UNIVERSITY OF ILLINOIS 
 LIBRARY 
 
 Class Book Volume 
 
 5 aaS 'MSB ' 
 
■ h 
 
 
CASES ON RESTRAINT OF TRADE 
 
 PART I 
 
 EDITED BY 
 
 BRUCE WYMAN 
 
 SECOND EDITION 
 
 CAMBRIDGE 
 
 HARVARD LAW REVIEW ASSOCIATION 
 190 4 
 
Y,\ 
 
 ) 
 
 Copyright 1902, By Bruce Wyman, 1893, By James Barr Ames, 
 and 1901, 1902, By Jeremiah Smith. 
 
 All rights reserved. 
 
 ELECTROTYPED AND PRINTED BY H. 0. HOUGHTON AND CO. 
 CAMBRIDGE, MASS., U. S. A. 
 
_//! oo> 1 ■'■Bfi'e 
 
 CASES ON RESTRAINT OF TRADE. 
 
 CHAPTER I. — COMPETITION. 
 
 SECTION I. — EXTENT OF COMPETITION. 
 
 A. Free Competition. 
 
 ANONYMOUS. 
 
 In the Common Pleas, Hilary Term, 1410. 
 
 [. Reported in Year Boole , 11 Henry IV., folio 47, placitum 21.] 
 
 Two masters of a grammar school at Gloucester brought a writ of 
 trespass against another master, and counted that the defendant had 
 started a school in the same town, so that whereas the plaintiffs had 
 formerly received 40 d. or two shillings a quarter from each child, now 
 they got only 12 d., to their damage, &c. 
 
 Tillesley. His writ is worthless. 
 
 Skrene . It is a good action on the case, and the plaintiffs have 
 shown well enough how they are damaged ; wherefore, &c. 
 
 Hankford, J. There may be damnum absque injuria. As if I have 
 a mill, and my neighbor builds another mill, whereby the profit of 
 mine is diminished, I shall have no action against him ; still I am 
 damaged, quod Thirning, C. J., concessit , and said that the instruc- 
 tion of children is a spiritual matter ; and if one retains a master in 
 his house to teach his children, it is a damage to the common master 
 of the town, yet I think he will have no action. 
 
 Skrene. The masters of Paul’s claim that there shall be no other 
 masters in all London except themselves. 
 
 Horton demurred because the action was not maintainable. 
 
 Hill, J. There is no ground to maintain this action, since the 
 plaintiffs have no estate, but a ministry for the time ; and though 
 another equally competent with the plaintiffs comes to teach the 
 children, this is a virtuous and charitable thing, and an ease to the 
 people, for which he cannot be punished by our law. 
 
 Skrene. If a market is erected to the nuisance of my market, I shall 
 have an assize of nuisance ; and in a common case if those coming to 
 my market be disturbed or beaten, whereby I lose my toll, I shall have 
 a good action on my case ; so here. 
 
 £07449 
 
2 
 
 JOHNSON V. HITCHCOCK. 
 
 [CHAP. I. 
 
 Hankford, J. Not the same case, because in the case put you have 
 a freehold and inheritance in the market ; but here the plaintiffs have 
 no estate in the schoolmastership, &c., but for an uncertain time, and 
 it would be against reason for a master to be hindered from keeping 
 school where he pleases, unless where a university was incorporated 
 or a school founded in ancient times. 
 
 And the opinion of the court was that the writ would not lie. 
 Wherefore it was awarded that they should take nothing, &c. 
 
 JOHNSON v. HITCHCOCK. 
 
 In the Supreme Court of New York, 1818. 
 
 [. Reported 15 Johnson , 185.] 
 
 In error, on certiorari to a justice’s court. 
 
 This was an action on the case brought by the defendant in error 
 against the plaintiff in error, for a disturbance of his right of ferry, 
 and his use and enjoyment thereof, and hindering persons from cross- 
 ing at the same. It appeared that the defendant below had en- 
 deavored to divert travellers from the ferry of the plaintiff, repre- 
 senting it not to be as good as another near it, and had, on many 
 occasions, succeeded. No evidence was offered on the part of the 
 defendant, and the jury found a verdict for the plaintiff below for 
 twenty-two dollars and sixteen cents, on which judgment was ren- 
 dered. 
 
 Per Curiam. It is clear, from the evidence, that the defendant 
 below has, on many occasions, interfered, and prevented persons 
 from crossing at the plaintiff’s ferry ; and if there is a good cause of 
 action, the testimony shows an injury, probably, to the amount of the 
 recovery. But there is no principle on which this action can be sus- 
 tained. The evidence, imperfectly as it is stated, is sufficient to war- 
 rant the conclusion, that these are rival ferries near each other, and 
 that the defendant below was unfriendly to the plaintiff’s ferry, and 
 endeavored to turn the custom to the other. This action does not 
 appear to be founded on any slander of title, even admitting that an 
 action of that kind might be sustained in a justice’s court. Both 
 ferries, from anything that appears to the contrary, have equal 
 rights, and equal claims to be upheld and supported, and it cannot 
 furnish a cause of action that travellers have been persuaded to cross 
 the one rather than the other. If an action would lie in this case, it 
 would in all cases of rival business, where anv means are used to 
 draw custom ; and if this were once admitted, it would be difficult 
 to know where to stop. The judgment must be reversed. 
 
 Judgment reversed . 
 
SECT. I.] 
 
 SNOWDEN V. NOAH. 
 
 3 
 
 SNOWDEN v. NOAH. 
 
 In the Court of Chancery of New York, 1825. 
 
 [ Reported Hopkins , 351.] 
 
 The Chancellor. The defendant Noah was the editor but not the 
 proprietor of the newspaper establishment called the National Advo- 
 cate ; and immediately after the sale of that establishment by its 
 former proprietor to the complainant, Noah established another news- 
 paper, under the title of the New York National Advocate. This 
 new gazette, thus established, is sent to the subscribers of the former 
 National Advocate, and Noah has solicited and continues to solicit 
 the support of the patrons of the former paper and of the public to 
 his new paper. This is briefly and in substance the case upon which 
 an injunction is now asked. 
 
 The business of printing and publishing newspapers, being equally 
 free to all, the loss to one newspaper establishment, which may follow 
 from the competition of any rival establishment, is merely a conse- 
 quence of the freedom of this occupation, and gives no claim to legal 
 redress. But a newspaper establishment is also a subject of pro- 
 perty ; and so far as the rights of such an establishment are private 
 and exclusive, this species of property, like any other, is entitled to 
 the protection of the laws. 
 
 The material property of the National Advocate is not here in 
 question. The printing office, press, types, and other materials of a 
 printing establishment, are subjects of exclusive right ; and the 
 injuries alleged in the bill, in respect to these subjects in this case, 
 are matters for which redress must be sought in the courts of law. 
 
 The subject in respect to which an injunction is asked is what is 
 called the good will of the establishment, or the custom and support 
 which the National Advocate had before received from its subscribers 
 and patrons, or from the public. The effort of Noah is to obtain for 
 his newspaper the support of the public in general, and especially 
 the custom and good will of the friends of the National Advocate ; 
 this object is distinctly avowed ; and an open appeal is made to the 
 friends of the National Advocate and to the public to give their sup- 
 port to the new paper. The question is, whether the acts of Noah 
 are an invasion of the private rights of Snowden, as the proprietor of 
 the National Advocate, or merely an exercise of the common right to 
 print and publish a new journal, and to obtain for it patronage. 
 
 The open appeal made to the public in favor of the new journal, as 
 a new and distinct paper, seems to remove from this case every objec- 
 tion. Noah is at liberty to invite the subscribers and patrons of the 
 National Advocate to give him their support ; and they are entirely 
 free to accept or reject his invitation. They, like others, may give 
 their support to either, or neither, or both of these papers. The only 
 
4 
 
 SNOWDEN V. NOAH. 
 
 [CHAP. I. 
 
 circumstance in this case, which has any appearance of an undue 
 encroachment upon the rights of Snowden, is that Noah’s new paper 
 is published under a name nearly the same with that of Snowden. 
 But the name of the new paper is sufficiently distinct from the name 
 of Snowden’s paper to apprize all persons that these are really dif- 
 ferent papers. These different titles and the different matters which 
 must appear in two daily gazettes seem to afford all the information 
 which can be desired by those who choose to give their patronage to 
 either of these papers. I do not perceive that any person can be 
 misled in this respect ; and the whole case seems to be nothing more 
 than an open competition between two newspaper establishments for 
 the good will of those who were the patrons of the first establish- 
 ment, and for the favor of the public. 
 
 The good will of an established trade, the custom of an inn, and 
 the right of a publisher of books, may be injured by acts of deception 
 or piracy; but the injury for which redress is given in such cases 
 results from the imposture practised upon the customers of an exist- 
 ing establishment, or upon the public. When the friends of an exist- 
 ing newspaper and the public are informed by a rival newspaper 
 that the two papers are not the same, but are distinct establishments, 
 there is no deception ; and the detriment which either establishment 
 may suffer from the competition of the other results from the free 
 option of those who choose to give their support to one establishment 
 in preference to the other. This employment is subject to all the 
 incidents of a free competition ; and when no deception is practised, 
 the award of the public, or of those who patronize newspapers, must 
 determine the patronage which each rival press shall receive. 
 
 The adjudged cases cited in support of this application are Hogg 
 v. Kirby , 8 Yesey junior, 215, and Crutwell v. Lye , 17 Vesey junior, 
 336. These cases seem to be rather authorities against the applica- 
 tion. In the last of them, the substance of Lord Eldon’s opinion was 
 expressed in the following sentence, which is directly applicable to 
 this case. “ It amounts to no more than that he asserts a riglit to set 
 up this trade, and has set it up, as the like, but not the same trade, 
 with that sold ; taking only those means, which he had a right to 
 take, to improve it ; and there is no fact, amounting to fraud, upon 
 the contract made with the plaintiff.” 
 
 It appears to me that every person who is disposed to patronize or 
 support the National Advocate may do so, without being deceived or 
 misled by the existence or publication of the New York National 
 Advocate. The struggle of these parties seems to be merely a com- 
 petition, in which there is no imposture or deception. I do not per- 
 ceive any fraud; but if there is any question whether the acts of 
 Noah are a fair competition or a fraudulent interference with the 
 establishment of Snowden, it is a question wholly uncertain ; and as 
 a doubtful matter of fact, it should be left to the trial by jury, in the 
 ordinary course of law. The writ of injunction is a most important 
 remedy ; but it is used to protect rights which are clear, or at least 
 
SECT. I.] PUDSEY COAL GAS CO. V. CORPORATION OF BRADFORD. 5 
 
 free from reasonable doubt. Upon all the facts of the case, the 
 motion for an injunction is denied. 
 
 PUDSEY COAL GAS CO. v. CORPORATION OF BRADFORD. 
 
 In Chancery, 1872. 
 
 [ Reported L. R. 15 Eq. 167.] 
 
 Sir R. Malins, V. C. This is a demurrer by the mayor, aldermen, 
 and burgesses of the borough of Bradford to a bill filed against them 
 by the Pudsey Coal Gas Company. The prayer of the bill asks for a 
 declaration that the defendants, the corporation, are not entitled to 
 supply gas to any street, building, or place which is not within the 
 limits of their parliamentary boundary, and for an injunction to 
 restrain them from supplying gas beyond those limits. 
 
 It appears from the allegations of the bill that the township of Pud- 
 sey is immediately contiguous to the borough of Bradford, and that 
 the corporation of Bradford have had transferred to them, under the 
 authority of the Bradford Corporation Gas and Improvement Act, 
 1871, the rights of the Bradford Gaslight Company, which included 
 compulsory powers to break up streets, and to lay down pipes, and to 
 do other acts for the purpose of enabling them to supply gas to the 
 town of Bradford and some adjoining districts. It appears that no 
 part of the township of Pudsey was within the borough of Bradford, 
 or within the limits to which the Bradford Gaslight Company’s Acts 
 applied. Under two other Acts of Parliament the plaintiffs had 
 similar compulsory powers with respect to the township of Pudsey. 
 By one of them, the Pudsey Gas Act, 1855, the limits were prescribed 
 within which it might be put in force, and the corporation had, under 
 their act, only the same powers as had previously belonged to the 
 Bradford Gaslight Company. 
 
 It is, therefore, perfectly clear that the parliamentary powers of 
 the Bradford corporation were limited to the borough of Bradford 
 and certain specified adjoining places, and those of the plaintiffs 
 were limited to the township of Pudsey and certain other adjoining 
 localities. The argument on the part of the plaintiffs is, that the 
 Bradford corporation are a body existing for certain special purposes, 
 and that beyond duties belonging to those purposes they have no 
 right to do anything ; and that, as regards the supply of gas, they have 
 no right to go beyond their statutory limits. There is much to be said 
 for this view. I am very much inclined to think that, on principle, 
 I should have come to the same conclusion. But I think that the 
 question has been already determined. 
 
 I think it is quite clear that a gas company have no right to do 
 anything which would amount to a nuisance, except where they have 
 parliamentary powers ; but there is nothing to prevent them supply- 
 
6 
 
 HOPKINS V. GREAT NORTHERN RAILWAY. [CHAP. I. 
 
 in g gas just as they like, if they can do so without causing any incon- 
 venience. I consider, therefore, that Attorney- General v. Cambridge 
 Consumers Gas Company, 1 and the cases like it, have very little to do 
 with the present question. But the case which has most bearing on 
 the present case is Stockport District Waterworks Company v. Cor- 
 poration of Manchester , 2 and it seems to be entirely against the plain- 
 tiffs. The plaintiffs in that case were a company having power to 
 take water from a particular river for the supply of a particular dis- 
 trict, and the defendants, the corporation of Manchester, had allowed 
 the other defendants, who were called the Stockport Waterworks 
 Company, to effect a junction with their pipes, and so draw water for 
 the supply of part of the plaintiffs’ district. The plaintiffs then filed 
 a bill against the corporation and the Stockport Waterworks Com- 
 pany for an injunction to restrain them supplying water in this way. 
 A demurrer was filed and was allowed by the Vice-Chancellor before 
 whom the case came, and the case went on appeal before Lord West- 
 bury, who laid down the rule that an incorporated company has only 
 such powers as have been conferred upon it. But the demurrer hav- 
 ing been filed, the question was whether it was to be allowed or over- 
 ruled. The Vice-Chancellor had allowed the demurrer, and the Lord 
 Chancellor, though he was of opinion that the corporation had no 
 right to do what the bill alleged them to have done, considered that 
 there was no allegation of private right which entitled the plaintiffs 
 to maintain the suit. 
 
 But in that case there was, in effect, the same allegation of private 
 injury as in the present, because I find that the bill alleged that it 
 was not within the powers of the corporation to furnish the water for 
 the supply of Stockport and other towns, and that the just rights of 
 the plaintiffs would be seriously prejudiced and injured. 
 
 I am of opinion that the allegation in the 14th paragraph of the 
 bill, that “ great loss will be sustained by the plaintiffs if the said 
 illegal acts of the corporation are permitted to continue,” is not such 
 an allegation of a private injury as this court will allow as the founda- 
 tion for a bill. I am unable to see that this case can be distinguished 
 from Stockbridge District Waterworks Company v. Corporation of 
 Manchester . 8 I must, therefore, allow the demurrer. 
 
 HOPKINS v. GREAT NORTHERN RAILWAY. 
 
 In the Court of Appeals, 1877. 
 
 [ Reported 2 Q. B. D. 224. 4 ] 
 
 [Plaintiffs were owners in fee of a certain ancient and exclusive 
 ferry over the River Nene. Defendants constructed a bridge and 
 footway across the River Nene for their railway distant from the 
 
 1 L. R. 4 Ch. 71 ; 6 Eq. 282. 2 9 Jur. (n. s.) 266. 
 
 8 9 Jur. (n. s.) 267. 4 This case is abridged. — Ed. 
 
SECT. I.] 
 
 EAST TENNESSEE CO. V. ANDERSON CO. 
 
 7 
 
 landing places of the ferry about half a mile. Traffic over the ferry 
 so fell off after the operation of the railroad began that it was ulti- 
 mately given up. Plaintiffs now bring action under the Eailway 
 Clauses Act for damages.] 
 
 Mellish, L. J. It can hardly be necessary to enumerate the dif- 
 ferent classes of persons who had a legal interest in the old highways 
 and who have suffered loss from the diversion of traffic from those 
 highways to railways ; proprietors of canals, turnpike trustees, holders 
 of turnpike bonds, trustees of river navigations, and holders of bonds 
 secured on their tolls, have all suffered great losses from the diversion 
 of traffic to railways and have received no compensation. No doubt 
 their rights have not been infringed, though their property has been 
 affected. 
 
 Judgment reversed , and entered for the defendants. 
 
 EAST TENNESSEE TELEPHONE CO. v. ANDERSON 
 COUNTY TELEPHONE CO. 
 
 In the Court of Appeals of Kentucky, 1900. 
 
 [Reported, 57 Southwestern Reporter , 457.] 
 
 Petition for an injunction. 
 
 Hazelrigg, J. The ordinance adopted by the town of Lawrence- 
 burg, granting the franchise to appellant to establish and operate a 
 telephone system in that town, was passed by the city council on the 
 day of its introduction, and did not lie over five days, as required by 
 section 3636, Ky. St. We regard this provision of the statutes as a 
 highly important one, and as mandatory. Whatever rights — exclu- 
 sive or otherwise — the appellant may have had, if possessed of proper 
 municipal authority, to prevent its competitor (the appellee) from 
 erecting a rival telephone plant, it certainly cannot prevent appellee 
 from so doing when acting without such authority. The chancellor 
 therefore properly dismissed the appellant’s petition. The other 
 questions raised on the appeal need not be considered. 
 
 Judgment affirmed. 
 
8 
 
 RAILWAY CO. V. TELEGRAPH ASSOCIATION. [CHAP. I. 
 
 RAILWAY CO. v. TELEGRAPH ASSOCIATION. 
 
 In the Supreme Court of Ohio, 1891. 
 
 [Reported 48 Oh. St. 390.1] 
 
 [Action by the defendant in error, a telephone company, against the 
 plaintiff in error, an electric street railway. The complaint was that 
 the operation of the street railway by the single trolley system with 
 return by a ground circuit interfered with the operation of the tele- 
 phone system by a single wire with return by a ground circuit. 
 The court below rendered judgment in favor of the Telegraph Associa- 
 tion against the Railway Company. Appeal.] ' 
 
 Dickman, J. . . . The demand made by the Telegraph Association 
 is, not that the Railway Company shall so modify its existing elec- 
 trical apparatus as not to interfere with the telephone service, but 
 shall forever abandon the use of an essential part of its electro-motive 
 system, or be perpetually enjoined. In other words, the Association 
 claims the exclusive use of the grounded circuit, inasmuch as the 
 mechanism of the telephone is so complex, and the electric currents 
 employed so delicate and sensitive, that they cannot be used without 
 disturbance from the heavier currents employed by neighboring elec- 
 trical enterprises that operate with the grounded circuit. We find no 
 foundation for such an exclusive franchise or right. When the Tele- 
 graph Association began its operation under the telephone system, 
 neither the statute authorizing it to erect and maintain poles, wires, 
 and other necessary fixtures, nor the ordinance under which it ob- 
 tained the power to extend its lines in the streets, gave an exclusive 
 right either to use the earth for a return circuit, or a complete metallic 
 circuit formed by double wires. The legislature did not grant the 
 right by general enactment, nor was the municipal corporation em- 
 powered by the legislature to give the Telegraph Association the 
 exclusive right to make use of its streets so as to create a monopoly. 
 In State v. Cincinnati Gas Light and Coke Co ., 18 Ohio St. 262, it 
 was held that a municipal corporation cannot, without clear legislative 
 authority, grant an exclusive right to the use of the streets for certain 
 purposes to an individual or corporation. To enable it to grant such 
 an exclusive right by ordinance in the nature of a contract, the power 
 must be shown to have been expressly granted, or to be so far neces- 
 sary to the proper execution of the powers which are expressly granted 
 as to make its existence free from doubt. 
 
