complish some purpose, not in itself criminal or unlawful, by criminal or unlawful means." 1 The question when, within the meaning of this definition, an act is unlawful, has been one of considerable difficulty. It seems clear that not all unlawful acts are included.' But, without further discussing the point, we content ourselves with the suggestion that seems sufficient to cover the authorities, namely, that the doctrine extends to agreements to deprive another of his liberty or property. In any given case the decision is likely 1 Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 123 (1842). See also Carew v. Rutherford, 106 Mass. 1, 10 (1870); State v. Stewart, 59 Vt. 273, 286; s. c., 9 Atl. Rep. 559 (1887). In Commonwealth v. Hunt, a criminal conspiracy was held not charged in an indictment alleging that "the defendants, with others unknown, did assemble, conspire, confederate and agree together, not to work for any master or person who should employ any workman not being a member of a certain club, society or combination called the Boston Journeymen Bootmakers' Society, or who should break any of their by-laws, unless such workmen should pay to said club such sum as should be agreed upon as a penalty for the breach of such unlawful rules, etc.; and that by means of said conspiracy they did compel one W., a master cordwainer, to turn out of his employ one H., a journeyman bootmaker, etc.,in evil example," etc. The court say (p. 131): "The averment of a conspiracy is simply an averment of an agreement amongst themselves not to work for a person who should employ any person not a member of a certain association. It sets forth no illegal or criminal purpose to be accomplished, nor any illegal or criminal means to be adopted for the accomplishment of any purpose. It was an agreement as to the manner in which they would exercise an acknowledged right to contract with others for their labor." The averment as to compelling W. to turn H. out of his employ was held mere matter of aggravation that could not supply the want of allegation of a conspiracy, or, regarding it a substantive charge, was held not to allege a criminal conspiracy, in view of the connection in which it was used. The court, however, interpreted the agreement as not covering the case of quitting employment on breach of a contract for a fixed period, or inducing others to so quit, saying: "If a large number of men, engaged for a certain time, should combine together to violate their contract and quit their employment together, it would present a very different question." 2 See State v. Glidden, note 3, below (p. 70); Commonwealth v. Hunt, note 1, above (p. 124). 3 State v. Glidden, 55 Conn. 46, 71; S. C., 8 Atl. Rep. 890 (1887), where see the ordinary definitions discussed and criticised. In Commonwealth to be governed by the local law applicable. It remains to point out that the doctrine has never been carried to the extent of creating a civil liability for a conspiracy not carried into effect, though it seems to have had an influence in developing the doctrine presently to be considered, that the fact of combination creates a civil liability where otherwise it would not exist. § 4. Combination as element of civil liability.— As we have just seen, the doctrine seems well established that a combination to commit a crime, or (with certain limitations) v. Hunt, note 1, above (p. 121), the injuries included in the definition are described as to "the public, or portions or classes of the community, or even to the rights of an individual." In State v. Stewart, below (p. 287), are included combinations that "seek to restrain trade or tend to the destruction of the material prosperity of the country" as "working injury to the public." Thus, in King v. Eccles, 3 Douglas, 337 (1783), the indictment sustained was for a conspiracy to impoverish a person and to deprive and hinder him from following and exercising his trade. In Crump v. Commonwealth, 84 Va. 927; s. C., 6 S. E. Rep. 620 (1888), to injure persons in their business by making threats to their customers. In State v. Stewart, 59 Vt. 273; S. C., 9 Atl. Rep. 559 (1887), to prevent, hinder and deter a corporation from employing certain persons, and to frighten them away from such employment. Here the subject is very elaborately discussed. After declaring it to be a criminal conspiracy to combine to coerce the free choice of every man to employ his talents, industry and capital as he pleases, it is said (p. 289): "While such conspiracies may give to the individual directly affected by them a private right to action for damages, they at the same time lay a basis for an indictment on the ground that the state itself is directly concerned in the promotion of all legitimate industries and the development