sufficiency of evidence. In this view also the doctrine seems to be merely a development of the doctrine already considered, that an act otherwise lawful may be made unlawful by an intent to injure. This on the supposition that it is easier to show the intent of an act done in pursuance of a combination of individuals to do the same act, than if done by a single individual.' But, without adopting the suggestion that has been made, that the doctrine finds its origin in a mere misconception of the law of criminal conspiracy, we venture to suggest that, until its precise warrant and ground are better defined, it should not be allowed a place in our jurisprudence. It has been especially applied to combinations to refuse to deal (boycotts), and to combinations to quit employment (strikes). But its existence has been thus

do so. But when we suppose that all or nearly all the engineers on the eight different defendant companies combine with their chief to do these unlawful acts for the purpose of injuring complainant, the intended loss becomes, not only probable, but inevitable." See similar observations in State v. Donaldson, 32 N. J. Law, 151 (1867); and compare Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. Rep. 803, 821 (Cir. Ct. Ohio, 1894).

1 Thus, in Gregory v. Duke of Brunswick, 6 Manning & Gr. 953, 959 (1844), which we have (see p. 15, above) referred to as perhaps the origin of the doctrine, it is said: "The act of hissing in a public theater is prima facie a lawful act; and even if it should be conceded that such an act, though done without concert with others, if done from a malicious motive, might furnish a ground of action, yet it would be very difficult to infer such a motive from the insulated acts of one person unconnected with others." So in Moores v. Bricklay

ers' Union (see p. 15, above), it is said that "the combination is material in being strong evidence of the malice with which the act is done." In this connection we may note a different, though somewhat analogous, ground suggested by Lord Bramwell, in Mogul S. S. Co. v. McGregor (see p. 15, above), 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."

2 Thus, in Bohn Manuf. Co. v. Hollis, p. 17, below (p. 234), it is said of the authorities asserting the doctrine just considered, that "they evidently have their origin in a confused and inaccurate idea of the law of criminal conspiracy, and in failing to distinguish between an unlawful act and a criminal one. It can never be a crime to combine to commit a lawful act." See, however, note 1, above.

vigorously attacked: "What one man may lawfully do sin gly, two or more may lawfully agree to do jointly. The number who unite to do the act cannot change its character from lawful to unlawful. The gist of a private action for the wrongful act of many is not the combination or conspiracy, but the damage done or threatened to the plaintiff by the acts of the defendants. If the act be lawful, the combination of many to commit it may aggravate the injury, but cannot change the character of the act."1

§ 5. Relation of trade competitor as justifying act injuring another.— In all ages those engaged in trade have striven for success at the expense of their rivals. In ruder ages, as indeed still is the case in the newer and comparatively unsettled regions open to trade, traders frequently resort to acts, not alone of fraud, but of violence, even to robbery and murder. Such acts are condemned by the common law of England, as indeed by the law of every civilized nation. There remain, however, many acts which, like

1 Bohn Manuf. Co. v. Hollis, 54 Minn. 223, 234; s. c., 55 N. W. Rep. 1119 (1893). The same doctrine was applied under similar conditions in Macauley v. Tierney, 19 R. I. 255; s. c., 33 Atl. Rep. 1 (1895), both being cases of refusal to deal. It is contended for with great force and eloquence in the dissenting opinion of Caldwell, J., in Hopkins v. Oxley Stave Co., 49 U. S. App. 709, 736; s. c., 83 Fed. Rep. 912, 930 (8th Cir., 1897). Compare Payne v. Western & Atlantic R. R. Co., 13 Lea (Tenn.), 507, 521 (1884); Lewin v. Welsbach Light Co., 81 Fed. Rep. 904 (Cir. Ct. Pa., 1897); Delz v. Winfree, 80 Tex. 400, 404; s. c., 16 S. W. Rep. 111 (1891); Olive v. Van Patten, 7 Tex. Civ. App. 630; s. c., 25 S. W. Rep. 428 (1894); Continental Ins. Co. v. Board of Underwriters, 67 Fed. Rep. 310 (Cir. Ct. Cal., 1895). In

Clemmitt v. Watson, 14 Ind. App. 38; s. c., 42 N. E. Rep. 367 (1895), where it was held not unlawful to cause a co-employee to be thrown out of work by agreeing to quit, the court say: "What each one could rightfully do, certainly all could do if they so desired, especially when their concerted action was taken peaceably, without any threats, violence or attempt at intimidation."

