bination is superfluous so far as the mere question of civil liability is concerned. Though the mere inducement to quit employment seems of itself to create no criminal liability,' yet, in accordance with the general doctrine of conspiracy to do a merely unlawful act not criminal,2 conspiracies to induce employees to quit their employment have been held to create a criminal liability. As already noted, the rule applies whether the employee is at the time under a contract to serve or not. There is doubtless a growing consciousness in the judicial mind that a doctrine so anomalous, and originating in conceptions of social relations that are utterly repugnant to those now prevailing, is ill adapted to present conditions. Even long ago it was settled that an enter with a body of men upon the premises of an employer, with the purpose of inciting his employees to strike. Clothing Cutters', etc. Assembly, 77 Md. 396; s. c., 26 Atl. Rep. 505 (1893), the latter a case of the notification to an employer by a labor union that 1 See Wood on Master and Serv- in case of his retention in his emant (2d ed.), § 239. 2 See § 3. 3 Reg. v. Duffield, 5 Cox C. C. 404 (1851); State v. Stewart, p. 45, above. 4 See note 4, p. 44, above. Thus, in Walker v. Cronin, 107 Mass. 555, 566 (1871), it was said, referring to Gunter v. Astor, 4 Moore, 12 (1819): "The discussion indicates that damages were considered to be recoverable for the breaking up or disturbance of the business of the plaintiff, whereby he suffered the loss of his usual profits for a long period. The grounds of damage were apparently regarded as altogether independent of the mere loss of any contracts with the workmen." So, too, the liability was declared, notwithstanding the absence of contract, in Johnston Harvester Co. v. Meinhardt, 60 How. Pr. (N. Y.) 168 (Supm. Ct., Sp. T., 1880); Lucke v. ploy of the plaintiff, a "customs cutter," all labor organizations in the city would be notified that his house was a non-union house. So in Vegelahn v. Guntner, 167 Mass. 92; s. c., 44 N. E. Rep. 1077 (1896), the liability was declared in the case of persons seeking to enter the employment, as well as of those already in it. See also Consolidated Steel & Wire Co. v. Murray, 80 Fed. Rep. 811, 828 (Cir. Ct. Ohio, 1897), and cases of inducing employer to discharge employee (note 3, p. 48, below). But see Chipley v. Atkinson, 23 Fla. 206; s. c., 1 So. Rep. 934 (1887); Lucke v. Clothing Cutters', etc. Assembly, above, to the effect that if the plaintiff alleges employment for a fixed period he must prove the allegation. 5 For instance, in Rogers v. Evarts, 17 N. Y. Suppl. 264 (Supm. Ct., Sp. T., 1891), the court questioned exception should be made of cases of ignorance by the inducing party of the relationship of employee and employer.1 And there is perhaps observable a tendency to introduce, by way of modification, a rule that when fully developed will be as follows: The test of liability for inducing an employee to quit his employment is whether the act of inducement was the incident or outgrowth of some existing lawful relation.* But inasmuch as the doctrine is so deeply imbedded in the the soundness of the doctrine, and refused an injunction against acts within such doctrine, on the ground that the case was one of doubtful right. mine) to cause the discharge of a co-employee by agreeing to quit work and thus stop the working of the mine, unless he was discharged; or to cause the stop 1 Wood on Master and Servant ping of such work, so that he was (2d ed.), § 238. 2 Thus, the relation of party to a contract. This seems to be the ground of the decision in Raycroft v. Tayntor, 68 Vt. 219; s. C., 35 Atl. Rep. 53 (1896), holding that no action would lie for causing the discharge of an employee, by threat ening the employer to terminate a contract that the defendant had the right to terminate at any time. See also § 2, p. 8, above. So the relation of employee. Thus, in Rogers v. Evarts, 17 N. Y. Suppl. 