of all its resources, and owes the duty of protection to its citizens engaged in the exercise of their callings." This language was approved and applied in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 719; S. C., 83 Fed. Rep. 912, 919 (8th Cir., 1897). In State v. Dyer, 67 Vt. 690; s. C., 32 Atl. Rep. 814 (1894), the conspiracy was not only to induce an employer to discharge an employee, but to prevent him from obtaining other employment. The inducing his discharge was, according to the doctrine stated in § 10, an unlawful act, but the preventing him from obtaining other employment was not so, irrespective of the means employed. As to the criminality of combinations in restraint of competition, see § 28. Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 121 (1842). any other unlawful act, subjects the members of the combination to criminal liability, though the act proposed be not done. But, at least until recently, it seems to have been equally well established that under these conditions no civil liability exists, or, as it has been said, "an action will not lie for the greatest conspiracy imaginable, if nothing be put in execution." If, however, in pursuance of the conspiracy, 1 Savile v. Roberts, 1 Lord Raymond, 374 (1697); Hutchins v. Hutchins, Hill (N. Y.), 104, 108 (1845); Adler v. Fenton, 24 How. (U.S.) 407, 410 (1860); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 739 (Cir. Ct. Ohio, 1893); Brewster v. Miller, Ky.; s. C., 41 S. W. Rep. 301 (1897); Mogul S. S. Co. v. McGregor, 23 L. R. Q. B. D. 598, 616 (1889); Temperton v. Russell, 1 L. R. Q. B. (1893), 715. In United States v. Elliott, 64 Fed. Rep. 27,32 (Cir. Ct. Mo., 1894), it is said of the decision in Arthur v. Oakes, 24 U. S. App. 239; s. C., 63 Fed. Rep. 310 (7th Cir., 1894), modifying Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803 (Cir. Ct. Wis., 1894), that "no public decision has perhaps been so much misunderstood, or ignorantly or intentionally misrepresented and perverted." But the confusion produced by this decision is, we submit, largely due to the failure of the court to keep in mind this well established distinction between criminal and civil liability for conspiracy. Here, though an injunction against employees of the receivers of a railroad, restraining them from "quitting the service of the said receivers with or without notice," was refused, yet one was allowed against their "com bining and conspiring to quit with or without notice the service of said receivers, with the object and intent of crippling the property in their custody or embarrassing the operation of said railroad." See Re Higgins, 27 Fed. Rep. 443 (Cir. Ct. Tex., 1886). There being nothing objectionable, then, in the mere quitting (24 U. S. App. 255), the vice, if any, lay in the combination and conspiracy to cripple property or embarrass the operation of the railroad. How came the court to grant this injunction in a civil proceeding? The case would have been otherwise if the injunction had been limited to merely "crippling the property, or embarrassing the operation of the road," and it would seem on principle, that the injunction, if proper at all under the circumstances, should have been so limited, specifying, so far as needful (see p. 261), the particular acts of violence desirable to prevent. That the court entirely overlooked the distinction between civil and criminal liability for conspiracy seems clear from what is thus said (p. 257): “ According to the principles of the common law, a conspiracy upon the part of two or more persons, with the intent, by their combined powers, to wrong others, is in itself an act is done injurious to any person, the conspirators are civilly liable to him.' Quite recently has sprung into recognition the doctrine that an act, entirely lawful if done by a single individual, may be unlawful by reason of being done in pursuance of a combination of individuals to do the same act. According to some authorities, however, the doctrine illegal, although nothing be done in execution of such conspiracy. This is fundamental in our jurisprudence." Hence the result reached in Arthur v. Oakes is that an injunction may be granted against an act which in its civil aspect is entirely lawful. The cases cited by the court to show the illegality of the conspiracy are all criminal proceedings. See comments on this decision in United States v. Elliott, p. 13, above. In Longshore Printing Co. v. Howell, 26 Oreg. 527, 547; S. C., 38 Pac. Rep. 547 (1894), the court, apparently relying on the reasoning of and authorities cited in Arthur v. Oakes, fall into like confusion of ideas, and conclude that "there is no good reason why civil liabilities may not ensue by reason of a conspiracy to commit that which is made unlawful by statute." So in Elder v. Whitesides, 72 Fed. Rep. 724 (Cir. Ct. La., 1895), Arthur v. Oakes was followed in granting an injunction against a mere conspiracy to prevent the loading or unloading of a vessel except by such labor as might be acceptable to the defendants, but without any overt unlawful act. 1 Carew v. Rutherford, 106 Mass. 1, 10 (1870); Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 739 (Cir. Ct. Ohio, 1893); Van Horn v. Van Horn, 52 N. J. Law, 284; s. c., 20 Atl. Rep. 485 (1890); Temperton v. Russell, 1 L. R. Q. B. (1893), 715. 