 In the year 1838, Professor Steinheil made the important discovery 
 of the practicability of using the earth as one half, or the returning 
 section of an electric circuit. Professor Morse claimed to have made 
 the discovery about the same time, but he failed to obtain a patent 
 therefor. It was the discovery of an elementary principle of science, of 
 i This case is abridged. — Ed. 
 
SECT. I.] 
 
 AVERILL V. SOUTHERN RY. CO. 
 
 9 
 
 a truth in physics. Eor forty years before the telephone was dis- 
 covered, the use of the earth as a conducting medium in the formation 
 of an electric circuit has been the common property of every electrical 
 enterprise. 
 
 Judgment accordingly. 
 
 AVERILL v. SOUTHERN RY. CO. et al. 
 
 In the Circuit Court of the United States, 1896. 
 
 [Reported 75 Federal Reporter , 736.] 
 
 [Bill filed by a receiver of the Port Royal Ry., asking the aid of 
 the court in protecting the property against a rate war inaugurated by 
 the Southern Ry. A cut of 35% had been made with notice that if 
 this was met a further cut of 80% would be made in the rates. It 
 was alleged that its ultimate object in this was to annihilate com- 
 petition by the destruction of its competitors.] 
 
 Simonton, Circuit Judge. The destructive results of a rate war 
 waged between two great systems of railroads are recognized and 
 deprecated by men of the greatest ability who have considered the 
 subject. They impair and destroy the usefulness of the railroads 
 themselves, and their ability to serve the public with certainty, effi- 
 ciency, and safety. The business interests of the community which 
 move the crops and bring supplies to the consumer require that rates 
 be stable. Every precaution has been taken by state legislatures and 
 by the congress to keep them just and reasonable, — just and reason- 
 able for the public and for the carriers. A few favored points and a 
 few persons may for a short time receive temporary advantage. But 
 the result of such a war is the destruction of values, the disturbance 
 and injury of all business interests, the demoralization and confusion 
 of rates, and great public and private loss. As Judge Cooley has said, 
 the prevention of these rate wars and the disastrous consequences 
 resulting from them is the problem of the age. Whether the powers 
 of courts of equity, state as well as federal, are elastic enough to 
 grapple with the evil ; whether the primary trust (the public good) on 
 which railroads hold their property is one which can be enforced in 
 the courts ; whether the federal courts are able to meet and to defeat 
 measures which obstruct and tend to destroy interstate commerce, — 
 these are questions which sooner or later must be heard and deter- 
 mined. But, to give effect to such hearing and determination, the 
 cause in which they are heard and determined must have in it all 
 parties necessary to make the determination practical to reach the end 
 desired. Courts do not discuss abstract questions or determine them 
 en thesis. 
 
 Free Competition. — Examples of this established law appear throughout this 
 chapter. — Ed. 
 
10 
 
 CORPORATION OF WEAVERS V. BROWN. [CHAP. I. 
 
 B. Unfree Competition. 
 
 SIR GEORGE EERMOR v. BROOKE. 
 
 In the Queen’s Bench, 1590. 
 
 [. Reported Cro. Eliz. 203.] 
 
 Action upon the case for erecting a bakehouse in Tossiter. And 
 declares, that whereas time out of mind, &c., there had been a manor 
 called Tossiter in the same county ; and for the same time, there had 
 been a town of Tossiter ; and that all the land within the said town 
 of Tossiter had been holden of the said manor, of which he is lord ; 
 and that he and all his ancestors, and all those whose estate, &c. had 
 used to have a bakehouse, and a baker there, to bake white bread 
 and horse bread for all the inhabitants there, and strangers passen- 
 gers ; and that none by the said time, &c. had used to have a bake- 
 house there, but by their appointment ; yet the defendant had erected 
 a bakehouse there, ad nocumentum suum. The defendant taketh 
 all by protestation, except that he confessed that there is such a 
 town ; and pleaded that at the time when he erected his bakehouse, 
 that there were three bakers there, and that he was an apprentice to 
 the trade, and that he set up the bakehouse for the benefit of all per- 
 sons, as it was lawful for him to do. And upon this plea the plain- 
 tiff demurred ; and it was argued by Francis Morgan , for the plaintiff, 
 and Buckley, for the defendant. And it was adjudged for the plain- 
 tiff ; for the custom is between the lord and his tenants, which by 
 indenture may have a good and lawful beginning ; and peradventure 
 their lands were given to them upon this condition ; and it is reason- 
 able that the lord maintaining a bakehouse, that for this charge they 
 should have reasonable recompence. And the plaintiff had judg- 
 ment. 
 
 CORPORATION OF WEAVERS v. BROWN. 
 
 In the Queen’s Bench, 1601. 
 
 [Reported Cro. Eliz. 803.] 
 
 Action upon the case ; supposing, that the plaintiffs, from time 
 whereof, &c., where a corporation in London, &c., paying for it twenty 
 shillings and eightpence to the queen per annum, &c., and that the 
 custom there is, that none ought to intermeddle with their guild, nor 
 with their art within London or Southwark, but those of the guild ; 
 
SECT. I.] 
 
 TRIPP V. FRANK. 
 
 11 
 
 and that the defendant, being none of their guild, had bought forty 
 pounds worth of silk of one R. to be woven, and had weaved it, &c. 
 The defendant pleaded not guilty ; and a special verdict found these 
 customs, &c., and that the defendant, being a stranger, had received 
 of R. forty pounds worth of silk to be woven, and had carried it to 
 Hackney, and there had woven it, and had brought it back to London, 
 and received his salary, &c. Et si, &c. 
 
 And hereupon all the court resolved, that it was not any offence ; 
 for although it were a good custom, as they all allow it was, being 
 used time, &c., yet this contracting for it in London, and working of 
 it in the country, is not intermeddling with their trade in London ; 
 no more than if a taylor should buy cloth, or receive any other thing 
 in London, and make a garment thereof in the country ; and although 
 it be a contracting in London, yet it is no intermeddling with the 
 trade. Wherefore it was adjudged for the defendant. 
 
 TRIPP v. FRANK. 
 
 In the Kings Bench, 1792. 
 
 [ Reported 4 T. R. 666. *] 
 
 This was an action on the case ; wherein the plaintiff declared that 
 he was possessed of South Ferry over the Humber, and that the de- 
 fendant wrongfully carried persons and cattle from Kingston upon 
 Hull to Barton, and other parts of the coast, whereby the plaintiff 
 was injured in his right to his ferry, and lost his tolls. There was an 
 exception stated with respect to the inhabitants of Barton, strangers 
 who do not stay longer than flood-tide, and market-people from the 
 different parts of the Lincolnshire coast passing and repassing on 
 market and fair days in market-boats. At the trial before Buller, J., 
 at the last assizes for York, it appeared that the plaintiff was lessee of 
 the corporation of Kingston upon Hull ; and he proved a prescription 
 in them to an exclusive ferry between that place and Barton, on the 
 opposite coast of Lincolnshire, with the exceptions before stated. 
 And it appeared that the defendant, who was the owner of a market- 
 boat at Barrow, had carried over persons at different times than on 
 market-days from Kingston upon Hull to Barrow, to which place they 
 were going, and which lies two miles lower down the Humber than 
 Barton, upon the same coast. It was shown that there was a daily 
 ferry between Kingston and Barton, but none to any other part of the 
 Lincolnshire coast. A verdict was taken for the plaintiff of Is., 
 with liberty for the defendant to enter a nonsuit in case the court 
 should be of opinion that the plaintiff was not entitled to recover 
 
 1 Only the opinion of Lord Kenyon, C. J., is given ; the other justices concurred. — Ed. 
 
12 BOSTON AND LOWELL R. R. V. SALEM AND LOWELL R. R. [CHAP. I. 
 
 under these circumstances. A rule nisi having been granted for that 
 purpose. 
 
 Lord Kenyon, C. J. — It seems to me that the evidence does not 
 support this action. If certain persons wishing to go to Barton had 
 applied to the defendant, and he had carried them a little distance 
 above or below the ferry, it would have been a fraud on the plaintiff’s 
 right, and would be the ground of an action. But here these persons 
 were substantially, and not colorably merely, carried over to a dif- 
 ferent place ; and it is absurd to say that no person shall be permitted 
 to go to any other place on the Humber than that to which the plain- 
 tiff chooses to carry them. It is now admitted that the ferryman can- 
 not be compelled to carry passengers to any other place than Barton ; 
 then his right must be commensurate with his duty. 
 
 Rule discharged . 
 
 BOSTON & LOWELL R. R. v. SALEM & LOWELL R. R. 
 
 In the Supreme Court of Massachusetts, 1854. 
 
 [Reported 2 Gray , l. 1 ] 
 
 [Bill in equity by the Boston & Lowell R. R. against the Salem 
 & Lowell R. R., the Lowell & Lawrence R. R., and the Boston & 
 Maine R. R. The bill alleged that by express provision in its charter 
 the Boston & Lowell R. R. had the exclusive right for thirty years to 
 a railroad between Boston & Lowell. The bill then alleged that by a 
 junction between the Lowell & Lawrence R. R. with the Salem & 
 Lowell R. R., and by an intersection of the Salem & Lowell R. R. 
 with the Boston & Maine R. R. at Wilmington, a line of railroad 
 communication nearly parallel with the plaintiff road was created by 
 the defendant roads between Lowell and Boston, which line was only 
 about one mile longer and never more than three miles distant. The 
 bill next alleged that the defendants were running through trains 
 between Boston and Lowell. Prayer for an injunction. Demurrer.] 
 Shaw, C. J. . . . As the result of the whole case, the court are of 
 opinion that the Boston and Lowell Railroad Corporation acquired 
 by their charter and act of incorporation a right, at their own charge 
 and expense, but for the public accommodation and use, to locate and 
 construct a railroad from the city of Boston to Lowell, for the trans- 
 portation and conveyance of persons and property between those 
 places by railroad cars, and to levy and receive, for their own benefit 
 and reimbursement, certain tolls, for the carriage of persons and pro- 
 perty ; and that, as a part of their franchise, privilege, and right, and 
 the better to secure to them a just and reasonable compensation and 
 
 1 This case is abridged. — Ed. 
 
SECT. I.] BOSTON AND LOWELL R. R. V. SALEM AND LOWELL R. R. 13 
 
 reimbursement, by the tolls so granted, the Commonwealth did, by the 
 said act of incorporation, grant to and stipulate with the said corpora- 
 tion, that no other railroad, within the time therein limited, and not 
 yet elapsed, should be authorized to be made, leading from Boston, 
 Charlestown, or Cambridge (Charlestown then embracing the terri- 
 tory now composing the town of Somerville), to any place within five 
 miles of the northern termination of said railroad at Lowell. With- 
 out such authority of the legislature, we think that no such railroad 
 within the limits prescribed could be lawfully made by other persons 
 or corporations ; and therefore this grant and stipulation, to a certain 
 extent exclusive, was a part, and a valuable part, of the plaintiffs’ 
 franchise ; and that this grant and stipulation it was competent for 
 the legislature, in behalf of the public, to make ; and that the same 
 was a valid grant and contract. 
 
 We are also of opinion that the legislature have not, since the 
 granting of said charter, by right of eminent domain, taken, or mani- 
 fested any intention to take, any part of the right and franchise of 
 the plaintiffs for public use, and that no act or charter has been 
 granted to the three defendant corporations, either or all of them, to 
 take or use any part of the right and franchise of the plaintiffs ; and 
 if in any manner the acts of the defendants, under color of their acts 
 of incorporation, do infringe upon the rights of the plaintiffs, such 
 infringement is not warranted by either or all of the same acts, it is 
 unlawful, and constitutes a disturbance and nuisance to the plaintiffs, 
 for which they are entitled to a remedy. We are also of opinion that 
 the several defendant corporations, having been incorporated and 
 chartered to establish railroads between several termini, according to 
 their respective acts of incorporation, have no right, by the use and 
 combination of several sections of their respective railroads, to estab- 
 lish a continuous and uninterrupted line of transportation by railroad, 
 of persons and property, between Lowell and Boston ; and that the 
 actual establishment of such a continuous line of transportation by 
 railroad is substantially making a railroad, other than that authorized 
 to be made by the plaintiffs, to their injury, and contrary to the 
 rights conferred on them by their charter. 
 
 Demurrer overruled . 
 
14 
 
 THE BINGHAMTON BRIDGE. 
 
 [CHAP. L 
 
 THE BINGHAMTON BRIDGE. 
 l OHENANGO BRIDGE CO. v. BINGHAMTON BRIDGE CO.] 
 
 1865. 3 Wallace U. S. 51. 1 
 
 Error to the New York Court of Appeals. 
 
 Bill in equity by Chenango Bridge Co. to enjoin Binghamton Bridge 
 Co. The plaintiff company was chartered by Section 4 of the Act of 
 1808, “ for the purpose of erecting and maintaining a toll-bridge across 
 the Chenango River, at or near Chenango Point.” The corporation 
 was “ to have perpetual succession, under all the provisions, regula- 
 tions, restrictions, clauses and provisions of the before-mentioned Sus- 
 quehanna Bridge Company,” (referred to in Section 3 of the same Act 
 of 1808.) The latter company was incorporated by Section 38 of the 
 Act of 1805, which gave the Susquehanna Bridge Co. all the “ powers, 
 rights, privileges, immunities, and advantages,” contained in the incor- 
 poration of the Delaware Bridge Co. by Section 31 of the same Act of 
 1805. Said Section 31 enacted: “ It shall not be lawful for any per- 
 son or persons to erect any bridge, or establish any ferry across the said 
 west and east branches of Delaware River, within two miles either 
 above or below the bridges to be erected and maintained in pursuance 
 of this act.” Soon after the passage of the Act of 1808, the plaintiff 
 company built a toll-bridge across the Chenango River, at Chenango 
 Point. In 1855, the legislature granted a charter to the Binghamton 
 Bridge Co., purporting to authorize the building of a bridge in close 
 proximity to that of the plaintiffs. The latter company built a bridge 
 a few rods above the old one. The old company filed a bill in the 
 Supreme Court of New York to enjoin the new company. The plain- 
 tiffs contended that the exclusive rights given by Section 31 of the 
 Act of 1805 to the Delaware Bridge Co. were imported by Section 38 
 of that Act into the charter of the Susquehanna Co. ; that these again, 
 thus imported, were translated into Section 3 of the Act of 1808 ; and 
 that these last were carried finally into Section 4 of the latter Act ; thus 
 making a contract by the State with the Chenango Bridge Co., that no 
 bridge should ever be built over the Chenango River within two miles 
 of their bridge, either above or below it. 
 
 The answer denied the contract thus set up. 
 
 The Supreme Court of New York dismissed the bill ; and this decree 
 was affirmed by the Court of Appeals. 
 
 Mr. D. S. Dickenson , for Binghamton Bridge Co. 
 
 1 Statement abridged. Arguments, and parts of opinions, omitted. — En. 
 
SECT. I.] 
 
 THE BINGHAMTON BKIDGE. 
 
 15 
 
 Mr. Mygatt , contra . 
 
 Mr. Justice Davis delivered the opinion of the Court. 1 
 
 The Constitution of the United States declares that no State shall 
 pass an} r law impairing the obligation of contracts ; and the 25th sec- 
 tion of the Judiciary Act provides, that the final judgment or decree of 
 the highest court of a State, in which a decision in a suit can be had, 
 may be examined and reviewed in this court, if there was drawn in 
 question in the suit the validity of a statute of the State, on the ground 
 of its being repugnant to the Constitution of the United States, and 
 the decision was in favor of its validity. 
 
 The plaintiffs in error brought a suit in equity in the Supreme Court 
 in New York, alleging that they were created a corporation by the 
 legislature of that State, on the first of April, 1808, to erect and main- 
 tain a bridge across the Chenango River, at Binghamton, with perpetual 
 succession, the right to take tolls, and a covenant that no other bridge 
 should be built within a distance of two miles either way from their 
 bridge ; which was a grant in the nature of a contract that can- 
 not be impaired. The complaint of the bill is, that notwithstanding 
 the Chenango Bridge Company have faithfully kept their contract with 
 the State, and maintained for a period of nearly fifty years a safe and 
 suitable bridge for the accommodation of the public, the legislature of 
 New York, on the fifth of April, 1855, in plain violation of the con- 
 tract of the State with them, authorized the defendants to build a bridge 
 across the Chenango River within the prescribed limits, and that the 
 bridge is built and open for travel. 
 
 The bill seeks to obtain a perpetual injunction against the Bingham- 
 ton Bridge Company, from using or allowing to be used the bridge thus 
 built, on the sole ground that the statute of the State, which authorizes 
 it, is repugnant to that provision of the Constitution of the United 
 States which says that no State shall pass any law impairing the obli- 
 gation of contracts. Such proceedings were had in the inferior courts 
 of New York, that the case finally reached and was heard in the Court 
 of Appeals, which is the highest court of law or equity of the State in 
 which a decision of the suit could be had. And that court held that 
 the act, by virtue of which the Binghamton bridge was built, was a 
 valid act, and rendered a final decree dismissing the bill. Everything, 
 therefore, concurs to bring into exercise the appellate power of this 
 court over cases decided in a State court, and to support the writ of 
 error, which seeks to re-examine and correct the final judgment of the 
 Court of Appeals in New York. 
 
 The questions presented by this record are of importance, and have 
 received deliberate consideration. 
 
 It is said that the revising power of this court over State adjudica- 
 tions is viewed with jealousy. If so, we say, in the words of Chief 
 Justice Marshall, “ that the course of the judicial department is marked 
 
 1 Nelson, J., not sitting, being indisposed. 
 
16 
 
 THE BINGHAMTON BRIDGE. 
 
 [CHAP. L 
 
 out by law. As this court has never grasped at ungranted jurisdiction* 
 so it never will, we trust, shrink from that which is conferred upon it.” 
 The constitutional right of one legislature to grant corporate privileges 
 and franchises, so as to bind and conclude a succeeding one, has been 
 denied. We have supposed, if anything was settled by an unbroken 
 course of decisions in the Federal and State courts, it was, that an act 
 of incorporation was a contract between the State and the stockholders. 
 All courts at this da } 7 are estopped from questioning the doctrine. The 
 security of property rests upon it, and every successful enterprise is 
 undertaken, in the unshaken belief that it will never be forsaken. 
 
 A departure from it noio would involve dangers to society that can- 
 not be foreseen, would shock the sense of justice of the county, un- 
 hinge its business interests, and weaken, if not destroy, that respect 
 which has always been felt for the judicial department of the Govern- 
 ment. An attempt even to reaffirm it, could only tend to lessen its 
 force and obligation. It received its ablest exposition in the case of 
 Dartmouth College v. Woodward , 1 which case has ever since been 
 considered a landmark by the profession, and no court has since dis- 
 regarded the doctrine, that the charters of private corporations are 
 contracts, protected from invasion by the Constitution of the United 
 States. And it has since so often received the solemn sanction of this 
 court, that it would unnecessarily lengthen this opinion to refer to the 
 cases, or even enumerate them. 
 
 The principle is supported by reason as well as authority. It was 
 well remarked by the Chief Justice, in the Dartmouth College case, 
 “ that the objects for which a corporation is created are universally 
 such as the Government wishes to promote. They are deemed bene- 
 ficial to the county* and this benefit constitutes the consideration, and 
 in most cases the sole consideration for the grant.” The purposes to 
 be attained are generally beyond the ability of individual enterprise, 
 and can only be accomplished through the aid of associated wealth. 
 This will not be risked unless privileges are given and securities fur- 
 nished in an act of incorporation. The wants of the public are often 
 so imperative, that a duty is imposed on Government to provide for 
 them ; and as experience has proved that a State should not directly 
 attempt to do this, it is necessary to confer on others the faculty of 
 doing what the sovereign power is unwilling to undertake. The legis- 
 lature, therefore, says to public-spirited citizens : “ If you will embark, 
 with your time, money, and skill, in an enterprise which will accommo- 
 date the public necessities, we will grant to you, for a limited period, 
 or in perpetuity, privileges that will justify the expenditure of your 
 money, and the employment of your time and skill.” Such a grant is 
 a contract, with mutual considerations, and justice and good policy alike 
 require that the protection of the law should be assured to it. 
 
