict was not amply warranted by the evidence. I have purposely said nothing about the black list, as the learned judge who tried the case considered that the evidence did not connect the appellant with that list. But the black list was, in my opinion, a very important feature in the case.