2 Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 740 (Cir. Ct. Ohio, 1893); Same v. Same, Id. 746 (Cir. Ct. Ohio, 1893; quitting of train by engineer); Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889; inducing refusal to deal); Mogul S. S. Co. v. McGregor, L. R. App. Cas. (1892), 25, 38, 45; Cote v. Murphy, 159 Pa. St. 420, 427, 431; s. c., 28 Atl. Rep. 190 (1894). Though not so stated, this seems to be the ground on which Mapstrick v. Ramge, 9 Neb. 390; s. c., 2 N. W. Rep. 739 (1879), a case of quitting of employment, is sustainable, if at all. See also Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811, 823 (Cir. Ct. Ohio, 1897); Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173, 186 (1871); Doremus v. Hennessy, 62 Ill. App. 391, 402 (1895); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 123; s. C., 30 Atl. Rep. 881 (1894); People v. Duke, 19 Misc. (N. Y.) 292 (N. Y. County General Sessions, 1897); Dueber Watch-Case Manuf. Co. v. E. Howard Watch & Clock Co., 35 U. S. App. 16, 29, 38; s. C., 66 Fed. Rep. 637,645, 651 (2d Cir., 1895). Though not so distinctly stated, the existence of a combination seems largely to have influ seems rather to be that it is easier to show the illegality of an act when done in pursuance of a combination of individuals to do the same act, than if done by a single individual. In this view the difference is not as to liability, but as to the enced the decision in Curran v. Galen, 152 N. Y. 33; s. c., 46 N. E. Rep. 297 (1897). The origin of this doctrine is somewhat obscure, but perhaps it may be referred to some remarks in Gregory v. Duke of Brunswick, 6 Manning & Gr. 953, 959 (1844). See Temperton v. Russell, 1 L. R. Q. B. (1893), 715; Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cinn., 1889); also p. 16, note 1, below. But although the doctrine, largely American as to development, is professedly based on English decisions, it seems now clear that it has been repudiated in England. Thus, in Huttley v. Simmons, 1 L. R. Q. B. (1898), 181, where an action for conspiring with others to induce a person not to employ the plaintiff was held not maintainable, the court say: "Conspiracy to do certain acts gives a right of action only where the acts agreed to be done, and in fact done, would, had they been without preconcert, have involved a civil injury to the plaintiff." The same result had been reached in Kearney v. Lloyd, 26 L. R. (Ireland), 268 (1889). As indicating the supposed grounds of the doctrine, the following remarks are suggestive: "A man may encounter the acts of a single person, yet not be fairly matched against several." Lord Bramwell, in Mogul S. S. Co. v. McGregor, p. 14, above. "The combination is material in giving the act a different character from a similar act of an individual by rea son of its greater, more dangerous and oppressive effect." Moores v. Bricklayers' Union, above. "Any one man, or any of several men, acting independently, is powerless; but, when several combine and direct their united energies to the accomplishment of a bad purpose, the combination is formi. dable. Its power for evil increases as its numbers increase." State v. Glidden, 55 Conn. 46, 75; s. c., 8 Atl. Rep. 890 (1887). To similar effect, Arthur v. Oakes, 24 U. S. App. 239, 258; s. c., 63 Fed. Rep. 310, 321 (7th Cir., 1894) (as to which see, however, p. 13, above); United States v. Elliott, 64 Fed. Rep. 27, 32 (Cir. Ct. Mo., 1894). So in Toledo, Ann Arbor, etc. Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730, 739 (Cir. Ct. Ohio, 1893), involving the legality of a quitting of employment by railroad engineers, it is said: "Ordinarily the only difference between the civil liability for acts done in pursuance of a conspiracy and for acts of the same character done by a single person is in the greater probability that such acts, when done by many in a combination, will cause injury. . . . The difficulty in supposing or stating any civil liability when the acts we have been discussing are done by a single engineer is in the improbability that either by singly refusing to handle the freight he could cause any injury to complainant, or by singly threatening to quit or by quitting he could procure his company to |