 It is argued, as a reason why courts should not be rigid in enforc- 
 
 1 4 Wheaton, 418. 
 
SECT. I.] 
 
 THE BINGHAMTON BRIDGE. 
 
 17 
 
 ing the contracts made by States, that legislative bodies are often 
 overreached by designing men, and dispose of franchises with great 
 recklessness. 
 
 If the knowledge that a contract made by a State with individuals is 
 equally protected from invasion as a contract made between natural 
 persons, does not awaken watchfulness and care on the part of law- 
 makers, it is difficult to perceive what would. The corrective to im- 
 provident legislation is not in the courts, but is to be found elsewhere. 
 
 A great deal of the argument at the bar was devoted to the consider- 
 ation of the proper rule of construction to be adopted in the interpreta- 
 tion of legislative contracts. In this there is no difficulty. All contracts 
 are to be construed to accomplish the intention of the parties ; and in 
 determining their different provisions, a liberal and fair construction 
 will be given to the words, either singty or in connection with the 
 subject-matter. It is not the duty of a court, by legal subtlety, to 
 overthrow a contract, but rather to uphold it and give it effect ; and no 
 strained or artificial rule of construction is to be applied to any part of 
 it. If there is no ambiguit3 r , and the meaning of the parties can be 
 clearly ascertained, effect is to be given to the instrument used, whether 
 it is a legislative grant or not. In the case of the Charles River 
 bridge , 1 the rules of construction known to the English common law 
 w’ere adopted and applied in the interpretation of legislative grants, and 
 the principle was recognized, that charters are to be construed most 
 favorably to the State, and that in grants by the public nothing passes 
 by implication. This court has repeatedly since reasserted the same 
 doctrine ; and the decisions in the several States are nearly all the 
 same wa3 r . The principle is this : that all rights which are asserted 
 against the State must be clearty defined, and not raised b3 T inference 
 or presumption ; and if the charter is silent about a power, it does not 
 exist. If, on a fair reading of the instrument, reasonable doubts arise 
 as to the proper interpretation to be given to it, those doubts are to be 
 solved in favor of the State ; and where it is susceptible of two mean- 
 ings, the one restricting and the other extending the powers of the 
 corporation, that construction is to be adopted which works the least 
 harm to the State. But if there is no ambiguity in the charter, and 
 the powers conferred are plainty marked, and their limits can be readily 
 ascertained, then it is the duty of the court to sustain and uphold it, 
 and to carry out the true meaning and intention of the parties to it. 
 Any other rule of construction would defeat all legislative grants, and 
 overthrow all other contracts. What, then, are the rights of the parties 
 to this controvers3 T ? 
 
 [After considering the various N. Y. Acts in reference to Bridge 
 Companies, and adopting substantial^ the construction contended for 
 b3 T plaintiffs, the opinion proceeds as follows :] 
 
 The legislature, therefore, contracted with this company, if they 
 
 1 11 Peters, 544. 
 
18 
 
 THE BINGHAMTON BRIDGE. 
 
 [CHAP. I. 
 
 would build and maintain a safe and suitable bridge across the Chen- 
 ango River at Chenango Point, for the accommodation of the public, 
 they should have, in consideration for it, a perpetual charter, the right 
 to take certain specified tolls, and that it should not be lawful for an}' 
 person or persons to erect any bridge, or establish any ferry, within a 
 distance of two miles, on the Chenango River, either above or below 
 their bridge. 
 
 Has the legislature of 1855 broken the contract, which the legislatures 
 of 1805 and 1808 made with the plaintiffs? 
 
 The foregoing discussion affords an easy answer to this question. 
 The legislature has the power to license ferries and bridges, and so to 
 regulate them, that no rival ferries or bridges can be established within 
 certain fixed distances. No individual without a license can build a 
 bridge or establish a ferry for general travel, for “it is a well-settled 
 principle of common law that no man may set up a ferry for all passen- 
 gers, without prescription time out of mind, or a charter from the king. 
 He may make a ferry for his own use, or the use of his family, but not 
 for the common use of all the king’s subjects passing that way, because 
 it doth in consequence tend to a common charge, and is become a thing 
 of public interest and use ; and ever} 7 ferry ought to be under a public 
 •regulation.” As there was no necessity of laying a restraint on un- 
 authorized persons, it is clear that such a restraint was not within the 
 meaning of the legislature. The restraint was on the legislature itself. 
 The plain reading of the provision, “ that it shall not be lawful for any 
 person or persons to erect a bridge within a distance of two miles,” is, 
 that the legislature will not make it lawful by licensing any person, or 
 association of persons, to do it. And the obligation includes a free 
 bridge as well as a toll bridge, for the security would be worthless to 
 the corporation if the right by implication was reserved, to authorize 
 the erection of a bridge which should be free to the public. The Bing- 
 hamton Bridge Company was chartered to construct a bridge for gen- 
 eral road travel, like the Chenango bridge, and near to it, and within 
 the prohibited distance. This was a plain violation of the contract 
 which the legislature made with the Chenango Bridge Company, and as 
 such a contract is within the protection of the Constitution of the 
 United States, it follows that the charter of the Binghamton Bridge 
 Company is null and void. 
 
 Decree of the Court of Appeals of New York reversed, and a man- 
 date ordered to issue, with directions to enter a judgment for the plain- 
 tiff in error, the Chenango Bridge Company, in conformity with this 
 opinion. 
 
 [Chase, C. J., delivered a dissenting opinion.] 
 
 Chase, C. J., Field, J., and Grier, J., dissented. 
 
SECT. I.] 
 
 PARROTT V. CITY OF LAWRENCE. 
 
 19 
 
 PARROTT v. CITY OF LAWRENCE et als. 
 
 1872. 2 Dillon U. S. Circuit Court Reports, 332. 1 
 
 Motion to dissolve temporary injunction restraining the defendants, 
 the Messrs. Wilson, from operating the ferry hereinafter described. 
 Plaintiff is a citizen of Ohio, and a stockholder in the Lawrence Bridge 
 Co. In his bill in equity, he alleges that the maintenance of the ferry 
 infringes upon the rights of the Bridge Co. ; and, to show his right to 
 maintain the bill, alleges that the Bridge Co. and its officers have 
 refused to proceed in the State courts to obtain redress. 
 
 Feb. 15, 1857, the Legislative Assembly of the Territory of Kansas 
 incorporated the Lawrence Bridge Co. ; granting the exclusive right 
 and privilege of building and maintaining a bridge across the Kansas 
 River, at the city of Lawrence for a period of twenty-one years ; with 
 power to establish and collect tolls. 
 
 Prior to said incorporation of the Bridge Co. the Legislative Assem- 
 bly had, in 1855, granted to one Baldwin the exclusive right to estab- 
 lish a public ferry within two miles of Lawrence, for a term of fifteen 
 years. The answer of some of the defendants alleges that Baldwin 
 kept a ferry in the immediate vicinit} T of the bridge for some time after 
 the erection of the bridge; when, for reasons unknown, he ceased to 
 operate the ferry. 
 
 By the laws of Kansas, the county commissioners have the power to 
 grant ferry licenses. In January, 1871, the commissioners licensed 
 one Darling to keep a ferry, at Lawrence, for one year. The ferry 
 was operated at first by Darling, and afterwards by the Wilsons, under 
 an arrangement with the city of Lawrence, the city having purchased 
 the feny-boat of Darling. January 6, 1872, the commissioners granted 
 to the defendant, Wilson, the right to keep and run a ferry on the Kan- 
 sas River, at the city of Lawrence, for one year. 
 
 According to the bill, answer, and affidavits, it appears that the 
 feny-boat, or, as the bill styles it, the floating bridge, is operated in 
 this way : Two ropes, or cables, are thrown across the river, fastened 
 on each side, one of which is an endless chain. A rope is fastened to 
 the upper side of the boat, or “ floating bridge,” and this rope glides 
 upon the upper cable by means of a pulley attached to the other end 
 of the rope, said pulley passing from side to side of the river with the 
 boat, the motive power moving the boat back and forth across the 
 stream being a stationarj' steam engine located on the north bank of 
 the river. The boat itself is an ordinary flat-bottomed boat. 
 
 Thacher dt Banks , and N. T. Stephens, for the complainant. 
 
 Wilson Shannon , for the Messrs. Wilson and the city of Lawrence. 
 
 Dillon, Circuit Judge. The grant to the bridge company by its 
 
 1 Statement abridged. — Ed. 
 
20 
 
 PARROTT V. CITY OF LAWRENCE. 
 
 [CHAP. I. 
 
 charter is u the exclusive right and privilege of building and maintain- 
 ing a bridge across the Kansas river at the city of Lawrence,” and “ to 
 establish and collect tolls for crossing said bridge If this right has 
 not been invaded, the complainant is not entitled to an injunction 
 against the running of the ferry. I say the ferry , for, in my judgment, 
 it is clear that the means used to cross the river by the defendant, Wil- 
 son, — viz. a flat-bottomed boat, connected with cables spanning the 
 stream, and moved or propelled back and forth across it by power sup- 
 plied by a stationary engine on the bank — is a ferry, as distinguished 
 from a bridge, both under the legislation of the State and according to 
 the usual meaning of the word. 
 
 The passage over streams is generally effected in one of two ways, 
 viz. : by bridges, which, as commonly constructed for the use of trav- 
 ellers and teams, are immovable structures or extensions of the high- 
 ways over and across the water ; and by boats, which are movable 
 and propelled by steam-power, liorse-power, the action of the current, 
 or similar agencies. When the passage is by the latter mode it is 
 called ferrying , which implies a boat that moves back and forth across 
 the stream, from bank to bank. The legislation of Kansas everywhere 
 recognizes this distinction between bridges and ferries. In the Stat- 
 utes of 1855 there are provisions for building bridges (chap. 18), and 
 also for regulating ferries (chap. 71). At the first session of the 
 legislature, in 1855, there were a great man} 7 special acts, some author- 
 izing certain persons to build toll-bridges, and others to establish and 
 maintain ferries. Among these numerous acts was one giving to John 
 Baldwin the exclusive right to keep a public ferry across the Kansas 
 river at the town of Lawrence for the period of fifteen years. Two 
 years afterwards the legislature incorporated the Lawrence Bridge 
 Company, giving it the exclusive right to build and maintain a bridge 
 across the river at the same place. Did this invade the franchise which 
 had been granted to Baldwin? Clearly not, for the two grants are 
 different ; the one was to keep a ferry and collect tolls or ferriage for 
 crossing the stream by this mode — the other was to erect and maintain 
 a bridge, &c., “ to collect tolls for crossing the same.” So that during 
 the period for which Baldwin’s ferry charter was to run, there were two 
 modes of crossing the river at Lawrence expressly authorized, — the 
 one by means of Baldwin’s ferry, the other by means of the bridge of 
 the Lawrence Bridge Company. 
 
 The contract of the legislature with the bridge company must be 
 protected from subsequent invasion. But what was that contract? It 
 was simply an exclusive right to build a bridge and to “ collect tolls 
 for crossing the same.” It is argued that the contract with the bridge 
 company was that the travel of a certain district, to-wit : those passing 
 the river at Lawrence, should pass over this bridge and pay tolls there- 
 for. But it is clear that such was not the contract : 1st, because it is 
 not so expressed, or fairly to be implied from the language used ; and, 
 2d, because the existence of the Baldwin ferry charter, which must be 
 
SECT. I.] 
 
 PARROTT V. CITY OF LAWRENCE. 
 
 21 
 
 presumed to have been in the mind of the legislature when it passed 
 the bridge charter, and which, bj 7 its terms, would continue in force 
 many } T ears after the period fixed for the completion of the bridge, 
 shows that the legislature did not intend to make a contract with the 
 bridge company to the effect that all persons and property crossing at 
 Lawrence should pass over the bridge. 
 
 When we consider that legislative grants creating monopolies, while 
 they are not to be cut down by hostile or strained constructions, are 
 nevertheless not to be enlarged be} T ond the fair meaning of the lan- 
 guage used ( Binghamton Bridge Case , 3 Wall. 74), this conclusion 
 seems, to my mind, so clear as not to admit of fair doubt. 
 
 It has been settled by adjudication that the exclusive right to a toll 
 bridge is not infringed by the erection of an ordinary railroad bridge 
 within the limits over which the exclusive right extended ( Mohawk 
 Bridge Company v. Railroad Company , 6 Paige, 564 ; Bridge Pro- 
 prietors v. Hoboken Co. 1 Wall. 116, 150, and cases cited) ; and the 
 reasoning upon which this conclusion rests shows that where the charter 
 of the bridge company is silent upon the subject, its exclusive right 
 would not be invaded by the establishment, under legislative authority, 
 of a public ferry, although this would have the incidental effect to 
 injure the value of the franchise of the bridge company. That this is 
 the opinion of the presiding justice of this court is plain from an 
 expression to that effect, by way of argument, in his opinion in the 
 Hoboken Bridge Case (1 Wall. 116, 149). In that case the legislature 
 of New Jersejy in 1790, authorized the making of a contract with cer- 
 tain persons for the building of a bridge over the Hackensack river, 
 and by the same statute enacted that it should not be lawful for any 
 person to erect “ an} 7 other bridge over or across the said river for 
 ninety-nine years ; ” and it was held that the railroad bridge subse- 
 quently authorized, which was so constructed as that persons or prop- 
 erty could not pass over it except in railway cars, did not impair the 
 legal rights of the bridge proprietors. Mr. Justice Miller, in dis- 
 cussing the question as to what was the meaning of the Act of 1790 
 and the contract with the persons who built the bridge, says : “ There 
 is no doubt that it was the intention of those who framed those two 
 documents to confer on the persons now represented by the plaintiffs 
 some exclusive privileges for ninety-nine years. If we can arrive at 
 a clear and precise idea what that privilege is, we shall perhaps be 
 enabled to decide whether the erection proposed by the defendants will 
 infringe it. In the first place, it is not an exclusive right to transport 
 passengers and property over the Hackensack and Passaic rivers, for 
 there is no prohibition of ferries, nor is it pretended that they would 
 violate the contract.” (1 Wall. 149.) 
 
 In conclusion I may remark, that I have considered the very ingen- 
 ious argument made by the complainant’s counsel to show that the mode 
 adopted by the defendants for transporting persons and property across 
 the river is not a ferry, but a flying bridge, or a floating bridge, and 
 
22 
 
 IMHAEUSER V. BUERK. 
 
 [CHAP. I. 
 
 hence it is a violation of the franchise of the bridge company. But 
 the single boat, which is made to cross the river by steam-power, is 
 not, in my judgment, a bridge of any kind. 
 
 Injunction dissolved. 
 
 IMHAEUSER v. BUERK. 
 
 In the Supreme Court of the United States, 1879. 
 
 [Reported 102 U. S. 647.] 
 
 Suit by the holder of letters patent for a watchman’s time detector, 
 alleging infringement by the defendant in manufacturing another 
 watchman’s time detector. 
 
 Mr. Justice Clifford delivered the opinion of the court. 
 
 Equivalents may be claimed by a patentee of an invention consist- 
 ing of a combination of old elements or ingredients, as well as of any 
 other valid patented improvement, provided the arrangement of the 
 parts composing the invention is new, and will produce a new and 
 useful result. 
 
 Pressure in a machine may be produced by a spring or by a weight ; 
 and where that is so, the one is a mechanical equivalent of the other. 
 Cases arise also where a rod and an endless chain will produce the 
 same effect in a machine ; and where that is so, the constructor in 
 operating under the patent may substitute the one for the other, and 
 still claim the protection which the patent confers. Exactly the same 
 function in certain cases may be accomplished by a lever or by a screw ; 
 and where that is so, the substitution of the one for the other cannot 
 be regarded as invention. 
 
 Patentees of an invention consisting merely of a combination of old 
 ingredients are entitled to equivalents, by which is meant that the 
 patent in respect to each of the respective ingredients comprising the 
 invention covers every other ingredient which, in the same arrange- 
 ment of the parts, will perform the same function, if it was well known 
 as a proper substitute for the one described in the specification at the 
 date of the patent. Hence it follows that a party who merely substi- 
 tutes another old ingredient for one of the ingredients of the patented 
 combination is an infringer if the substitute performs the same func- 
 tion as the ingredient for which it is so substituted, and it appears 
 that it was well known at the date of the patent that it was adaptable 
 to that use. 
 
SECT. I.] EDWARD THOMPSON CO. V. AMERICAN LAW BOOK CO. 
 
 23 
 
 EDWAED THOMPSON CO. v AMEEICAN LAW BOOK CO. 
 
 In the Circuit Court of the United States, 1903. 
 
 [Reported 122 Federal Reporter , 922.] 
 
 Application for injunction by the publishers of the American and 
 English Encyclopaedia of Law against the publishers of the Cyclo- 
 paedia of Law and Procedure, alleging infringement. 
 
 Coxe, Circuit Judge. The only act of the defendant which is com- 
 plained of is this : Lists of all the cases bearing upon a given subject, 
 including the cases found in complainant’s books, were put in the 
 hands of the editor chosen to develop that subject. The list of com- 
 plainant’s cases contained authorities not found in the digests. The 
 original reports of these cases were examined by the editor, and, if the 
 cases were found applicable, they were cited by him in support of his 
 article; if not, they were rejected. There is no pretense that a word 
 of the complainant’s text has been copied ; in fact the defendant’s 
 editors were not permitted to open the complainant’s books. The list 
 of cases furnished the editor was not copied in the defendant’s work 
 and the only use made of the list was as a guide to the volumes where 
 the cases were reported. 
 
 Briefly stated, then, the question is this : Is a copyrighted law book 
 infringed by a subsequent work on the same subject where the only 
 accusation against the second author is that he collected all available 
 citations, including those found in the copyrighted work, and, after 
 examining them in text-books and reports, used those which he con- 
 sidered applicable to support his own original text ? We are of the 
 opinion that this question must be answered in the negative. The 
 doctrine contended for by the complainant extends the law of copy- 
 right beyond its present bounds, and if pushed to its logical conclu- 
 sion will inflict a far greater injury upon literature than it can ever 
 expect to prevent. If it be held that an author cannot consult the 
 authorities collected by his predecessors, the law of copyright, enacted 
 to promote the progress of science and useful arts, will retard that 
 progress. It will be found upon examining the reported cases that 
 there has been a finding of non-infringement unless it appears that the 
 whole or a part of the copyrighted work has been copied, either in hcec 
 verba or by colorable variation. 
 
 Unfree Competition. — The design of this chapter does not permit further discussion 
 of this matter. — Ed. 
 
24 
 
 EVANS V. HARLOW. 
 
 [CHAP. X. 
 
 SECTION II. — METHODS OF COMPETITION. 
 
 A. Fair Competition. 
 
 EVANS v. HAELOW. 
 
 In the Queen’s Bench, 1844. 
 