264 (Supm. Ct., Sp. T., 1891), it was held lawful for striking workmen to induce others to leave their employment by "persuasion and entreaty," the court saying that their action was "for an advantage in their business, which they had the right to seek by all lawful means." It was also held not unlawful to offer money as an inducement to quit. In Clemmitt v. Watson, 14 Ind. App. 38; S. C., 42 N. E. Rep. 367 (1895), it was held not actionable, in the absence of contractual relations, for two or more employees (in a coal thrown out of employment, by quitting work pursuant to agreement, upon the refusal of the employer to discharge him. In Chipley v. Atkinson, 23 Fla. 206; s. C., 1 So. Rep. 934 (1887), it does not clearly appear what the relation of the defendant to the matter was. This is distinguishable from Lucke v. Clothing Cutters', etc. Assembly, 77 Md. 396; s. c., 26 Atl. Rep. 505 (1893), (which followed Chipley v. Atkinson), where the defendants were a labor union composed of persons engaged in the same line of occupation as the plaintiff. The question might have been raised whether, assuming the absence of coercion, the similarity or solidarity of interest did not furnish a sufficient basis for the legality of the action. See § 12. The same observations seem applicable to Coons v. Chrystie, N. Y. Law Jour., July 21, 1898 (Supm. Ct., Sp. T.), where an organization of master plumbers and its officers were enjoined from "calling out” the plaintiff's employees on the 1 law, it is better to obtain relief against it by means of legislation than by the slow process of judicial modification. The practical mischief produced by allowing this doctrine to stand we shall presently consider, when we find that it has been extended from the mere relation of employer and employee to the relations of life generally. In this connection, however, we may note its converse application, namely, so as to create a liability for inducing an employer to refuse to continue to deal with an employee; in other words, to discharge him from employment.3 ground that he was not a member of the organization. It was SO held against the contention that "the workmen had agreed with the defendant society that they would not accept employment from unaffiliated persons, such as the plaintiff, and that by causing them to cease work the defendants merely caused the workmen to keep their promise,” the court saying: "It may be true that such an agreement would be valid as between the society and its members." In Walker v. Cronin, 107 Mass. 555, 563 (1871), it was intimated that the inducement is not unlawful if merely in the course of the exercise of the right to employ workmen in one's own business. 1 See, for instance, Appendix, and particularly New Jersey act of 1883 (ch. 287). See Mayer v. Journeymen Stonecutters' Assoc., 47 N. J. Eq. 519, 531; s. c., 20 Atl. Rep. 492 (1890); Barr v. Essex Trades Council, 53 N. J. Eq. 101, 119; s. c., 30 Atl. Rep. 881 (1894); Farmers' Loan & Trust Co. v. Northern Pacific R. R. Co., 60 Fed. Rep. 803, 815 (Cir. Ct. Wis., 1894). 2 See § 13. ; s. c., 75 N. W. Rep. 355 (1898). So notwithstanding the absence of a contract for any fixed period. Chipley v. Atkinson, 23 Fla. 206; s. c., 1 So. Rep. 934 (1887); Dannerberg v. Ashley, 10 Ohio Cir. Ct. 558 (1894); Perkins v. Pendleton, 90 Me. 166; s. c., 38 Atl. Rep. 96 (1897; here, however, there was an accompaniment of threats, etc., as to which see § 15). So in Connell v. Stalker, 20 Misc. 423; s. c., 45 N. Y. Suppl. 1048 (N. Y. City Ct., 1897), affirmed in 21 Misc. 609; s. c., 48 N. Y. Suppl. 77 (1897), where it does not appear that there was such a contract. So in State v. Donaldson, 32 N. J. Law, 151 (1867), it was held an indictable offense for workmen to combine to compel their employer to discharge certain of their fellow-workmen, the means adopted to enforce this concession being an announced determination to quit their employment in a body and by a simultaneous act. The authorities relied on are two English nisi prius cases, where the point was but briefly considered, Rex v. Ferguson, 2 Starkie, 431 (1819); Rex v. § 11. Boycott by trade competitor. We have already asserted the doctrine 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. As the very essence of competition in trade consists in the effort to divert business to oneself at the expense of one's rivals, it seems almost Bykerdike, 1 Moody & Rob. 179 (1832). Compare People v. Trequier, 1 Wheeler Cr. Cas. (N. Y.) 142 (1823); People v. Melvin, 2 Id. 262 (1810); Master Stevedores' Assoc. v. Walsh, 2 Daly, 1, 13 (1867); Reg. v. Hewitt, 5 Cox C. C. 162 (1851); Reg. v. Bunn, 12 Id. 316 (1872). To similar effect with State v. Donaldson is State v. Dyer, 67 Vt. 690; s. C., 32 Atl. Rep. 814 (1895), though here it does not appear that the