country (p). The material facts may, perhaps, be fairly summarized, for the present purpose, as follows:—A., B., and C. were the only persons engaged in a certain foreign trade, and desired to keep the trade in their own hands. Q. threatened, and in fact commenced, to compete with them. A., B., and C. thereupon agreed to offer specially favourable terms to all customers who would agree to deal with themselves to the exclusion of Q. and all other competitors outside the combination. This action had the effect of driving Q. out of the market in question, as it was intended to do. It was held that A., B., and C. had done nothing which would have been unlawful if done by a simple trader in his own sole interest, and that their action did not become unlawful by reason of being undertaken in concert by several persons for a common interest. The agreement was in restraint of trade, and could not have been enforced by any of the parties if the others had refused to execute it, but that did not make it punishable or wrongful (2). It is possible, however, that an agreement of this kind might in some cases be held to amount to an indictable conspiracy on the ground of obvious and excessive public inconvenience (r). At the same time, even if this be admitted, it would not be easy for a court to say beforehand how far any particular trade combination was likely to have permanently mischievous results (s). (p) Mogul Steamship_Company McGregor (1889) 23 Q. B. Div. 598, 58 L. J. Q. B. 465 (diss. Lord Esher M. R.). (g) 23 Q. B. Div. at p. 619, per Bowen L. J.; ib. 626, per Fry L. J. Lord Esher was apparently prepared to hold that whenever A. and B. make an agreement which, as between themselves, is void as in restraint of trade, and C. suffers damage as a proximate consequence, A. and B. are wrongdoers as against C. (r) Bowen L. J., 23 Q. B. Div. at p. 618. (s) Fry L. J., at p. 628. Malicious inter ference оссира tion, There may be other malicious injuries not capable of more specific definition "where a violent or malicious act with one's is done to a man's occupation, profession, or way of getting a livelihood"; as where the plaintiff is owner of a decoy for catching wild fowl, and the defendant, without entering on the plaintiff's land, wilfully fires off guns near to the decoy, and frightens wild fowl away from it (t). 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 (u), nuisance (v), 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 (r). 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 (y). "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" (≈). Driving a public performer off the stage by 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 (t) Carrington v. Taylor (1809) 11 East 571, following Keeble v. Hickeringill (1705) ib. 573 in notis, where see Holt's judgment. (u) Tarleton v. McGawley, Peake 270 [205]: the defendant's act in firing at negroes to prevent them from trading with the plaintiff's ship was of course unlawful per se. (y) Mogul Steamship Company v. p. 628. have just seen, a possible but doubtful instance (a). Holt put the case of a schoolmaster frightening away children. from attendance at a rival school (b). It is really on the contract, same principle that an action has been held to lie for maliciously (that is, with the design of injuring the plaintiff or gaining some advantage at his expense) procuring a third person to break his contract with the plaintiff, and thereby causing damage to the plaintiff (c). 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. chise. Generally speaking, every wilful interference with the or franexercise 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 and is hindered in the enjoyment thereof, an action doth lie, which is an action upon the case" (d). But persons may position in which as public officers be in a quasi-judicial (a) Gregory v. Duke of Brunswick, supra. (b) Keeble v. Hickeringill, note (t) last page. (c) 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. (d) 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. Mainte nance. malicious, denial of right (e). In such cases the wrong, if any, belongs to the class we have just been considering. 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" (f). Hence it seems that a corporation cannot be guilty of maintenance (f). Actions for maintenance are in modern times rare though possible (g); 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 (h), does not tend to encourage them. (e) Tozer v. Child (1857) Ex. Ch. 7 E. & B. 377, 26 L. J. Q. B. 151. (f) Lord Selborne, Metrop. Bank v. Pooley (1885) 10 App. Ca. 210, 218, 54 L. J. Q. B. 449. (g) Bradlaugh v. Newdegate (1883) 11 Q. B. D. 1, 52 L. J. Q. B. 454. (h) Harris v. Brisco (1886) 17 Q. B. Div. 504, 55 L. J. Q. B. 423. CHAPTER IX. WRONGS TO POSSESSION AND PROPERTY. 287 I.-Duties regarding Property generally. respect property. EVERY kind of intermeddling with anything which is the Absolute subject of property is a wrong unless it is either autho- duty to rized by some person entitled to deal with the thing in others? 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 acting for our own interest (a), or even an honest intention to act for the benefit of the true owner (6), will avail us nothing if we transgress. tification, excuse. A man may be entitled in divers ways to deal with Title, jusproperty moveable or immoveable, and within a wider or narrower range. He may be an owner in possession, with indefinite rights of use and dominion, free to give or to sell, nay to waste lands or destroy chattels if such be his pleasure. He may be a possessor with rights either determined as to length of time, or undetermined though determinable, and of an extent which may vary from being hardly distinguishable from full dominion to being strictly limited to a specific purpose. It belongs to the (a) Hollins v. Fowler (1875) L. R. 7 H. L. 757, 44 L. J. Q. B. 169. (b) In trespass, Kirk v. Gregory (1876) 1 Ex. D. 55, 45 L. J. Ex. |