 [ Reported 5 Q. B. 624.1] 
 
 Case for a libel. The declaration stated that the defendant, Ha^ 
 low, published of and concerning the plaintiff, Evans, the following 
 false, scandalous, malicious, and defamatory libel ; that is to say : — 
 
 “ This is to caution parties employing steam power from a person ” 
 (meaning the plaintiff) “ offering what he ” (meaning the plaintiff) 
 “ calls Self acting tallow syphons or lubricators ” (meaning the said 
 design, and meaning the said goods and articles which the plaintiff 
 had so sold and had on sale as aforesaid), “ stating that he ” (mean- 
 ing the plaintiff) “ is the sole inventor, manufacturer, and patentee, 
 thereby monopolizing high prices at the expense of the public. 
 Bobert Harlow” (meaning himself the defendant), “brass-founder, 
 Stockport, takes this opportunity of saying that such a patent does 
 not exist, and that he ” (meaning the defendant) “ has to offer an 
 improved lubricator, which dispenses with the necessity of using 
 more than one to a steam engine, thereby constituting a saving of 
 fifty per cent, over every other kind yet offered to the public. Those 
 who have already adopted the lubricators ” (meaning the said design 
 of the plaintiff, and meaning the goods and articles which the plain- 
 tiff has so sold and had on sale as aforesaid), “ against which B. TIP 
 (meaning himself the defendant) “would caution, will find that the 
 tallow is wasted instead of being effectually employed as professed.” 
 By means of which premises the plaintiff was greatly injured in 
 his credit, reputation, and circumstances, and was prevented from 
 selling divers articles made according to the said design, and also 
 divers of the said other articles and goods, which he might and other- 
 wise would have sold, and was thereby prevented from acquiring 
 divers great gains which he might and otherwise would have acquired, 
 and was and is greatly injured in the way of his said trade and busi- 
 ness and otherwise. To the plaintiff’s damage of, &c. 
 
 General demurrer, and joinder. The ground stated in the margin 
 of the demurrer was, “ that there is nothing in the alleged libel which 
 is actionable.” 
 
 Lord Denman, C. J. I am of opinion that the statement com- 
 plained of does not amount to a libel. It contains no real imputa- 
 1 Only the opinion of Lord Denman, C. J., is given; the other justices concurred. — Ed, 
 
SECT. II.] WHITE v. MELLIN. # 25 
 
 tion upon the plaintiff of fraud or misrepresentation. There are 
 indeed words intimating that the plaintiff stated himself to be the 
 sole inventor and patentee of the lubricators, whereas no such patent 
 existed ; but it does not appear by the record that the plaintiff had or 
 claimed to have any patent in respect of these. The gist of the com- 
 plaint is the defendant’s telling the world that the lubricators sold 
 by the plaintiff were not good for their purpose, but wasted the 
 tallow. A tradesman offering goods for sale exposes himself to obser- 
 vations of this kind ; and it is not by averring them to be “ false, 
 scandalous, malicious, and defamatory ” that the plaintiff can found a 
 charge of libel upon them. To decide so would open a very wide 
 door to litigation, and might expose every man who said his goods 
 were better than another’s to the risk of an action. There is, in this 
 case, a caution given by the defendant against the plaintiff ; but it is 
 not against fraud in him ; it is simply on account of his selling defec- 
 tive goods. Any one selling the same articles would have as much 
 right to complain as he has. The imputation is only on the goods, 
 and is not ground for an action. 
 
 WHITE v. MELLIN. 
 
 In the House of Lords, 1895. 
 
 [. Reported 1895, A. C. 154.1] 
 
 The respondent was the proprietor of Mellin’s food for infants, 
 which he sold in bottles enclosed in wrappers bearing the words 
 “ Mellin’s Infants’ Food.” The respondent was in the habit of supply- 
 ing the appellant with these bottles, which the appellant sold again 
 to the public after affixing on the respondent’s wrapper a label as fol- 
 lows : — 
 
 “Notice. 
 
 “The public are recommended to try Dr. Vance’s prepared food for 
 infants and invalids, it being far more nutritious and healthful than 
 any other preparation yet offered. Sold in barrels, each containing 
 1 lb. net weight, at 7 \d. each, or in 7 lb. packets 3s. 9 d. each. Local 
 agent, Timothy White, chemist, Portsmouth.” 
 
 The appellant was the proprietor of Vance’s food. Discovering this 
 practice, the respondent brought an action against the appellant, 
 claiming an injunction to restrain him, and damages. 
 
 At the trial before Homer, J., the plaintiff proved the above facts, 
 and called two analysts and a physician, the result of whose evidence 
 is stated in Lord Herschell’s judgment. Briefly, they testified that in 
 their opinion Mellin’s food was suitable for infants, especially up to 
 the age of six months, and persons who could not digest starchy mat- 
 
 l This case is much abridged. — Ed. 
 
26 
 
 WHITE V. MELLIN. 
 
 [CHAP. I. 
 
 ters, and that Vance’s food was unsuitable for such beings, nay per- 
 nicious and dangerous for very young infants. At the close of the 
 plaintiff’s case Romer, J., being of opinion that the label was merely 
 the puff of a rival trader and that no cause of action was disclosed, 
 dismissed the action with costs. The Court of Appeal (Lindley, 
 Lopes, and Kay, L.JJ.) being of opinion that the cause ought to have 
 been heard out, discharged that judgment and ordered a new trial. 1 
 
 Lord Herschell, L. C. (after stating the facts). . . . Mr. Moulton 
 sought to distinguish the present case by saying that all that Lord Den- 
 man referred to was one tradesman saying that his goods were better 
 than his rival’s. That, he said, is a matter of opinion, but whether 
 they are more healthful and more nutritious is a question of fact. My 
 Lords, I do not think it is possible to draw such a distinction. The 
 allegation of a tradesman that his goods are better than his neighbor’s 
 very often involves only the consideration whether they possess one 
 or two qualities superior to the other. Of course “ better” means 
 better as regards the purpose for which they are intended, and the 
 question of better or worse in many cases depends simply upon one 
 or two or three issues of fact. If an action will not lie because a man 
 says that his goods are better than his neighbor’s, it seems to me im- 
 possible to say that it will lie because he says that they are better in 
 this or that or the other respect. Just consider what a door would be 
 opened if this were permitted. That this sort of puffing advertise- 
 ment is in use is notorious ; and we see rival cures advertised for 
 particular ailments. The court would then be bound to inquire, in 
 an action brought, whether this ointment or this pill better cured the 
 disease which it was alleged to cure — whether a particular article 
 of food was in this respect or that better than another. Indeed, the 
 courts of law would be turned into a machinery for advertising rival 
 productions by obtaining a judicial determination which of the two 
 was the better. As I said, advertisements and announcements of that 
 description have been common enough ; but the case of Evans v. Har- 
 low 2 was decided in the year 1844, somewhat over half a century ago, 
 and the fact that no such action — unless it be Western Counties 
 Manure Co. v. Lawes Chemical Manure Co. 8 — has ever been main- 
 tained in the courts of justice is very strong indeed to show that it is 
 not maintainable. It is, indeed, unnecessary to decide the point in 
 order to dispose of the present appeal. 
 
 For the reasons which I have given I have come to the conclusion 
 that the judgment of the court below cannot be sustained, even 
 assuming the law to be as stated by the learned judges ; but inasmuch 
 as the case is one of great importance and some additional color would 
 be lent to the idea that an action of this description was maintainable 
 by the observations in the court below, I have thought it only right 
 to express my grave doubts whether any such action could be main- 
 tained even if the facts brought the case within the law there laid 
 down. 
 
 1 [1894] 3 Ch. 276. 
 
 2 5 Q. B. 624. 
 
 8 L. R. 9 Ex. 218. 
 
AYER V. RUSHTON. 
 
 27 
 
 SECT. II.] 
 
 Upon the whole, therefore, I think that the judgment of Eomer, J., 
 was right and ought to be restored, and that this appeal should be 
 allowed, with the usual result as to costs ; and I so move your Lord- 
 ships. 
 
 AYEE v. EUSHTON. 
 
 In the Common Pleas of New York, 1877. 
 
 [. Reported 7 Daly , 9. 1 ] 
 
 Appeal by the defendant from a judgment in favor of the plain- 
 tiffs, granting a perpetual injunction against manufacturing a com- 
 pound called “ cherry pectoral/’ and using that name upon bottles, 
 labels, or wrappers, and selling any compound by that name, and 
 against imitating the plaintiffs’ trade-mark “ cherry pectoral.” The 
 defendants appealed upon the judgment roll including the findings of 
 fact and law made at special term. 
 
 Daly, J. . . . From these findings it appears that both preparations 
 are nearly alike in color, taste, and smell, although defendant has lately 
 altered his compound slightly, in these particulars ; that they are both 
 put up in oblong flat clear glass bottles ; that plaintiffs’ bottles contain 
 about six ounces and defendant’s about five and a half ounces ; that 
 plaintiffs’ bottles are stamped “ Ayer’s Cherry Pectoral,” and defend- 
 ant’s (I assume in the absence of any finding on that point) are not 
 stamped; that plaintiffs’ bottles are in a paper wrapper of a deep 
 orange color, and defendant’s bottles in a white paper wrapper ; that 
 plaintiffs’ wrapper bears the printed words (the color of the ink not 
 specified in the finding) “Ayer’s Cherry Pectoral for the various 
 affections of the lungs and throat, such as Colds, Coughs, Croup, 
 Asthma, Influenza, Hoarseness, Bronchitis, and incipient consump- 
 tion, and for the relief of consumptive patients in advanced stages 
 of the disease. Prepared and sold by J. C. Ayer, Lowell, Massachu- 
 setts. Price one dollar ; ” and defendant’s wrappers bear the words, 
 printed in red ink, “Cherry Pectoral, Eushton, F. V.,” and upon an 
 inside wrapper “ Cherry Pectoral,” and after some printed words of 
 description and recommendation the words, “ For Sale wholesale and 
 retail by Eushton & Co., 11 Barclay Street, New York, formerly of 
 No. 11 Astor House ; ” that defendant advertised by posters, placards, 
 and signs the words “ Cherry Pectoral,” for sale at 11 Barclay Street, 
 and placed signs in front of his store with the words “ Depot of the 
 Cherry Pectoral Company ” thereon ; that he conspicuously placed in 
 his store a placard with the words “ Ayer’s Cherry Pectoral, one dol- 
 lar. Eushton’s Cherry Pectoral, fifty cents ; which will you have ? ” 
 that he instructed his clerks to answer to purchasers who called for 
 Ayer’s Cherry Pectoral that his Cherry Pectoral was not Ayer’s, and 
 1 This case is somewhat abridged. — Ed. 
 
28 
 
 CHOYNSKI V. COHEN. 
 
 [CHAP. I. 
 
 to ask persons inquiring for Cherry Pectoral which they wanted, 
 Rushton’s or Ayer’s, and to say that Rushton’s was much better ; 
 that bottles containing said preparations are almost uniformly sold in 
 closed opaque paper wrappers. 
 
 We have, then, the undisputed circumstances that defendant has 
 been careful to distinguish his preparation from plaintiffs’ by a 
 marked difference in the color of the wrappers, the lettering and the 
 arrangement of the words printed on the wrapper, and by distinctive 
 announcements, the signs in his store, and through his clerks. In 
 fact he seems to have taken precautions to prevent the two com- 
 pounds from being confounded in the eyes of purchasers ; and to pre- 
 vent purchasers being misled or deceived into buying his medicine 
 under the impression that it was plaintiffs’ medicine. 
 
 Judgment reversed, and new trial ordered . 
 
 CHOYNSKI v. COHEN. 
 
 In the Supreme Court of California, 1870. 
 
 [. Reported 39 Cal. 501.] 
 
 Crockett, J. The defendant’s motion to set aside the default 
 taken against him for a failure to answer was properly denied. 
 The excuse given in his affidavit for his omission is fully denied by 
 the counter affidavit of the plaintiff. 
 
 The only question which remains to be considered is whether or 
 not the complaint states a sufficient cause of action to support the 
 judgment. If the complaint exhibits no cause of action, even a judg- 
 ment by default will be reversed on appeal. Able v. Marr, 14 Cal. 210. 
 
 The action is to recover damages for a violation of the plaintiff’s 
 trade-mark, and to restrain the use of it in the future. The complaint 
 alleges that in 1863 the plaintiff established a book, periodical, and 
 stationery store in San Francisco, and gave to his place of business 
 the name of “ Antiquarian Book Store,” by which name it has ever 
 since been known ; that this name was placed upon his sign, stamped 
 upon all articles sold by him, and used in his correspondence ; that 
 he advertised by that name in newspapers, and used it in his business 
 transactions generally. The grievance complained of is, that the 
 defendant has set up a rival establishment under the name of the 
 “Antiquarian Book and Variety Store.” It is plain that the plaintiff 
 could not acquire any exclusive right to use as a trade-mark the 
 terms “ book store ” separated from the word “ antiquarian.” Terms 
 in common use to designate a trade or occupation cannot be exclu- 
 sively appropriated by any one. Otherwise, only one person would 
 have the right to designate his place of business a “ book store,” “ tin- 
 ner’s shop,” “ drug store,” “ hotel,” etc. It must, therefore, depend 
 
CHOYNSKI V. COHEN. 
 
 29 
 
 SECT. II.] 
 
 upon the effect of the word “ antiquarian,” as used in connection with 
 the words “ book store,” whether or not the plaintiff has acquired an 
 exclusive right to the use of these words as a trade-mark. The word 
 “ antiquarian,” as applied to a book store, can have no other meaning 
 or effect than to indicate to the public that the proprietor deals in a 
 certain class of books, to wit : ancient books, or books pertaining to 
 antiquity. Any one reading the sign “ Antiquarian Book Store ” over 
 the door would naturally expect to find there for sale either ancient 
 books, or books treating on subjects connected with antiquity. 
 
 In any other sense the word “ antiquarian ” could have no signifi- 
 cance as applied to a book store. In other words, it indicates only 
 that a certain class of books are sold there. It could not, by even a 
 forced construction, be made to signify that the plaintiff’s business 
 had been long established, and was of an ancient origin ; for the com- 
 plaint informs us that the business was established in 1863, and that 
 it had the name of the “ Antiquarian Book Store ” from the begin- 
 ning. It is plain that the object of the plaintiff in the use of the 
 word “ antiquarian ” was simply to indicate that a particular class of 
 books was sold there, precisely in the same sense that the words 
 “ Law Book Store,” or “ Medical Book Store,” or “ Divinity Book 
 Store ” would indicate that law, medical, or religious works were for 
 sale. If we are correct in this interpretation of the words, it is 
 obvious the plaintiff could no more appropriate them as a trade-mark 
 than could a dry goods dealer the words “ Drench Silk Store,” or a 
 dealer in hats the words “ Felt Hat Store,” or a merchant the words 
 “Ladies’ Shoe Store,” in which cases the words employed would 
 simply notify the public that a particular class of merchandise, as 
 contradistinguished from other merchandise of the same general 
 description, was for sale there. In all such cases, the words employed 
 are but an advertisement that the proprietor deals in a certain class 
 of goods ; and it would be a somewhat startling proposition to an- 
 nounce that the first shoe merchant who puts over his door the words 
 “ Ladies’ Shoe Store ” acquires the exclusive right to use these words 
 as a trade-mark. In* the case of Falkiriburg et al. v. Lucy, 35 Cal. 52, 
 this court had occasion to examine, with much care, the principles 
 which underlie this case ; and without repeating here the argument 
 to be found in the decision of that case, it will suffice to say that 
 upon reason and authority, not less than upon the principles decided 
 in the case referred to, we are satisfied the plaintiff had no right to 
 appropriate the words “ Antiquarian Book Store ” as a trade-mark ; 
 and, consequently, that the complaint contained no cause of action. 
 
 Judgment reversed and cause remanded, with an order to the 
 District Court to dismiss the action. 
 
30 
 
 PARSONS V. GILLESPIE. 
 
 [chap. I. 
 
 PARSONS v. GILLESPIE. 
 
 In the House of Lords, 1898. 
 
 [ Reported 1898, A. C. 239. 1 ] 
 
 The action was brought by the appellants to obtain an injunction 
 to restrain the respondents from applying to any preparation not be- 
 ing of the appellants’ manufacture the term “ Flaked Oatmeal,” or 
 from selling as “ Flaked Oatmeal ” any preparation not being of the 
 appellants’ manufacture, and for an account of profits or damages. 
 
 Lord Hobhouse. . . . The plaintiffs then must show either that 
 the term “ Flaked Oatmeal ” is not part of the common stock of lan- 
 guage in the sense that it is not a term of description, but is of an 
 arbitrary or fanciful nature invented by the plaintiffs which the in- 
 ventor may claim to have appropriated ; or they must show that the 
 term, being originally a description of the article itself, has come in 
 practice to denote goods made by the plaintiffs. To both these points 
 the plaintiffs have carefully addressed themselves. They maintain 
 that the expression “ Flaked Oatmeal” does not properly describe 
 their goods or those of the defendants, but is an artificial expression 
 fit for appropriation by any one who has hit upon it. 
 
 Now, nobody can look at Exhibit A without seeing that the word 
 “ Flaked ” is a correct description. The oats have been only partially 
 reduced to powder, and are presented in small flattened morsels like 
 flakes of snow. The term is one in common use for food grains or 
 other vegetable substances so treated by rolling or crushing, such as 
 “ flaked rice,” “ flaked barley,” “ flaked tapioca,” “ flaked cocoa,” and 
 so forth. But then it is said that the article is not “ meal ” because 
 it is not ground to powder. Whether the word “meal” would by 
 etymology or in the very strictest use of language be applicable to that 
 which has passed through the mill, but is only partially reduced to 
 powder, is a point as to which their Lordships think that no nice 
 inquiry need be made. It is a natural and obvious term to use for 
 oats so treated — one which everybody would accept at once as ap- 
 propriate enough ; and probably everybody who breakfasted off por- 
 ridge made from such a material would think and say that he was 
 eating oatmeal porridge. 
 
 Then it is contended that the product of the defendants is not oat- 
 meal, and that their adoption of an inappropriate name shows an 
 intention of trading on the reputation acquired by the plaintiffs. It 
 seems to their Lordships that the name as applied to the defendants’ 
 product is strictly appropriate ; for they do reduce the oats to powder, 
 which is afterwards steamed, rolled, and so flaked. The plaintiffs have 
 been reduced to contend on this point that because the defendants 
 take away some 5 per cent, of the finest powder the rest is not oat- 
 l This case is abridged. — Ed. 
 
SECT. II.] PASSAIC PRINT WORKS V. ELY, ETC. DRY GOODS CO. 31 
 
 meal ; and further that to roll or flake oatmeal is impossible. To 
 support these two contentions they brought several witnesses in the 
 court below ; but the court rightly gave no weight to the evidence, 
 which has been little insisted on here. 
 
 Then has there been any such secondary use of the term as to 
 identify it with the plaintiffs’ manufacture ? To prove that there has 
 been, the plaintiffs call a number of grocers who say that when cus- 
 tomers asked for “ Flaked Oatmeal” they supplied the plaintiffs’ 
 goods. That was a matter of course during the five or six years for 
 which nobody except the plaintiffs purported to sell goods under that 
 name. One witness, a miller, says in terms that between 1892 and 
 the beginning of 1896 the words “ Flaked Oatmeal ” had got to mean 
 the plaintiffs’ manufacture. That seems to their Lordships somewhat 
 slender evidence to prove such a general association of the name of 
 the product with the producer as to entitle the plaintiffs to say that 
 the use of the name by another is an encroachment on their rights. 
 
 But supposing the evidence sufficient on this point, it falls far short 
 of showing that the proceedings of the defendants are such as to 
 cause confusion between their goods and those of the plaintiffs. There 
 is no evidence that any buyer has got the defendants’ goods when he 
 desired to have those of the plaintiffs ; nor that any seller has made 
 confusion between the two. As for external resemblance of the pack- 
 ages or labels, it has been shown before with reference to the trade- 
 mark that there is nothing of the kind except in the use of the two 
 disputed words. In fact, the defendants could hardly have done more 
 to show that the articles came from different makers. 
 
 The result is that in their Lordships’ judgment the defendants have 
 done no more than they had a right to do in taking appropriate words 
 of ordinary description to indicate the article which they make and 
 sell, and that their action is not calculated to pass off their manufac- 
 ture as that of the plaintiffs, and is not proved in point of fact to have 
 done so. Their Lordships will humbly advise Her Majesty that this 
 appeal should be dismissed. The appellants must pay the costs. 
 
 PASSAIC PRINT WORKS v. ELY & WALKER DRY GOODS 
 
 CO. 
 