2 As instances are given "fraud, misrepresentation, intimidation, coercion, obstruction or molestation of the rival or his servants or workmen, and the procurement of violation of contractual relations." Macauley v. Tierney, 19 R. I. 255; s. c., 33 Atl. Rep. 1 (1895). Not all of the instances here given are, however, beyond the realm of debate; for instance, "the procure

those just considered, are done with intent to injure a trade rival, and yet are generally regarded as entirely lawful.1 What is the test of separation between these classes? If the doctrine already contended for be correct, namely, that the test of liability for an act producing injury is in no case the intent of the act, but purely whether the act was the natural incident or outgrowth of some existing lawful relation, we may state, by way of application of this doctrine to the relation of competitor in trade, that the existence of the relation of trade competitor justifies acts that are the natural incident or outgrowth of such relation, whether or not done with the direct intent to injure one's rival. In this view,

ment of violation of contractual
relations." See § 13.
1 The legality of such acts was
very early established. Thus, in a
case decided in 1410 (11 Henry 4,
fol. 47, pl. 21), referred to fre-
quently in Allen v. Flood, L. R.
App. Cas. (1898), 1, and holding
that a school-master setting up
a school to the damage of an an-
cient school, whereby the scholars
were allured from the old school
to come to his, committed no ac-
tionable wrong. So it is said in
Commonwealth v. Hunt, 4 Metc.
(Mass.) 111, 134 (1892): "We think
that associations may be entered
into, the object of which is to
adopt measures that may have a
tendency to impoverish another,
that is, to diminish his gains and
profits, and yet, so far from being
criminal or unlawful, the object
may be highly meritorious and
public-spirited. The legality of
such an association will therefore
depend upon the means to be used
for its accomplishment." To simi-
lar effect, Bohn Manuf. Co. v. Hollis,
54 Minn. 223, 233; s. c., 55 N. W.

Rep. 1119 (1893); Macauley v. Tierney, p. 17, above. See Walker v. Cronin, 107 Mass. 555, 564 (1871); Curran v. Treleaven, 2 L. R. Q. B. (1891), 560; Mogul S. S. Co. v. McGregor, p. 20, below.

2 With this statement compare the following language in the dissenting opinion of Holmes, J., în Vegelahn v. Guntner, 167 Mass. 92, 106; s. c., 44 N. E. Rep. 1077 (1896): "The policy of allowing free competition justifies the intentional inflicting of temporal damage, including the damage of interference with a man's business by some means, when the damage is done not for its own sake, but as an instrumentality in reaching the end of victory in the battle of trade. In such a case it cannot matter whether the plaintiff is the only rival of the defendant, and so is aimed at specifically, or is one of a class all of whom are hit. The only debatable ground is the nature of the means by which such damage may be inflicted." It was in accordance with this doctrine that in Allen v. Flood, above

acts that are not the natural incident or outgrowth of such relation are not justified. Or we may express the distinction as one between "fair" and "unfair" competition. Thus, the acts of fraud and violence just considered do not, in any proper sense of the words, come under the description of "fair competition," or of "natural incidents or outgrowths" of the relation of trade competitor. On the other hand, there are acts that come so clearly under such description that their legality is generally conceded. We may cite by way of illustration, setting up an opposition line of conveyance, or a rival hotel in the same town, introducing improvements, and generally the manifold devices involved in modern methods of advertising. But there is a border class of cases as to which has existed considerable difference of judicial opinion. It may not be easy to conceive of an act done by a trade competitor that is not only the natural incident or outgrowth of his relation as such, but is also done purely with intent to injure his rival, and without any intent to benefit himself. If there are such

2

(pp. 103, 135), the court condemned Carrington v. Taylor, 11 East, 571 (1809), where a person was held liable for injury resulting from firing shots while in pursuit of his own occupation as hunter of wild fowl. In Ajello v. Worsley, 1 L. R. Ch. (1898), 274, an injunction was refused against a dealer advertising for sale goods manufactured by the plaintiff, though without having such in his possession. The court makes the distinction between the case under consideration, as one of an untrue statement relating to the defendant's own business, and cases of untrue statements regarding the plaintiff's business.

1 What we may call the doctrine of "unfair competition" is as yet

in its infancy. Within the scope of such competition fall a class of cases that increasingly attract attention, and involve what are called in Browne on Trade-marks, “rights analogous to those of trade-marks." (See 2d ed., §§ 521-564.) On this subject see articles by G. D. Custano in 4 Harv. Law Rev. 321 (1891); by Rowland Cox in 5 Id. 139 (1891); by O. R. Mitchell in 10 Id. 275 (1896); also by J. F. Iselin on "The New German Law of Unfair Competition," in 13 Law Quart. Rev. 156 (1897).

2 See Commonwealth v. Hunt, 4 Metc. (Mass.) 111 (1842); Van Horn v. Van Horn, 56 N. J. Law, 318, 323; S. C., 28 Atl. Rep. 669 (1894); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 116; s. c., 30 Atl. Rep. 881 (1894).

acts, we submit that, within the doctrine above stated, they are entirely lawful. But it will be found as a rule that an act done with intent to injure a trade rival is also done with the intent to benefit oneself; and we shall assume this to be true in the cases hereafter considered. The test that we consider the proper one to apply to every such case (ignoring entirely the existence or non-existence of intent), namely, whether the act is a natural incident or outgrowth of the relation of trade competitor,2 may not always be easy to apply