guilty parties were employees; nor indeed does it appear what was their previous relation to the matter. On the other hand, in Commonwealth v. Hunt, 4 Metc. (Mass.) 111, 128 (1842), it was held not unlawful for employees to "form themselves into a society and agree not to work for any person who should employ any journeyman or other person not a member of such society, after notice given him to discharge such workman." (The court, however, interpreted such agreement as not applying to the discharge of a person "engaged by contract for a certain time, in violation of such contract"), (p. 130). And this accords with what is now the settled law in England. See Allen v. Flood, L. R. App. Cas. (1898), 1. See §§ 6, 12. Commonwealth v. Hunt is in State v. Donaldson, 32 N. J. Law, 151, 157 (1867), distinguished on what seems to us to be the unsubstantial ground, that the agreement to quit employment was in the form of a regulation of the society, and not specifically directed against any particular individual, or, to use the language of the court: "The force of this association was not concentrated with a view to be exerted to oppress any individual." Commonwealth V. Hunt is distinguished on the same ground in Crump v. Commonwealth, 84 Va. 927, 943; s. c., 6 S. E. Rep. 620 (1888). In an action for causing discharge from employment, recovery was allowed for the amount of wages that the plaintiff would have earned during the period that he was deprived of employment, and he was held not obliged to seek employment elsewhere. Connell v. Stalker, 20 Misc. 423; s. c., 45 N. Y. Suppl. 1048 (N. Y. City Ct., 1897); affirmed in 21 Misc. 609; s. c., 48 N. Y. Suppl. 77 (1897). 1 See § 5. 2 Very suggestive is the following statement in the dissenting opinion of Holmes, J., in Vegelahn v. Guntner, 167 Mass. 92, 106; s. c., 44 N. E. Rep. 1077 (1896), with refer. ence to the limits of lawful interference with the business of a trade rival. "We all agree, I pre difficult to understand how there ever originated the idea that there is anything inherently unlawful in an individual, or a combination of individuals, inducing others to refrain from dealing with a competitor in trade. But perhaps it may be said of the authorities that apparently go to that length, that they proceed on the supposition of the exist ence of coercion, as an element in addition to the mere inducement to refrain from dealing. Furthermore they proceed on the basis of the doctrine already considered, 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.2 Hence the question usually arises in connection with the operations of those who, by virtue of their numbers or the extent of their operations, or both, control business throughout a wide area, and within such limits, at least, are able to drive from the field of competition the person against whom the boycott is directed. Sometimes the inducement is of refusal to buy, sume, that it may be done by persuasion to leave a rival's shop and come to the defendants'. It may be done by the refusal or withdrawal of various pecuniary advantages which, apart from this consequence, are within the defendants' lawful control. It may be done by the withdrawal, or threat to withdraw, such advantages from third persons who have a right to deal or not to deal with the plaintiff, as a means of inducing them not to deal with him either as customers or servants." 1 See § 14. 2 See § 4 3 On this subject the authorities, all very recent, are in apparently hopeless conflict. In harmony with the views stated in the text is the well-considered case of Bohn Manuf. Co. v. Hollis, 54 Minn. 223; S. C., 55 N. W. Rep. 1119 (1893), involving the legality of an agreement contained in the by-laws of an association composed of from twentyfive to fifty per cent. of the retail lumber dealers in Iowa, Minnesota, Nebraska and the Dakotas, not to deal with any wholesale dealer or manufacturer selling directly to customers, not dealers, at a point where a member of the association might be doing business, such agreement providing for notice being given to all the members whenever a wholesale dealer or manufacturer made such sale. An application by a wholesale manufacturer and dealer in lumber for an injunction against issuing such notice, and from stating or mailing any matter that might injure its trade or business, and from combining with others to hinder or limit its sales |