 In the Circuit Court of Appeals of the United States, 1900. 
 
 [. Reported 105 Fed. 163.] 
 
 This case was determined below on a demurrer to the plaintiff’s 
 petition which was sustained, and a final judgment was entered against 
 the Passaic Print Works, the plaintiff below, it having declined to 
 plead further. The plaintiff’s petition contained the following allega- 
 tions : That the plaintiff was a corporation organized under the laws 
 
32 PASSAIC PRINT WORKS V. ELY, ETC. DRY GOODS CO. [CHAP. I. 
 
 of the State of New Jersey, and engaged in the manufacture of prints 
 or calicoes at Passaic, in that State. That prior to February 25, 1899, 
 it had been engaged for more than fifteen years in the manufacture 
 of prints or calicoes, and by careful management of its business had 
 earned a reputation of manufacturing a high class of such goods. 
 That it sold its goods, through its selling agents, to jobbers or whole- 
 sale dealers throughout the United States, who in turn sold the same 
 to the retail trade. That the city of St. Louis, Mo., was one of the 
 markets in which its prints or calicoes were sold at wholesale, and 
 that it had a large and prosperous trade in that city; that among 
 the goods by it manufactured and sold were four brands of calicoes 
 known as “Trouville Mourning Prints,” “Central Park Shirtings,’’ 
 “ Elmora Fancy Prints,” and “ Ramona Fancy Prints,” all of which 
 were of a kind largely purchased by jobbers in the St. Louis market, 
 being well suited to the retail trade tributary thereto. That its sell- 
 ing agents had fixed the price for said brands of calicoes for the 
 season of 1899 as follows : For the Trouville mourning prints, 3£ 
 cents a yard, less a discount of 5 per cent, and 2 per cent. ; for the 
 Central Park shirtings, 3£ cents a yard, less a discount of 5 per cent, 
 and 2 per cent. ; for the Elmora fancy prints, 4^ cents per yard, less 
 a discount of 10 per cent, and 2 per cent. ; and for the Ramona fancy 
 prints, 4 cents per yard, less a discount of 5 per cent. That at the 
 date aforesaid the blank cloth from which such calicoes were made 
 was selling at 2^ cents per yard, and that the price above specified 
 for the finished product was its price at Passaic, N. J., without the 
 addition of any freight. It was further alleged that prior to Febru- 
 ary 25, 1899, the plaintiff had received orders for a large amount of 
 the several kinds of prints aforesaid at the prices above specified 
 from several large wholesale dealers doing business in the city of St. 
 Louis, and “ that on or about the 25th day of February, 1899, the said 
 defendants (to wit, the Ely & Walker Dry Goods Company et aZ.), 
 combining and conspiring among themselves and with others to the 
 plaintiff unknown, and maliciously intending to injure the business of 
 the said plaintiff, and to cause it great loss in money, and to break up 
 and ruin the plaintiff’s trade among the jobbers in St. Louis, mali- 
 ciously caused a circular in the name of the said defendant corpora- 
 tion to be issued and sent out to the retail trade tributary to St. 
 Louis, which said circular was in words and figures following ; that 
 is to say : 1 Ely & Walker Dry Goods Co. We beg to call your atten- 
 tion to the following items at prices that cannot be replaced, and 
 request you to order promptly if interested, to secure first selection 
 of styles. Prices for all items subject to change without notice, and 
 orders accepted only for stock on hand.’ ” Then followed a long list 
 of various brands of cloth, with a specification of the prices at which 
 the various brands would be sold, and among them the following : 
 “ Trouville mourning prints, as long as they last, 3£ ; Central Park 
 and Boat Club shirting prints, as long as they last, 2£ ; Elmora and 
 Ramona fancy prints, as long as they last, 3^.” It was next averred 
 
SECT. II.] PASSAIC PRINT WORKS V. ELY, ETC. DRY GOODS CO. 33 
 
 that the plaintiff had not sold to the defendant corporation or to 
 either of the individual defendants any of the aforesaid prints or 
 calicoes of its manufacture for a period of about one year prior to 
 February 25, 1899 ; that it had never sold to said defendants any 
 Elmoras or Ramonas ; that, if said defendant had any of said last-men- 
 tioned prints, it had purchased them at second-hand ; that as it was 
 informed and believed the defendants had but a small quantity of 
 such goods to sell, and for that reason qualified its offer to sell by 
 inserting in its circular the words “ as long as they last ” j and that 
 the price named in said circular for the aforesaid four brands of 
 prints of its manufacture was less than the price charged by the 
 plaintiff for said prints, it having universally charged for said prints 
 for delivery in the spring of 1899 the several prices therefor hereto- 
 fore specified. It was next averred that the effect of the aforesaid 
 circular was to advertise to the retail trade tributary to the city of 
 St. Louis that the four brands of calicoes aforesaid of the plaintiff’s 
 manufacture could be purchased at a less price from the defendant 
 corporation than they could be from other jobbers in the city of St. 
 Louis to whom the plaintiff had sold large quantities thereof, and to 
 cause said other jobbers to either cancel their orders, or to compel the 
 plaintiff to make a rebate on the price of its goods in order that other 
 jobbers might meet the prices so specified in the defendant’s circular, 
 and to break up, injure, and destroy the sale and trade in such prints 
 in the St. Louis market and in the country tributary thereto, except 
 at greatly reduced prices. It was also alleged, but on information 
 and belief, that the quotations aforesaid in the defendant’s circular 
 were made for the purpose of injuring and destroying the plaintiff’s 
 trade in the manner last stated, and that in consequence of the issu- 
 ance of said circular the plaintiff had lost profits on sales which it 
 otherwise might have made to the amount of $10,000, and had been 
 further damaged by having to change the name of its goods and by 
 having their identity lost to the amount of $20,000, and had also been 
 further damaged by the malicious acts complained of to the amount 
 of $20,000 ; making its total loss $50,000, for which sum it prayed 
 judgment. 
 
 Before Caldwell, Sanborn, and Thayer, Circuit Judges. 
 
 Thayer, Circuit Judge, after stating the case as above, delivered 
 the opinion of the court. 
 
 The complaint filed in the lower court, the substance of which has 
 been stated, shows by necessary intendment that when the circular 
 of the defendant company was issued it had in stock a limited quan- 
 tity of the four brands of calico of the plaintiff’s manufacture which 
 are therein described. The circular stated, in substance, that the 
 defendant had such calicoes in stock, and the complaint did not deny 
 that fact, but admitted it by averring that “ the defendant corpora- 
 tion had but a small quantity of such goods to sell, and for that reason 
 qualified its offer to sell by inserting in the circular after the name 
 of the goods the words, ( as long as they last.’” Moreover, the owner 
 
34 PASSAIC PRINT WORKS V. ELY, ETC. DRY GOODS CO. [CHAP. L 
 
 of property, real or personal, has an undoubted right to sell it and to 
 offer it for sale at whatever price he deems proper, although the effect 
 of such offer may be to depreciate the market value of the commodity 
 which he thus offers, and incidentally to occasion loss to third parties 
 who have the same kind of species of property for sale. The right to 
 offer property for sale, and to fix the price at which it may be bought, 
 is incident to the ownership of property, and the loss which a third 
 party sustains in consequence of the exercise of that right is damnum 
 absque injuria. We are thus confronted with the inquiry whether 
 the motive which influenced the defendant company to offer for sale 
 such calicoes of the plaintiff’s manufacture as they had in stock at 
 the price named in its circular, conceding such motive to have been as 
 alleged in the complaint, changed the complexion of the act, and 
 rendered the same unlawful, when, but for the motive of the actor, it 
 would have been clearly lawful. It is common learning that a bad 
 motive — such as an intent to hinder, delay, and defraud creditors, by 
 virtue of St. 13 Eliz. c. 5, and possibly by the rules of the common 
 law — will render a conveyance or transfer of property void which, 
 but for the bad motive, would have teen valid. So, also, one who 
 sets the machinery of the law in motion without probable cause, and 
 for the sole purpose of injuring the reputation of another, or subject- 
 ing him to loss and expense, is guilty of an unlawful act which would 
 have been lawful but for the improper motive. And one who, by 
 virtue of his situation, has a qualified privilege to make defamatory 
 statements concerniug another, may be deprived of the benefit of that 
 privilege by proof that it was not exercised in good faith, but in pur- 
 suance of a malicious intent to injure the person concerning whom 
 the defamatory statement or statements were made. Poll. Torts 
 (Webb’s ed.) pp. 331-335, and cases there cited. There is also some 
 authority for saying that one who maliciously (that is, with intent, to 
 obtain some personal benefit at another’s loss or expense) induces 
 another to break his contract with a third party thereby commits an 
 actionable wrong if special damage is disclosed, although the act done 
 would have been lawful if the wrongful motive had been absent. 
 Lumley v. Gye, 2 El. & Bl. 216 ; Bowen v. Hall , 6 Q. B. Div. 333 ; 
 Walker v. Cronin , 107 Mass. 555. And see Poll. Torts (Webb’s ed.) 
 pp. 668-673. Aside from cases of the latter kind, it is a general rule 
 that the bad motive which inspires an act will not change its com- 
 plexion, and render it unlawful, if otherwise the act was done in the 
 exercise of an undoubted right. Or, as has sometimes been said, 
 “ when an act done is, apart from the feelings which prompted it, 
 legal, the civil law ought to take no cognizance of its motive.” The 
 question as to how far and under what circumstances a bad purpose 
 will render an act actionable which, considered by itself, and without 
 reference to the purpose which prompted it, is lawful, has been so 
 much discussed since the decision in Allen v. Flood, [1898] 1 App. 
 Cas. 1, that it would be profitless to indulge in further comment. It 
 has been well observed that it would be dangerous to the peace of 
 
SECT. II.] PASSAIC PRINT WORKS V. ELY, ETC. DRY GOODS CO. 35 
 
 society to admit the doctrine that any lawful act can be transformed 
 prima facie into an actionable wrong by a simple allegation that the 
 act was inspired by malice or ill will, or by any improper motive. It 
 is wiser, therefore, to exclude any inquiry into the motives of men 
 when their actions are lawful, except in those cases where it is well 
 established that malice is an essential ingredient of the cause of 
 action, or in those cases where, the act done being wrongful, proof of 
 a bad motive will serve to exaggerate the damages. 
 
 The case at bar falls within neither of the exceptions to the gen- 
 eral rule above stated, — that, if an act is done in the exercise of an 
 undoubted right, and is lawful, the motive of the actor is immaterial. 
 No one can dispute the right of the defendant company to offer for 
 sale goods that it owned and were in its possession, whether the 
 quantity was great or small, for such a price as it deemed proper. 
 This was the outward visible act of which complaint is made, and, 
 being lawful, the law will not hold it to be otherwise because of a 
 secret purpose entertained by the defendant company to inflict loss 
 on the plaintiff by compelling it to reduce the cost of a certain kind 
 of its prints or calicoes. 
 
 Nor is the complaint aided in any respect by reference to the law 
 of conspiracy, since the only object that the defendants had in view 
 which the law will consider was the disposition or sale of certain 
 goods which the defendant corporation had the right to sell; and 
 the means employed to accomplish that end, namely, placing them 
 on the market at a reduced cost, were also lawful. 
 
 In the brief filed in behalf of the plaintiff in error it is suggested 
 finally that the complaint may be sustained on the ground that it 
 states a good cause of action for maliciously causing certain persons 
 to break or cancel their contracts with the plaintiff, but we think 
 it quite obvious that the complaint was not framed with a view ot 
 stating a cause of action of that nature, and that it is insufficient for 
 that purpose. It does not give the name of any person or corporation 
 with whom ithe plaintiff had a contract for the sale of its prints which 
 was subsequently broken m consequence of the wrongful acts of the 
 defendant. Neither does it show that it had accepted any orders for 
 goods which the jobber was not privileged to cancel at his pleasure. 
 Nor does it allege any special damage incident to the breach of any 
 particular contract. In view of all the allegations which the com- 
 plaint contains it is manifest, we think, that it was framed with a 
 view of recovering on the broad ground that the issuance of the cir- 
 cular was unlawful and actionable, provided the motive of the defend- 
 ant company in issuing it was to occasion loss or inconvenience to 
 the plaintiff. 
 
 We are of opinion that the complaint did not state a cause of 
 action, as the trial court held, and the judgment below is therefore 
 affirmed. 
 
86 
 
 WALSH V. DWIGHT. 
 
 [CHAP. I. 
 
 WALSH v. DWIGHT. 
 
 In the Supreme Court of New York, 1899. 
 
 [Reported 40 App. Div. N. Y. 513. 1 ] 
 
 Ingraham, J. Upon the trial of this action the complaint was dis- 
 missed upon the ground that it did not state facts sufficient to con- 
 stitute a cause of action, and from the judgment entered upon such 
 dismissal the plaintiffs appeal. U pon this appeal the facts alleged in 
 the complaint must be taken as established, and it must be deter- 
 mined whether upon such facts, as alleged, the plaintiffs were entitled 
 to a verdict. The complaint alleges that the plaintiffs, who are doing 
 business in the city of New York as manufacturers of and dealers in 
 saleratus and soda, which are articles of common use for the support 
 of life and health, had expended large sums of money in advertising 
 their business throughout the State of New York and elsewhere; had 
 been to great expense in introducing their goods on the market ; had, 
 prior to January 1, 1896, built up a large and lucrative business, and 
 had prepared plates and wrappers for the various brands of goods 
 used by the jobbers and general dealers in the trade to whom the 
 plaintiffs supplied the said goods ; that prior to January 1, 1896, the 
 defendants had been engaged in the manufacture and sale of saleratus 
 and soda and had built up a large trade in what was known on the 
 market as “ Dwight’s Cow Brand Saleratus and Soda,” and that the 
 said articles under the said name had come to be well known and in 
 great demand throughout the country, though substantially of the 
 same grade and quality as those sold by the plaintiffs ; that the plain- 
 tiffs had, prior to January 1, 1896, been supplying jobbers and the 
 trade generally with the said articles at prices considerably lower than 
 those charged for the articles manufactured and sold by the defend- 
 ants, and thereby had been enabled to make large sales of their com- 
 modities ; that the defendants, knowing this and with intent to injure 
 the plaintiffs, destroy, restrain, and prevent competition, and for the 
 purpose of advancing the prices of the said articles, and contrary to 
 the statute in such case made and provided, did, shortly before and on 
 or about the 1st day of January, 1896, and at other times, wrongfully 
 and unlawfully make and enter into contracts with large numbers of 
 the jobbers and dealers throughout fhe State of New York and else- 
 where, wherein and whereby these defendants undertook and agreed 
 to pay to the said parties quarterly, one half cent per pound on all 
 purchases from said defendants of the said Cow Brand Saleratus and 
 Soda, in consideration of the said parties undertaking and agreeing 
 not to sell, or to permit any person connected with them, or under 
 their control, to sell Dwight’s Cow Brand Saleratus and Soda at less 
 than the basis of five and one half cents per pound in one pound 
 1 This case is somewhat abridged. — Ed. 
 
SECT. II.] 
 
 WALSH V. DWIGHT. 
 
 37 
 
 packages in boxes, or four cents per pound in bulk in kegs, free on 
 board in New York city; other packages in proportion; “ (jobbers 
 outside of New York city to add one-eighth of a cent per pound to 
 the invoice prices for freight, which price was a fictitious and exor- 
 bitant price caused by extensive and extravagant advertising, the 
 benefit of which accrued only to said defendants), and further under- 
 taking and agreeing not to sell any saleratus or soda in bulk or in 
 boxes under their own private or other brands at less price than 
 Dwight’s Cow Brand ; ” and that, by reason of the said wrongful and 
 unlawful contracts and combinations of the said defendants, restrain- 
 ing and preventing competition and creating a monopoly in the said 
 articles, the business of these plaintiffs was utterly destroyed, and 
 they were wholly prevented from competing with the defendants or 
 making any sales of their goods, and were injured to their damage in 
 the premises in the sum of $50,000. 
 
 It is not alleged that the defendants had made any contracts with 
 the customers of the plaintiffs, or with any others than those who 
 were the defendants’ regular customers or persons regularly dealing 
 with them, or that they had induced any of the plaintiffs’ customers 
 to break any existing contract with the plaintiffs. The right of 
 action appears to be based solely upon the illegality of the contracts 
 made between the defendants and their customers or persons dealing 
 with them ; and the plaintiffs ask to recover from the defendants the 
 damages which they claim to have sustained because, by reason of 
 the alleged illegal contracts made between the defendants and their* 
 customers, the defendants’ customers refused to purchase the plain- 
 tiffs’ goods. 
 
 Assuming, for the purpose of this argument, — a question, however,, 
 which we do not determine, — that a contract made by a firm engaged 
 in the manufacture and sale of an article of commerce with those* 
 dealing with the firm, which is illegal or prohibited by law, would, 
 give a cause of action to any third party engaged in the same business* 
 having no contractual relation with either of the parties to the con- 
 tract alleged to be illegal, the illegality of the contract alleged must be 
 established before there could be any cause of action. There is,, how- 
 ever, nothing in the contract alleged in the complaint to have been 
 made by the defendants which prevents the jobbers and dealers from 
 purchasing or selling the goods of others than the defendants., The 
 defendants simply offered to parties purchasing their goods to make a 
 reduction in the price of the goods sold, in consideration of the pur- 
 chasers agreeing not to sell the goods at a less price than that named* 
 and not to sell the goods of other manufacturers at a less price than 
 that at which they agreed to sell the defendants’ goods. It is difficult, 
 to see upon what ground it can be claimed that such a contract is 
 illegal. That the defendants would have the right to establish 
 agencies for the sale of their goods, or to employ others to sell them 
 at such price as the defendants should designate, cannot be disputed. 
 Nor can it be that a manufacturer of merchandise cannot agree to sell 
 
S8 
 
 WALSH V. DWIGHT. 
 
 [CHAP. I. 
 
 to others upon condition that the vendees in selling at retail should 
 charge a specified price for the goods sold, or should sell only the 
 manufactured product of the manufacturer. If a dealer in articles of 
 this kind, for his own advantage, agrees to confine his business to a 
 particular line of goods, or agrees with the manufacturers to charge 
 a particular price for the articles which he sells in his business, such 
 an agreement is not illegal as in restraint of trade or as tending to 
 create a monopoly, as there is nothing in the agreement to prevent 
 others from engaging in the business, or the manufacturer of other 
 articles from selling their product to any one who is willing to buy. 
 There is nothing to prevent an individual from selling any property 
 that he has at any price which he can get for it. Nor is there any 
 reason why an individual should not agree that he will not sell pro- 
 perty which he owns at the time of making the agreement, or which 
 he thereafter acquires, at less than at a fixed price ; and certainly a 
 contract of this kind is not one which exposes the parties to it to any 
 penalty, or subjects them to an action for damages by those whose 
 business such a contract has interfered with. 
 
 We think, therefore, that no cause of action was alleged in the com- 
 plaint, and the judgment is affirmed with costs. 
 
 Fair Competition. — Cases bearing upon fair competition are cited in the appropriate 
 footnotes to Unfair Competition for the purpose of better comparison. — Ed. 
 
SECT. II.] 
 
 HART V. ALDRIDGE. 
 
 39 
 
 B. Unfair Competition. 
 
 (1) The Customer Under Contract. 
 
 HART v. ALDRIDGE. 
 
 In the King’s Bench, May 3, 1774. 
 
 [ Reported in Cowper, 54.] 
 
 This came before the court on a case reserved upon the following 
 question : Whether under the circumstances of this case the plaintiff 
 was entitled to recover ? It was an action of trespass on the case for 
 enticing away several of the plaintiff’s servants, who used to work for 
 him in the capacity of journeymen shoemakers. The jury found that 
 Martin and Clayton were employed as journeymen shoemakers by the 
 plaintiff, but for no determinate time, but only by the piece, and had, 
 at the time of the trespass laid, each of them a pair of shoes unfinished ; 
 that the defendant persuaded them to enter into his service, and to 
 leave these shoes unfinished, which they accordingly did. 
 
 Mr. Darwell , for the plaintiff, stated it to be a question of common 
 law, and that the only point for the opinion of the court was, “ whether 
 a journeyman was such a servant as the law takes notice of?” In 
 support of which proposition he insisted that a journeyman is as much 
 a servant as any other person who works for hire or wages ; that neither 
 in reason nor at common law is there any distinction between a ser- 
 vant in one capacity or another, and that the injury of seduction is in 
 all cases the same, though the recompense in damages may be different. 
 To show that an action lay at common law for taking a servant out of 
 his master’s service, he cited Brooke Abr. tit. Action sur le case , pi. 38 ; 
 11 Hen. IV., fol. 23, pi. 46. In Fitzherbert, 168 D, it is laid down that 
 “ if a man take an infant or other out of another’s service, he shall be 
 punished, although the infant or other were not retained.” In Brooke, 
 tit. Lab. p. 21, a distinction is taken between the taking a servant out 
 of his master’s service and the procuring him to depart or retaining him 
 after a voluntary departure, being apprised of his first retainer : in the 
 two last of which cases an action on the case is the proper remedy ; in 
 
40 
 
 HART V. ALDRIDGE. 
 
 [CIIAP. I. 
 
 the former, trespass at common law. But lie insisted that in no case 
 had there ever been a distinction taken with respect to the time for 
 which a servant might be hired ; nor indeed before the stat. 5 Eliz. c. 4, 
 was any precise time necessary, the object of which statute was very 
 different from the question before the court. He pressed the argument 
 ab inconvenienti , stating that it would be of great detriment to the 
 town, where the whole trade was in a great measure carried on by this 
 sort of servant. That the verdict had found the defendant to be 
 apprised of the retainer of the servants, it being in proof that he had 
 desired them to leave their work then in hand unfinished. 
 
 Mr. Wittes, contra. The single question is, whether the enticing 
 away a journeyman shoemaker, who is hired to make a single pair of 
 shoes, is such an iujury to his master as that an action will lie for it. 
 Now the jury have found that there was no hiring for any determinate 
 time, but only by the piece : if so, they could not be the plaintiffs ser- 
 vants ; for the term “ journeyman ” does not import that they belong 
 to any particular master. 
 
 Lord Mansfield interrupted him. The question is, whether saying 
 that such a one is a man’s journeyman, is as much as to say that he is 
 such a man’s servant ; that is, whether the jury, by finding him to be 
 the plaintiff’s journeyman, do not ex vi termini find him to be his ser- 
 vant. A journeyman is a servant by the day ; and it makes no differ- 
 ence whether the work is done by the day or by the piece. He was 
 certainly retained to finish the work he had undertaken, and the defend- 
 ant knowingly enticed him to leave it unfinished. 
 
 What is the gist of the action ? That the defendant has enticed a 
 man away who stood in the relation of servant to the plaintiff, and by 
 whom he was to be benefited. I think the point turns upon the jury 
 finding that the persons enticed away were employed by the plaintiff 
 as his journeymen. It might perhaps have been different if the men had 
 taken work for everybody, and after the plaintiff had employed them 
 the defendant had applied to them, and they had given the preference to 
 him in point of time. For if a man lived in his own house and took in 
 work for different people, it would be a strong ground to say that he 
 was not the journeyman of any particular master ; but the gist of the 
 present action is that they were attached to this particular master. 
 
 Aston, J. It is clear that a master may maintain an action against 
 any one for taking and enticing away his servant, upon the ground of 
 the interest which he has in his service and labor. And even suppos- 
 ing, as my lord has stated, that the servant did live in his own house, 
 if he were employed to finish a certain number of shoes for a particular 
 person by a fixed time, and a third person enticed him away, I think 
 an action would lie. If not, it might be of very bad consequence in 
 trade. He is a servant quoad hoc , and though the seducer and enticer 
 
SECT. II.] 
 
 BLAKE V. LANYON. 
 
 41 
 
 is much the worse, yet the law inflicts a penalty upon workmen leaving 
 their work undone. 
 
 Mr. Justice Willes and Mr. Justice Ashhurst concurred. 
 
 Per Curiam. Let the postea be delivered to the plaintiff. 
 
 BLAKE r. LANYON. 
 
 In the King’s Bench, April 25, 1795. 
 
 [Reported in 6 Term Reports, 221.] 
 
 The second count in the declaration stated that the plaintiff, who was 
 a currier, had hired and retained W. Hobbs to be his servant and 
 journeyman, &c., and that Hobbs, against the will of the plaintiff, de- 
 parted and left the service of the plaintiff, &c., and then and there went 
 to the defendant ; yet the defendant, well knowing Hobbs to be the ser- 
 vant of the plaintiff, and to have been and to be so retained, hired, and 
 employed by the plaintiff, &c., but contriving, &c. , “did then and 
 there receive and harbor the said W. Hobbs, and did then and there 
 retain, keep, and employ the said Hobbs in his (defendant’s) said ser- 
 vice, and wholly refused to deliver him to the plaintiff his master,” 
 although requested, &c., and unlawfully detained, entertained, and 
 kept the said Hobbs, so then being the servant and journeyman of the 
 plaintiff, in his (the defendant’s) service, &c., whereby, &c. At the 
 trial at the last Launceston assizes it appeared that Hobbs, who was 
 retained by the plaintiff to work by the piece, left the plaintiff’s ser- 
 vice on a dispute between them, the plaintiff having beaten him ; that 
 at the time of his departure he had some work in hand ; that he then 
 applied for work to the defendant, who was also a currier, and who 
 employed him, not knowing of his engagement with the plaintiff ; but 
 that, in the course of a few days afterwards, the defendant having been 
 apprised by the plaintiff that Hobbs was his servant and had left his 
 work unfinished, and being threatened with an action in case he con- 
 tinued to employ Hobbs, requested the servant to return to his former 
 master and finish his work. This Hobbs refused, and the defendant 
 continued him in his service. It was objected on behalf of the defend- 
 ant that the action could not be supported on the second count, because 
 it either imported that the defendant had retained Hobbs in his ser- 
 vice, knowing him to be the servant of the plaintiff, which was not 
 established in proof, or that he merely continued Hobbs in his service 
 after he had notice of Hobbs’s engagement with the plaintiff, for 
 
 4 
 
42 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 which no action could be maintained, it appearing that the defendant 
 did not know that Hobbs was the plaintiff’s servant at the time he 
 first employed him. But Lawrence, J., before whom the cause was 
 tried, overruled the objection, saying that the plaintiff might recover 
 upon the second count if the jury were of opinion that the defendant 
 continued to employ Hobbs after he knew that Hobbs was the plaintiff’s 
 servant. The jury having given a verdict for the plaintiff, 
 
 Gibbs now renewed his objection, stating that great inconveniences 
 would result from a determination against the defendant, for that, in 
 such a case, a person engaged in a great manufacture might be deprived 
 of the benefit of the service of a journeyman whom he had retained to 
 do a particular piece of work, not knowing at the time of hiring that 
 the journeyman was under any engagement with any other master, 
 before the servant had finished his work, and at a moment when the 
 materials then in work might be totally spoiled if left in an unfinished 
 state. 
 
 Sed per Curiam. An action will lie for receiving or continuing to 
 employ the servant of another after notice, without enticing him 
 away. Here no fault could be imputed to the defendant for taking 
 Hobbs into his service in the first instance, because then he had no 
 notice of Hobbs’s prior engagement with the plaintiff ; but, as soon 
 as he had notice of that fact, he ought to have discharged him. A 
 person who contracts with another to do certain work for him is the 
 servant of that other till the work is finished, and no other person can 
 employ such servant to the prejudice of the first master ; the very act 
 of giving him employment is affording him the means of keeping out 
 of his former service. Rule refused . 
 
 LUMLEY GYE. 
 
 In the Queen’s Bench, Trinity Term, 1853. 
 
 [Reported in 2 Ellis & Blackburn , 216.] 
 
 Crompton, J. 1 The declaration in this case consisted of three 
 counts. The two first stated a contract between the plaintiff, the pro- 
 prietor of the Queen’s Theatre, and Miss Wagner, for the performance 
 by her for a period of three months at the plaintiff’s theatre ; and it 
 then stated that the defendant, knowing the premises and with a 
 malicious intention, whilst the agreement was in full force, and before 
 
 1 The statement of case and arguments of counsel are omitted. — Ed. 
 
SECT. IT.] 
 
 LUMLEY V. GYE. 
 
 43 
 
 the expiration of the period for which Miss Wagner was engaged, 
 wrongfully and maliciously enticed and procured Miss Wagner to 
 refuse to sing or perform at the theatre, and to depart from and aban- 
 don her contract with the plaintiff and all service thereunder, whereby 
 Miss Wagner wrongfully, during the full period of the engagement, 
 refused and made default in performing at the theatre ; and special 
 damage arising from the breach of Miss Wagner’s engagement was 
 then stated. The third count stated that Miss Wagner had been hired 
 and engaged by the plaintiff, then being the owner of her Majesty’s 
 Theatre, to perform at the said theatre for a certain specified period 
 as the dramatic artiste of the plaintiff for reward to her in that behalf, 
 and had become and was such dramatic artiste for the plaintiff at his 
 said theatre for profit to the plaintiff in that behalf ; and that the 
 defendant, well knowing the premises and with a malicious intention, 
 whilst Miss Wagner was such artiste of the plaintiff, wrongfully and 
 maliciously enticed and procured her, so being such artiste of the 
 plaintiff, to depart from and out of the said employment of the plain- 
 tiff, whereby she wrongfully departed from and out of the said service 
 and employment of the plaintiff, and remained and continued absent 
 from such service and employment until the expiration of her said hiring 
 and engagement to the plaintiff by effluxion of time ; and special damage 
 arising from the breach of Miss Wagner’s engagement was then stated. 
 To this declaration the defendant demurred ; and the question for our 
 decision is, Whether all or any of the counts are good in substance? 
 
 The effect of the two first counts is, that a person, under a binding 
 contract to perform at a theatre, is induced by the malicious act of 
 the defendant to refuse to perform and entirely to abandon her con- 
 tract ; whereby damage arises to the plaintiff, the proprietor of the 
 theatre. The third count differs, in stating expressly that the per- 
 former had agreed to perform as the dramatic artiste of the plain- 
 tiff, and had become and was the dramatic artiste of the plaintiff for 
 reward to her : and that the defendant maliciously procured her to 
 depart out of the employment of the plaintiff as such dramatic artiste ; 
 whereby she did depart out of the employment and service of the 
 plaintiff ; whereby damage was suffered by the plaintiff. It was said, 
 in support of the demurrer, that it did not appear in the declaration 
 that the relation of master and servant ever subsisted between the 
 plaintiff and Miss Wagner; that Miss Wagner was not averred, 
 especially in the two first counts, to have entered upon the service of 
 the plaintiff ; and that the engagement of a theatrical performer, even 
 if the performer has entered upon the duties, is not of such a nature 
 as to make the performer a servant, within the rule of law which gives 
 an action to the master for the wrongful enticing away of his servant. 
 And it was laid down broadly, as a general proposition of law, that no 
 action will lie for procuring a person to break a contract, although 
 such procuring is with a malicious intention and causes great and 
 immediate injury. And the law as to enticing servants was said to bo 
 
44 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 contrary to the general rule and principle of law, and to be anomalous, 
 and probably to have had its origin from the state of society when 
 serfdom existed, and to be founded upon, or upon the equity of, the 
 Statute of Laborers. It was said that it would be dangerous to hold 
 that an action was maintainable for persuading a third party to break 
 a contract, unless some boundary or limits could be pointed out ; and 
 that the remedy for enticing away servants was confined to cases 
 where the relation of master and servant, in a strict sense, subsisted 
 between the parties ; and that, in all other cases of contract, the only 
 remedy was against the party breaking the contract. 
 
 Whatever may have been the origin or foundation of the law as to 
 enticing of servants, and whether it be, as contended by the plaintiff, an 
 instance and branch of a wider rule, or whether it be, as contended by 
 the defendant, an anomaly and an exception from the general rule of 
 law on such subjects, it must now be considered clear law that a per- 
 son who wrongfully and maliciously, or, which is the same thing, with 
 notice, interrupts the relation subsisting between master and servant by 
 procuring the servant to depart from the master’s service, or by har- 
 boring and keeping him as servant after he has quitted it and during 
 the time stipulated for as the period of service, whereby the master is 
 injured, commits a wrongful act for which he is responsible at law. I 
 think that the rule applies wherever the wrongful interruption operates 
 to prevent the service during the time for which the parties have con- 
 tracted that the service shall continue ; and I think that the relation of 
 master and servant subsists, sufficiently for the purpose of such action, 
 during the time for which there is in existence a binding contract of 
 hiring and service between the parties ; and I think that it is a fanciful 
 and technical and unjust distinction to say that the not having actually 7, 
 entered into the service, or that the service not actually' continuing, 
 can make any difference. The wrong and injury are surely the same, 
 whether the wrong-doer entices away the gardener, who has hired him- 
 self for a year, the night before he is to go to his work, or after he has 
 planted the first cabbage on the first morning of his service ; and I 
 should be sorry to support a distinction so unjust, and so repugnant to 
 common sense, unless bound to do so by some rule or authority of law 
 plainly showing that such distinction exists. . . - 1 
 
 The objection as to the actual employment not having commenced 
 would not apply in the present case to the third count, which states 
 that Miss Wagner had become the artiste of the plaintiff, and that the 
 defendant had induced her to depart from the employment. But it was 
 further said that the engagement, employment or service, in the pres- 
 ent case, was not of such a nature as to constitute the relation of mas- 
 ter and servant, so as to warrant the application of the usual rule of law 
 giving a remedy in case of enticing away servants. The nature of the 
 injury and of the damage being the same, and the supposed right of 
 
 1 The learned judge here discussed and approved of Blake v. Lanyon. — Ed. 
 
SECT. II.] 
 
 LUMLEY V. GYE. 
 
 45 
 
 action being in strict analogy to the ordinary case of master and servant, 
 I see no reason for confining the case to services or engagements under 
 contracts for services of any particular description ; and I think that 
 the remedy, in the absence of any legal reason to the contrary, may 
 well apply to all cases where there is an unlawful and malicious enticing 
 away of any person employed to give his personal labor or service for a 
 given time under the direction of a master or employer who is injured 
 by the wrongful act ; more especially when the party is bound to give 
 such personal services exclusively to the master or employer ; though 
 I by no means say that the service need be exclusive. . . d 
 
 In deciding this case on the narrower ground, I wish by no means to 
 be considered as deciding that the larger ground taken by Mr. Cowling 
 is not tenable, or as saying that in no case except that of master and 
 servant is an action maintainable for maliciously inducing another to 
 break a contract to the injury of the person with whom such contract 
 has been made. It does not appear to me to be a sound answer, to 
 say that the act in such cases is the act of the party who breaks the 
 contract ; for that reason would apply in the acknowledged case of 
 master and servant. Nor is it an answer, to say that there is a remedy 
 against the contractor, and that the party relies on the contract ; for, 
 besides that reason also applying to the case of master and servant, the 
 action on the contract and the action against the malicious wrong-doer 
 may be for a different matter ; and the damages occasioned by such 
 malicious injury might be calculated on a very different principle from 
 the amount of the debt which might be the only sum recoverable on 
 the contract. Suppose a trader, with a malicious intent to ruin a 
 rival trader , goes to a banker or other party who owes money to his 
 rival, and begs him not to pay the money which he owes him, and by 
 that means ruins or greatly prejudices the party : I am by no means 
 prepared to say that an action could not be maintained, and that dam- 
 ages, beyond the amount of the debt if the injury were great, or much 
 less than such amount if the injury were less serious, might not be recov- 
 ered. Where two or more parties were concerned in inflicting such 
 injury, an indictment, or a writ of conspiracy at common law, might 
 perhaps have been maintainable ; and, where a writ of conspiracy would 
 lie for an injury inflicted by two, an action on the case in the nature of 
 conspiracy will generally lie ; and in such action on the case the plain- 
 tiff is entitled to recover against one defendant without proof of any 
 conspirac}’, the malicious injury and not the conspiracy being the gist 
 of the action . 2 In this class of cases it must be assumed that it is the 
 malicious act of the defendant, and that malicious act only, which 
 
 causes the servant or contractor not to perform the work or contract 
 
 which he would otherwise have done. The servant or contractor may 
 be utterly unable to pay anything like the amount of the damage 
 sustained entirely from the wrongful act of the defendant; and it 
 
 1 The rest of the opinion on this point is omitted. — Ed. 
 
 2 See note (4) to Skinner v. Gunton, 1 Wins. Saund. 230. 
 
46 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 would seem unjust, and contrary to the general principles of law, if 
 such wrong-doer were not responsible for the damage caused by his 
 wrongful and malicious act. Several of the cases cited by Mr. Cowling 
 on this part of the case seem well worthy of attention. 
 
 Without however deciding any such more general question, I think 
 that we are justified in applying the principle of the action for enticing 
 away servants to a case where the defendant maliciously procures a 
 party, who is under a valid contract to give her exclusive personal ser- 
 vices to the plaintiff for a specified period, to refuse to give such 
 services during the period for which she had so contracted , whereby 
 the plaintiff’ was injured. 
 
 I think, therefore, that our judgment should be for the plaintiff*. 
 
 Erle, J. The question raised upon this demurrer is, Whether an 
 action will lie by the proprietor of a theatre against a person who mali- 
 ciously procures an entire abandonment of a contract to perform exclu- 
 sive^ at that theatre for a certain time ; whereby damage was sustained ? 
 And it seems to me that it will. The authorities are numerous and 
 uniform, that an action will lie by a master against a person who pro- 
 cures that a servant should unlawfully leave his service. The principle 
 involved in these cases comprises the present ; for, there, the right of 
 action in the master arises from the wrongful act of the defendant in 
 procuring that the person hired should break his contract, by putting 
 an end to the relation of emplo} T er and employed ; and the present case 
 is the same. If it is objected that this class of actions for procuring a 
 breach of contract of hiring rests upon no principle, and ought not to 
 be extended beyond the cases heretofore decided, and that, as those 
 have related to contracts respecting trade, manufactures, or household 
 service, and not to performance at a theatre, therefore they are no 
 authority for an action in respect of a contract for such performance ; 
 the answer appears to me to be, that the class of cases referred to rests 
 upon the principle that the procurement of the violation of the right is 
 a cause of action, and that, when this principle is applied to a violation 
 of a right arising upon a contract of hiring, the nature of the service 
 contracted for is immaterial. It is clear that the procurement of the 
 violation of a right is a cause of action in all instances where the viola- 
 tion is an actionable wrong, as in violations of a right to property, 
 whether real or personal, or to personal security *, he who procures the 
 wrong is a joint wrong-doer, and may be sued, either alone or jointly 
 with the agent, in the appropriate action for the wrong complained of. 
 Where a right to the performance of a contract has been violated by a 
 breach thereof, the remedy is upon the contract against the contract- 
 ing party ; and, if he is made to indemnify for such breach, no further 
 recourse is allowed ; and, as in case of the procurement of a breach of 
 contract the action is for a wrong and cannot be joined with the action 
 on the contract, and as the act itself is not likely to be of frequent 
 occurrence nor easj T of proof, therefore the action for this wrong, in 
 respect of other contracts than of those hiring, are not numerous ; but 
 
SECT. II.] 
 
 LUMLEY v. GYE. 
 
 47 
 
 still they seem to me sufficient to show that the principle has been 
 recognized. In Winsmore v. Greenbank it was decided that the pro- 
 curing of a breach of the contract of a wife is a cause of action. The 
 only distinction in principle between this case and other cases of 
 contracts is, that the wife is not liable to be sued ; but the judgment 
 rests on no such grounds ; the procuring a violation of the plaintiff’s 
 right under the marriage contract is held to be an actionable wrong. 
 In Green v. Button 1 it was decided that the procuring a breach of a 
 contract of sale of goods bj r a false claim of lien is an actionable 
 wrong. Sheperd v. Wakeman 2 is to the same effect, where the defend- 
 ant procured a breach of a contract of marriage by asserting that the 
 woman was already married. In Ashley v. Harrison 3 and in Taylor 
 v. Neri 4 it was properly decided that the action did not lie, because the 
 battery, in the first case, and the libel, in the second case, upon the 
 contracting parties were not shown to be with intent to cause those 
 persons to break their contracts, and so the defendants by their wrong- 
 ful acts did not procure the breaches of contract which were com- 
 plained of. If they had so acted for the purpose of procuring those 
 breaches, it seems to me they would have been liable to the plaintiffs. 
 To these decisions, founded on the principle now relied upon, the cases 
 for procuring breaches of contracts of hiring should be added ; at least 
 Lord Mansfield’s judgment in Bird v. Randall 5 is to that effect. This 
 principle is supported by good reason. He who maliciousfy procures a 
 damage to another by violation of his right ought to be made to indem- 
 nify ; and that, whether he procures an actionable wrong or a breach 
 of contract. He who procures the non-delivery of goods according to 
 contract may inflict an injury, the same as he who procures the abstrac- 
 tion of goods after delivery ; and both ought on the same ground to be 
 made responsible. The remedy on the contract may be inadequate, as 
 where the measure of damages is restricted ; or in the case of non- 
 payment of a debt where the damage may be bankruptcy to the cred- 
 itor who is disappointed, but the measure of damages against the 
 debtor is interest only ; or, in the case of the non-delivery of the goods, 
 the disappointment may lead to a heavy forfeiture under a contract to 
 complete a work within a time, but the measure of damages against the 
 vendor of the goods for non-delivery may be only the difference between 
 the contract price and the market value of the goods in question at 
 the time of the breach. In such cases, he who procures the damage 
 maliciously might justly be made responsible beyond the liability of 
 the contractor. 
 
 With respect to the objection that the contracting party had not 
 begun the performance of the contract, I do not think it a tenable 
 ground of defence. The procurement of the breach of the contract may 
 be equally injurious, whether the service has begun or not, and in my 
 
 1 2 C. M. & R. 707. 2 i gid. 79. 
 
 8 1 Peake’s N. P. C. 194; s. c. 1 Esp. N. P. C. 48. 
 
 4 1 Esp. N. P. C. 386. 5 3 Burr. 1345. 
 
48 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 judgment ought to be equally actionable, as the relation of employer 
 and employed is constituted by the contract alone, and no act of service 
 is necessary thereto. 
 
 The result is that there ought to be, in nty opinion, judgment for 
 the plaintiff. 
 
 Wightman, J . 1 It was contended, for the defendant, that an action 
 is not maintainable for inducing another to break a contract, though 
 the inducement is malicious and with intent to injure ; and that the 
 breach of contract complained of is, in contemplation of law, the wrong- 
 ful act of the contracting party, and not the consequence of the mali- 
 cious persuasion of the party charged ; which ought not to have had 
 any effect or influence ; and that the damage is not the legal conse- 
 quence of the acts of the defendant. It was further urged, that the 
 cases in which actions have been held maintainable for seducing ser- 
 vants and apprentices from the employ of their masters are exceptions 
 to the general rule, and are not to be extended ; and that the present 
 case, as it appears upon the declaration, is not within any of the 
 excepted cases. 
 
 With respect to the first and second counts of the declaration, it was 
 contended, for the plaintiff, that an action on the case is maintainable 
 for maliciously procuring a person to refuse to perform a contract, 
 into which he has entered, and by which refusal the plaintiff has sus- 
 tained an injmy ; and, though no case was cited upon the argument 
 in which such an action had been brought, or directly held to be main- 
 tainable, it was said that on principle such action was maintainable ; 
 and the authority of Lord Chief Baron Comyns was cited, that in all 
 cases where a man has a temporal loss or damage by the wrong of 
 another he may have an action on the case. In the present case there 
 is the malicious procurement of Miss Wagner to break her contract, 
 and the consequent loss to the plaintiff. Why then may not the plain- 
 tiff maintain an action on the case? Because, as it is said, the loss or 
 damage is not the natural or legal consequence of the acts of the 
 defendant. There is the injuria , and the damnum ; but it is contended 
 that the damnum is neither the natural nor legal consequence of the 
 injuria , and that, consequently, the action is not maintainable, as the 
 breaking her contract was the spontaneous act of Miss Wagner herself, 
 who was under no obligation to yield to the persuasion or procurement 
 of the defendant. And the case of Vicars v. Wilcocks , 2 which though 
 it has been much brought into question has never been directly over- 
 ruled, was relied upon as an authority upon this point for the defend- 
 ant. That case, however, is clearly distinguishable from the present 
 upon the ground, suggested by Lord Chief Justice Tindal in Ward v. 
 Weeks , 8 that the damage in that case, as well as in Vicars v. Wilcocks , 2 
 was not the necessary consequence of the original slander uttered by 
 the defendants, but the result of spontaneous- and unauthorized com- 
 
 1 Only a part of the opinion of Wightman, J., is given. — Ed. 
 
 * 8 East, 1. 3 7 Bing. 211, 215. 
 
SECT. II.] 
 
 LUMLEY V. GYE. 
 
 49 
 
 munications made by those to whom the words were uttered by the 
 defendants. The distinction is taken in Green v. Button, 1 in which it 
 was held that an action was maintainable against the defendant for 
 maliciously and wrongfully causing certain persons to refuse to deliver 
 goods to the plaintiff, by asserting that he had a lien upon them and 
 ordering these persons to retain the goods until further orders from 
 him. It was urged for the defendant in that case, that, as the persons 
 in whose custody the goods were, were under no legal obligation to obey 
 * the orders of the defendant, it was the mere spontaneous act of these 
 persons which occasioned the damage to the plaintiff ; but the court 
 held the action to be maintainable, though the defendant did make the 
 claim as of right, he having done so maliciousty and without any rea- 
 sonable cause, and the damage accruing thereb}\ In Winsmore v. 
 Greenbank the plaintiff in his first count alleged that, his wife having 
 unlawfully left him and lived apart from him, during which time a con- 
 siderable fortune was left for her separate use, and she being willing to 
 return to the plaintiff, whereby he would have had the benefit of her 
 fortune, the defendant, in order to prevent the plaintiff from receiving 
 any benefit from the wife’s fortune and the wife from being reconciled 
 to him, unlawfully and unjustly persuaded, procured and enticed the 
 wife to continue absent from the plaintiff, and she did by means thereof 
 continue absent from him, whereby he lost the comfort and society of 
 the wife and her aid in his domestic affairs, and the profit and advan- 
 tage he would have had from her fortune. Upon motion in arrest of 
 judgment this count was held good, and that it sufficiently appeared 
 that there was both damnum and injuria: it was prima facie an 
 unlawful act of the wife to live apart from her husband ; and it was 
 unlawful, and therefore tortious, in the defendant to procure and per- 
 suade her to do an unlawful act ; and, as the damage to the plaintiff 
 was occasioned thereby, an action on the case was maintainable. This 
 case appears to me to be an exceedingly strong authority in the plain- 
 tiff’s favor in the present case. It was undoubtedly prima facie an 
 unlawful act on the part of Miss Wagner to break her contract, and 
 therefore a tortious act of the defendant maliciously to procure her to 
 do so ; and, if damage to the plaintiff followed in consequence of that 
 tortious act of the defendant, it would seem, upon the authority of the 
 two cases referred to, of Green v. Button 1 and Winsmore v. Green- 
 bank, as well as upon general principle, that an action on the case is 
 maintainable. A doubt was expressed by Lord Eldon, in Morris v. 
 Langdale, 2 whether in an action on the case for slander the plaintiff 
 could succeed upon an allegation of special damage, that, by reason of 
 the speaking of the words, other persons refused to perform their con- 
 tracts with him ; Lord Eldon observing that that was a damage which 
 might be compensated in actions by the plaintiff against such persons. 
 It has, however, been remarked with much force by Mr. Starkie, in his 
 
 1 2 C. M. & R. 707. 
 
 2 2 Bos. k Pul. 284, 289. 
 
50 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 Treatise on the Law of Libel, vol. i. p. 205 (2d edition), that such a 
 doctrine would be productive of much hardship in many cases, as a 
 mere right of action for damages for non-performance of a contract can 
 hardly be considered a full compensation to a person who has lost the 
 immediate benefit of the performance of it. The doubt indeed is hardly 
 sustainable on principle ; and there are many cases in which actions 
 have been maintained for slanderous words, not in themselves action- 
 able, on the ground of the speaking of the words having induced other per- 
 sons to act wrongfully towards the plaintiffs ; as in the case of Newman 
 v. Zachary, where an action on the case was held to be maintainable 
 for wrongfully representing to the bailiff of a manor that a sheep was an 
 estra}*, in consequence of which it was wrongful^ 7 seized. Upon the 
 whole, therefore, I am of opinion that, upon the general principles upon 
 which actions upon the case are founded, as well as upon authority, the 
 present action is maintainable. 
 
 Coleridge, J. It may simplify what I have to say, if I first state 
 what are the conclusions which I seek to establish. They are these : 
 that in respect of breach of contract the general rule of our law is to 
 confine its remedies b} 7 action to the contracting parties, and to dam- 
 ages directly and proximately consequential on the act of him who is 
 sued ; 1 that, as between master and servant, there is an admitted 
 exception ; that this exception dates from the Statute of Laborers, 23 
 Edw. III., and both on principle and according to authority is limited 
 by it. If I am right in these positions, the conclusion will be for the 
 defendant, because enough appears on this record to show, as to the 
 first, that he, and, as to the second, that Johanna Wagner, is not within 
 the limits so drawn. 
 
 First then, that the remedy for breach of contract is by the general 
 rule of our law confined to the contracting parties. I need not argue 
 that, if there be any remedy by action against a stranger, it must be by 
 action on the case. Now, to found this, there must be both injury in 
 the strict sense of the word (that is a wrong done), and loss resulting 
 from that injury : the injury or wrong done must be the act of the 
 defendant ; and the loss must be a direct and natural, not a remote and 
 indirect, consequence of the defendant’s act. Unless there be a loss 
 thus directly and proximately connected with the act, the mere inten- 
 tion, or even the endeavor, to produce it will not found the action. 
 The existence of the intention, that is the malice, will in some cases be 
 an essential ingredient in order to constitute the wrongfulness or inju- 
 rious nature of the act ; but it will neither supply the want of the act 
 itself, or its hurtful consequence : however complete the injuria , and 
 whether with malice or without, if the act be after all sine damno , no 
 action on the case will lie. The distinction between civil and criminal 
 proceedings in this respect is clear and material ; and a recollection of 
 
 1 Only the opinion of Coleridge, J., on this point is given. It is now generally 
 admitted that this learned judge, although wrong on this point, was right in maintain- 
 ing that the actress was not a servant. — Ed. 
 
SECT. II.] 
 
 LUMLEY V. GYE. 
 
 51 
 
 the different objects of the two will dispose of any argument founded 
 merely on the allegation of malice in this declaration, if I shall be found 
 right in thinking that the defendant’s act has not been the direct or 
 proximate cause of the damage which the plaintiff alleges he has sus- 
 tained. If a contract has been made between A. and B. that the latter 
 should go supercargo for the former on a voyage to China, and C., 
 however malicious^, persuades B. to break his contract, but in vain, no 
 one, I suppose, would contend that any action would lie against C. 
 On the other hand, suppose a contract of the same kind made between 
 the same parties to go to Sierra Leone, and C. urgently and bona fide 
 advises B. to abandon his contract, which on consideration B. does, 
 whereby loss results to A. ; I think no one will be found bold enough 
 to maintain that an action would lie against C. In the first case no 
 loss has resulted ; the malice has been ineffectual ; in the second, 
 though a loss has resulted from the act, that act was not C.’s, but 
 entirely and exclusively B.’s own. If so, let malice be added, and let 
 C. have persuaded, not bona fide but mala fide and malicious^, still, 
 all other circumstances remaining the same, the same reason applies ; 
 for it is malitia sine damno , if the hurtful act is entirely and exclu- 
 sively B.’s, which last circumstance cannot be affected by the presence 
 or absence of malice in C. Thus far I do not apprehend much differ- 
 ence of opinion : there would be such a manifest absurdity in attempt- 
 ing to trace up the act of a free agent breaking a contract to all the 
 advisers who may have influenced his mind, more or less honestl}*, more 
 or less powerfully, and to make them responsible civilly for the conse- 
 quences of what after all is his own act, and for the whole of the 
 hurtful consequences of which the law makes him directly and fully 
 responsible, that I believe it will never be contended for seriousty. 
 This was the principle on which Lord Kenyon proceeded in Ashley v. 
 Harrison . 1 There the defendant libelled Madame Mara ; the plaintiff 
 alleged that, in consequence, she, from apprehension of being hissed 
 and ill-treated, forbore to sing for him, though engaged, whereby he 
 lost great profits. Lord Kenyon nonsuited the plaintiff : he thought the 
 defendant’s act too remote from the damage assigned. But it will be 
 said that this declaration charges more than is stated in the case last 
 supposed, because it alleges, not merely a persuasion or enticement, 
 but a procuring. In Winsmore v. Greenbank the same word w^as 
 used in the first count of the declaration, which alone is material to the 
 present case ; and the Chief Justice, who relied on it, and distinguished 
 it from enticing, defined it to mean u persuading with effect ; ” and he 
 held that the husband might sue a stranger for persuading with effect 
 his wife to do a wrongful act directly hurtful to himself. Although I 
 should hesitate to be bound by every word of the judgment, yet I am 
 not called on to question this definition or the decision of the case. 
 Persuading with effect, or effectually or successfully persuading, may 
 
 1 1 Peake’s N. P. C. 194; s. c. 1 Esp. N. P. C. 48. 
 
52 
 
 LUMLEY V. GYE. 
 
 [CHAP. I. 
 
 no doubt sometimes be actionable — as in trespass — even where it is 
 used towards a free agent ; the maxims, qui facit per alium facit per 
 se , and respondeat superior, are unquestionable ; but, where they apply, 
 the wrongful act done is properly charged to be the act of him who has 
 procured it to be done. He is sued as a principal trespasser, and the 
 damage, if proved, flows directly and immediately from his act, though 
 it was the hand of another, and he a free agent, that was employed. 
 But, when you apply the term of effectual persuasion to the breach of 
 a contract, it has obviously a different meaning ; the persuader has not 
 broken and could not break the contract, for he had never entered into 
 any ; he cannot be sued upon the contract ; and yet it is the breach of 
 the contract only that is the cause of damage. Neither can it be said 
 that in breaking the contract the contractor is the agent of him who 
 procures him to do so ; it is still his own act ; he is principal in so 
 doing, and is the only principal. This answer may seem technical ; 
 but it really goes to the root of the matter. It shows that the procurer 
 has not done the hurtful act ; what he has done is too remote from the 
 damage to make him answerable for it. The case itself of Winsmore v. 
 Greenbank seems to me to have little or no bearing on the present : a 
 wife is not, as regards her husband, a free agent or separate person ; 
 if to be considered so for the present purpose, she is rather in the char- 
 acter of a servant, with this important peculiarity, that, if she be 
 induced to withdraw from his society and cohabit with another or do 
 him any wrong, no action is maintainable by him against her. In the 
 case of criminal conversation, trespass lies against the adulterer as for an 
 assault on her, however she may in fact have been a willing party to all 
 that the defendant had done. No doubt, therefore, effectual persuasion 
 to the wife to withdraw and conceal herself from her husband is in the eye 
 of the law an actual withdrawing and concealing her ; and so, in other 
 counts of the declaration, was it charged in this very case of Winsmore 
 v. Greenbank. A case explainable and explained on the same principle 
 is that of ravishment of ward. The writ for this lay against one who 
 procured a man’s ward to depart from him ; and, where this was urged 
 in a case hereafter to be cited , 1 Judge Hankford 2 gives the answer: 
 the reason is, he says, because the ward is a chattel, and vests in him 
 who has the right. None of this reasoning applies to the case of a 
 breach of contract ; if it does, I should be glad to know how any 
 treatise on the law of contract could be complete without a chapter on 
 this head, or how it happens that we have no decisions upon it. Cer- 
 tainly no subject could well be more fruitful or important ; important 
 contracts are more commonly broken with than without persuaders or 
 procurers, and these often responsible persons when the principals may 
 not be so. I am aware that with respect to an action on the case the 
 argument primce impressionis is sometimes of no weight. If the cir- 
 
 1 Mich. 11 H. 4, fol. 23 A. pi. 46, 2 E. & B. 255. 
 
 2 William Hankford, Justice of the Common Pleas in 1398, afterwards, in 1414 
 (1 H. 5), Chief Justice of England. 
 
SECT. II.] 
 
 LUMLEY V. GYE. 
 
 53 
 
 cumstances under which the action would be brought have not before 
 arisen, or are of rare occurrence, it will be of none, or only of inconsid- 
 erable weight ; but, if the circumstances have been common, if there 
 has been frequently occasion for the action, I apprehend it is important 
 to find that the action has yet never been tried. Now we find a plenti- 
 ful supply both of text and decision in the case of seduction of servants ; 
 and what inference does this lead to, contrasted with the silence of the 
 books and the absence of decisions on the case of breach of ordinary 
 contracts ? Let this too be considered : that, if by the common law it 
 was actionable effectually to persuade another to break his contract to 
 the damage of the contractor, it would seem on principle to be equally 
 so to uphold him, after the breach, in continuing it. Now upon this the 
 two conflicting cases of Adams v. Bafeald 1 and Blake v. Lanyon are 
 worth considering. In the first, two judges against one decided that an 
 action does not lie for retaining the servant of another, unless the 
 defendant has first procured the servant to leave his master ; in the 
 second, this was overruled ; and, although it was taken as a fact that 
 the defendant had hired the servant in ignorance and, as soon as he 
 knew that he had left his former master with work unfinished, requested 
 him to return, which we must understand to have been a real, earnest 
 request, and onlj 7 continued him after his refusal, which we must take 
 to have been his independent refusal, it was held that the action lay ; 
 and this reason is given : “ The very act of giving him emplo} r ment is 
 affording him the means of keeping out of his former service.” Would 
 the judges who laid this down have held it actionable to give a stray 
 servant food or clothing or lodging out of charity? Yet these would 
 have been equally means of keeping him out of his former service. 
 The true ground on which this action was maintainable, if at all, was 
 the Statute of Laborers, to which no reference was made. But I men- 
 tion this case now as showing how far courts of justice may be led if 
 they allow themselves, in the pursuit of perfectly complete remedies for 
 all wrongful acts, to transgress the bounds which our law, in a wise 
 consciousness as I conceive of its limited powers, has imposed on itself, 
 of redressing only the proximate and direct consequences of wrongful 
 acts. To draw a line between advice, persuasion, enticement and pro- 
 curement is practically impossible in a court of justice ; who shall say 
 how much of a free agent’s resolution flows from the interference of 
 other minds, or the independent resolution of his own? This is a mat- 
 ter for the casuist rather than the jurist ; still less is it for the jurj^man. 
 Again, why draw the line between bad and good faith? If advice given 
 mala fide, and loss sustained, entitle me to damages, wl^, though the 
 advice be given honestly, but under wrong information, with a loss 
 sustained, am I not entitled to them ? According to all legal analogies 
 the bona fides of him who, by a conscious wilful act, directly injures 
 me will not relieve him from the obligation to compensate me in dam- 
 ages for my loss. Again, where several persons happen to persuade to 
 
 1 1 Leon. 240. 
 
54 
 
 CHAMBERS V. BALDWIN. 
 
 [CHAP. I. 
 
 the same effect, and in the result the party persuaded acts upon the 
 advice, how is it to be determined against whom the action may be 
 brought ? Judgment for plaintiff. 
 
 — 
 
 CHAMBERS & MARSHALL v. BALDWIN. 
 
 In the Court of Appeals of Kentucky, 1891. 
 
 [ Reported 91 Ky. 121. 1 ] 
 
 The substance of the cause of action was that plaintiffs had made a 
 contract with one Wise for his crop of tobacco at 5c. per lb. and that 
 thereafter defendants with full knowledge of this contract induced 
 Wise to sell his crop to them at a higher price. 
 
 Judge Lewis delivered the opinion of the court. 
 
 Upon neither principle nor authority could this action have been 
 maintained if the same thing it is complained appellee did had been 
 done by a person on friendly terms with appellant, Chambers, or by a 
 stranger, though he might have profited by the purchase to the dam- 
 age of appellants ; for, competition in every branch of business being 
 not only lawful, but necessary and proper, no person should or can, 
 upon principle, be made liable in damages for buying what may be 
 freely offered for sale by a person having the right to sell, if done 
 without fraud, merely because there may be a preexisting contract be- 
 tween the seller and a rival in business, for a breach of which each 
 party may have his legal remedy against the other ; nor, the right to 
 buy existing, should it make any difference, in a legal aspect, what 
 motive influenced the purchaser. Competition frequently engenders 
 not only a spirit of rivalry but enmity, and if the motive influencing 
 every business transaction that may result in injury or inconvenience 
 to a business rival was made the test of its legality, litigation and 
 strife would be vexatiously and unnecessarily increased, and the sale 
 and exchange of commodities very much hindered. 
 
 Demurrer sustained. 
 
 1 This case is abridged. — Ed. 
 
SECT. II.] 
 
 BOWEN V. HALL. 
 
 55 
 
 BOWEN v. HALL and Others. 
 
 In the Court of Appeal, February 5, 1881. 
 
 [ Reported in 6 Queen’s Bench Division , 333.] 
 
 Brett, L. J . 1 The Lord Chancellor agrees with me in the judgment 
 I am about to read, and it is to be taken therefore as the judgment of 
 the Lord Chancellor as well as of myself. 
 
 In this case, we were of opinion at the hearing, that the contract 
 was one for personal service, though not one which established strictly 
 for all purposes the relation of master and servant between the plain- 
 tiff and Pearson. We were of opinion that there was evidence to 
 justify a finding that Pearson had been induced by the defendants to 
 break his contract of service, that he had broken it, and had thereby, 
 in fact, caused some injury to the plaintiff. We were of opinion that 
 the act of the defendants was done with knowledge of the contract 
 between the plaintiff and Pearson, was done in order to obtain an 
 advantage for one of the defendants at the expense of the plaintiff, was 
 done from a wrong motive, and would therefore justify a finding that 
 it was done in that sense maliciously. There remained nevertheless 
 the question, whether there was any evidence to be left to the jury 
 against the defendants Hall and Fletcher, it being objected that Pearson 
 was not a servant of the plaintiff. The case was accurately within the 
 authority of the case of Lumley v. Gye. If that case was rightly 
 decided, the objection in this case failed. The only question then which 
 we took time to consider was whether the decision of the majorit}^ of 
 the judges in that case should be supported in a Court of Error. That 
 case was so elaborately discussed by the learned judges who took part 
 in it, that little more can be said about it, than whether, after careful 
 consideration, one agrees rather with the judgments of the majority, 
 or with the most careful, learned, and able judgment of Mr. Justice 
 Coleridge. The decision of the majority will be seen, on a careful con- 
 sideration of their judgments, to have been founded upon two chains of 
 reasoning. First, that wherever a man does an act which in law and 
 in fact is a wrongful act, and such an act as may, as a natural and 
 probable consequence of it, produce injury to another, and which in the 
 particular case does produce such an injury, an action on the case will 
 lie. This is the proposition to be deduced from the case of Ashby v. 
 White . 2 If these conditions are satisfied, the action does not the less lie 
 because the natural and probable consequence of the act complained of 
 is an act done by a third person : or because such act so done by the 
 third person is a breach of duty or contract by him, or an act illegal on 
 
 1 The statement of facts and the dissenting opinion of Lord Coleridge, C. J., are 
 omitted. — Ed. 
 
 2 1 Sm. L. C. (8th ed.) p. 264. 
 
56 
 
 BOWEN V. HALL. 
 
 [CHAP. I. 
 
 liis part, or an act otherwise imposing an actionable liability on him. 
 It has been said that the law implies that the act of the third party, 
 being one which he has free will and power to do or not to do, is his 
 own wilful act, and therefore is not the natural or probable result of 
 the defendants’ act. In many cases that may be so, but if the law is 
 so to imply in every case, it will be an implication contrary to manifest 
 truth and fact. It has been said that if the act of the third person is 
 a breach of duty or contract by him, or is an act which it is illegal for 
 him to do, the law will not recognize that it is a natural or probable 
 consequence of the defendant’s act. Again, if that were so held in all 
 cases, the law would in some refuse to recognize what is manifestly true 
 in fact. If the judgment of Lord Ellenborough in Vicars v. Wilcocks 1 
 requires this doctrine for its support, it is in our opinion wrong. 
 
 We are of opinion that the propositions deduced above from Ashby 
 v. White 2 are correct. If they be applied to such a case as Lumley v. 
 Gye, the question is whether all the conditions are by such a case ful- 
 filled. The first is that the act of the defendants which is complained 
 of must be an act wrongful in law and in fact. Merely to persuade a 
 person to break his contract, may not be wrongful in law or fact as in 
 the second case put by Coleridge, J . 3 But if the persuasion be used 
 for the indirect purpose of injuring the plaintiff, or of benefiting the 
 defendant at the expense of the plaintiff, it is a malicious act which is 
 in law and in fact a wrong act, and therefore a wrongful act, and there- 
 fore an actionable act if injury ensues from it. We think that it cannot 
 be doubted that a malicious act, such as is above described, is a wrong- 
 ful act in law and in fact. The act complained of in such a case as 
 Lumley v. Gye, and which is complained of in the present case, is 
 therefore, because malicious, wrongful. That act is a persuasion by 
 the defendant of a third person to break a contract existing between 
 such third person and the plaintiff. It cannot be maintained that it is 
 not a natural and probable consequence of that act of persuasion that 
 the third person will break his contract. It is not only the natural and 
 probable consequence, but b} r the terms of the proposition which 
 involves the success of the persuasion, it is the actual consequence. 
 Unless there be some technical doctrine to oblige one to say so, it 
 seems impossible to say correctly, in point of fact, that the breach of 
 contract is too remote a consequence of the act of the defendants. The 
 technical objections alluded to above have been suggested as the con- 
 sequences of the judgment in Vicars v. Wilcocks . 1 But that judgment 
 when so used or relied on seems to us to be disapproved in the opinions 
 given in the House of Lords in L3 T nch v. Knight , 4 and seems to us 
 when so used to be unreasonable. In the case of Lumley v. Gye, and 
 in the present case, the third condition is fulfilled, namely, that the act 
 of the defendant caused an injury to the plaintiff, unless again it can be 
 
 1 8 East, 1. 2 1 Sm. L. C. (8th ed.) p. 264. 
 
 8 Supra , 609. * 9 H, L. C. 57 7. 
 
SECT. II.] 
 
 ASHLEY V. DIXON. 
 
 57 
 
 said correctly that the injury is too remote from the cause. But that 
 raises again the same question as has been just dismissed. It is not 
 too remote if the injury is the natural and probable consequence of the 
 alleged cause. That is stated in all the opinions in Lynch v. Knight. 1 
 The injury is in such a case in law as well as in fact a natural and 
 probable consequence of the cause, because it is in fact the consequence 
 of the cause, and there is no technical rule against the truth being 
 recognized. It follows that in Lumley v. Gye, and in the present case, 
 all the conditions necessary to maintain an action on the case are 
 fulfilled. 
 
 Another chain of reasoning was relied on by the majority in Lumley 
 v. Gye, and powerful^ combated by Coleridge, J. It was said that 
 the contract in question was within the principle of the Statute of 
 Laborers, that is to say, that the same evil was produced by the same 
 means, and that as the statute made such means when employed in the 
 case of master and servant, strictly so called, wrongful, the common 
 law ought to treat similar means employed with regard to parties 
 standing in a similar relation as also wrongful. If, in order to support 
 Lumlej^ v. G3’e, it had been necessary to adopt this proposition, we 
 should have much doubted, to say the least. The reasoning of Cole- 
 ridge, J., upon the second head of his judgment seems to us to be as 
 nearly as possible, if not quite, conclusive. But we think it is not 
 necessary to base the support of the case upon this latter proposition. 
 We think the case is better supported upon the first and larger doctrine. 
 And we are therefore of opinion that the judgment of the Queen’s Bench 
 Division was correct, and that the principal appeal must be dismissed. 
 
 Appeal dismissed. 
 
 ASHLEY v. DIXON. 
 
 In the Court of Appeals of New York, 1872. 
 
 {Reported, 48 N. Y. 430.] 
 
 Appeal from judgment of the General Term of the Supreme Court 
 in the fourth judicial district, affirming a judgment in favor of plain- 
 tiffs entered upon a verdict. 
 
 The action is brought to recover damages to which plaintiffs claim 
 themselves entitled from the following facts : — 
 
 On the 24th of January, 1863, one Edwin L. Patrick, by agreement 
 in writing, contracted to sell and convey to William H. McEachron, 
 plaintiffs’ testator, certain premises in Washington county, the deed 
 to be delivered April 1st, and purchase-money paid April 3d, then 
 next : On the 10th of February, 1863, McEachron contracted to sell 
 and convey the premises to defendant ; deed to be delivered and pur- 
 
 i 9 H. L. C. 577. 
 
58 
 
 ASHLEY V. DIXON. 
 
 [CHAP. L 
 
 chase money paid April 1st. Subsequently, defendant, by offering a 
 larger price, induced Patrick not to perform. Upon the 1st day of 
 April, McEachron went to Patrick to tender the money and demand 
 deed, but Patrick was absent; a tender and demand were subse- 
 quently made and refused. Defendant made a tender under his con- 
 tract, and demanded a deed of McEachron April 1st. Upon the 4th 
 of April, Patrick deeded to defendant. Plaintiffs obtained a verdict 
 for $566.58. 
 
 Earl, C. If this be treated as an action to recover the purchase 
 price of the real estate which McEachron contracted to sell to the de- 
 fendant, or as an action to recover the liquidated damages mentioned 
 in the contract, the action must fail, for the reason that McEachron 
 did not perform, and was not able to perform, on his part. 
 
 If the action be treated, as it was on the trial, as one to recover 
 damages for a conspiracy between the defendant and Patrick to de- 
 fraud McEachron out of his contract with Patrick, and to prevent the 
 performance of his contract with the defendant, then the action must 
 fail, because there was not sufficient proof of such a conspiracy, and 
 the motion to nonsuit the plaintiffs should have been granted. There 
 was no evidence which would warrant the jury to find that Patrick 
 absented himself from home, or refused to perform his contract with 
 McEachron, at the instigation of the defendant. 
 
 But even if defendant had induced Patrick not to perform his con- 
 tract, that alone would not make him liable to the plaintiffs for dam- 
 ages. He could advise and persuade Patrick not to convey the land, 
 under his contract with McEachron, and could, by offering more, in- 
 duce him to convey to himself, without incurring any liability to Mc- 
 Eachron, so long as he was guilty of no fraud or misrepresentation 
 affecting McEachron. If A. has agreed to sell property to B., C. may 
 at any time before the title has passed induce A. not to let B. have 
 the property, and to sell it to himself, provided he be guilty of no 
 fraud or misrepresentation, without incurring any liability to B. ; A. 
 alone, in such case, must respond to B. for the breach of his contract, 
 and B. has no claim upon or relations with C. While, by the moral 
 law, C. is under obligation to abstain from any interference with the 
 contract between A. and B., yet it is one of those imperfect obligations 
 which the law, as administered in our courts, does not undertake to 
 enforce. But if C. makes use of any fraudulent misrepresentations, 
 as to B., to induce A. to violate his contract with him, then there is a 
 fraud, accompanied with damages, which gives B. a cause of action 
 against C. ; as if C. fraudulently represents to A. that B. had failed 
 or absconded, or had declared his intention not to sell to B., and thus 
 induces A. to sell to another. 
 
 Here there is no proof of any fraudulent representations made by 
 defendant to induce Patrick to violate his contract with the plain- 
 tiffs. 
 
 Hence, I can conceive of no theory, upon the facts as they appear 
 before us, upon which this action can be maintained. 
 
59 
 
 SECT. II.] ANGLE V. CHICAGO, ETC. KAIL WAY CO. 
 
 The judgment must be reversed and new trial granted, costs to 
 abide event. 
 
 Judgment reversed. 
 
 ANGLE v. CHICAGO, ETC. E AIL WAY CO. 
 
 In the Supreme Court of the United States, 1894. 
 
 [ Reported 151 U. S. 1.1] 
 
 This was an appeal from a decree of the circuit court of the United 
 States for the Western District of Wisconsin dismissing plaintiff’s 
 bill. The bill was filed on the 23d of May, 1888, against the Chicago, 
 Portage and Superior Eailway Company, the Chicago, St. Paul, Min- 
 neapolis and Omaha Eailway Company, and the Farmers’ Loan and 
 Trust Company. 
 
 Mr. Justice Brewer. 
 
 That which attracts notice on even a casual reading of the bill — 
 the truth of all the allegations in which must be taken, upon this re- 
 cord, to be admitted by the demurrer — is the fact that, while Angle 
 was actually engaged in executing a contract which he had with the 
 Portage Company — a contract whose execution had proceeded so far 
 that its successful completion within the time necessary to secure to 
 the Portage Company its land grant was assured, and when neither 
 he nor the Portage Company was moving or had any disposition to 
 break that contract or stop the work — through the direct and active 
 efforts of the Omaha Company the performance of that contract was 
 prevented, the profits which Angle would have received from a com- 
 pletion of the contract were lost to him, and the land grant to the 
 Portage Company was wrested from it. 
 
 That there were both wrong and loss is beyond doubt. And as said 
 by Croke, J., in Baily v. Merrell, 3 Bulst. 94, 95, “ damage without 
 fraud gives no cause of action ; but where these two do concur and 
 meet together, there an action lieth.” The Portage Company held 
 a land grant worth four millions of dollars. It had contracted for the 
 construction of its road, such construction to be completed in time to 
 perfect its title to the land. The contract had been so far executed 
 that its full completion within the time prescribed was assured. Ex- 
 cept through some wrongful interference, it was reasonably certain 
 that everything would be carried out as thus planned and arranged. 
 
 At this time the Omaha Company, which was a rival in some re- 
 spects, and which had located a line parallel and contiguous to the line 
 of the Portage Company, interferes, and interferes in a wrongful way. 
 It bribes the trusted officers of the Portage Company to transfer the 
 entire outstanding stock into its hands, or at least place it under its 
 control. Beiag thus the only stockholder, it induces the general man- 
 l This case is much abridged. — Ed. 
 
60 
 
 ANGLE V. CHICAGO, ETC. RAILWAY CO. [CHAP. I. 
 
 ager to withdraw the several engineering corps, whose presence was 
 necessary for the successful carrying on of the work of constructing 
 the road ; to give such notice as to result in the seizure of all the 
 tools and supplies of the contractor and the company, and the dis- 
 persion of all laborers employed. To prevent an}?- action by the faith- 
 ful officers of the Portage Company, it wrongfully obtains an injunc- 
 tion tying their hands. In the face of this changed condition of 
 affairs the company, which had negotiated with the Portage Company 
 and was ready to advance it money, surrendered the one hundred 
 thousand of the bonds, and abandoned the arrangement. By false 
 representations to the legislature as to the facts of the case, it per- 
 suaded that body to revoke the grant to the Portage Company and 
 bestow the lands upon itself. 
 
 That this was a wrongful interference on the part of the Omaha 
 Company, and that it resulted directly in loss to the contractor and to 
 the Portage Company, is apparent. It is not an answer to say that 
 there was no certainty that the contractor would have completed his 
 contract, and so earned these lands for the Portage Company. If 
 such a defence were tolerated, it would always be an answer in case 
 of any wrongful interference with the performance of a contract, for 
 there is always that lack of certainty. It is enough that there should 
 be, as there was here, a reasonable assurance, considering all the sur- 
 roundings, that the contract would be performed in the manner and 
 within the time stipulated, and so performed as to secure the land to 
 the company. Reversed, and the case remanded with instructions to 
 overrule the demurrer. 
 
 Unfair Competition by Inducement of Breach of Contract. — Exchange Co. v. 
 Gregory , 1896, 1 Q. B. 347; Angle v. R. R., 151 U. S. 1; Heaton Co. v. HicJc, 52 Fed. 667; 
 R. R. v. McConnell, 82 Fed. 65; May v. Woods, 172 Mass. 11; Detz v. Winfree , 80 Tex. 
 400; accord Boyson v. Thorne, 98 Cal. 578; Chambers v. Baldwin, 91 Ky. 158; Land Co. 
 v. Commission Co., 139 Mo. 439; Ashley v. Dixon, 48 N. Y. 430 contra. — Ed. 
 
SECT. II.] 
 
 BLOFELD V. PAYNE. 
 
 61 
 
 (2) The Customer Not Under Contract. 
 
 (a) FRAUD. 
 
 BLOFELD v. PAYNE and Another. 
 
 In the King’s Bench, January 12, 1833. 
 
 [Reported in 4 Barnewall Sp Adolphus, 410.] 
 
 Case. The declaration stated that the plaintiff was the inventor and 
 manufacturer of a metallic hone for sharpening razors, &c., which hone 
 he was accustomed to wrap up in certain envelopes containing directions 
 for the use of it, and other matters ; and that the said envelopes were 
 intended, and served, to distinguish the plaintiff’s hones from those of all 
 other persons ; that the plaintiff enjo3’ed great reputation for the good 
 quality of his hones, and made great profit by the sale thereof ; that the 
 defendants wrongfully and without his consent caused a quantity of 
 metallic hones to be made and wrapped in envelopes resembling those 
 of the plaintiff, and containing the same words, thereby denoting that 
 they were of his manufacture, which hones the defendants sold so 
 wrapped up as aforesaid, as and for the plaintiff’s, for their own gain, 
 whereby the plaintiff was prevented from disposing of a great number 
 of his hones, and they were depreciated in value and injured in reputa- 
 tion, those sold by the defendants being greatly inferior. Plea, the 
 general issue. At the trial before Denman, C. J., at the sittings in Lon- 
 don after last term, it appeared that the defendants had obtained some 
 of the plaintiff’s wrappers, and used them as stated in the declaration ; 
 but no proof was given of any actual damage to the plaintiff. The 
 questions left by his Lordship to the jury were, first, whether the plain- 
 tiff was the inventor or manufacturer? and, secondly, whether the 
 defendants’ hones were of inferior quality ? but he stated to them that 
 even if the defendants’ hones were not inferior, the plaintiff was entitled 
 to some damages, inasmuch as his right had been invaded by the fraud- 
 ulent act of the defendants. The jury found for the plaintiff, with one 
 farthing damages, but stated that they thought the defendants’ hones 
 were not inferior to his. Leave was reserved to move to enter a 
 nonsuit. 
 
 Barstow now moved accordingly. The special damage alleged in the 
 declaration was of the very essence of the case, and the plaintiff having 
 failed to prove it, no ground of action remained. The whole struggle 
 between the parties was, whether or not the defendants’ hones were 
 inferior to the plaintiff’s, and the jury found that they were not. The 
 declaration was not supported. 
 
 Littledale, J. I think enough was proved to entitle the plaintiff to 
 recover. The act of the defendants was a fraud against the plaintiff ; 
 and if it occasioned him no specific damage, it was still, to a certain 
 extent, an injury to his right There must be no rule. 
 
62 
 
 STONE V. CARLAN. 
 
 [CHAP. I. 
 
 Taunton, J. I think the verdict ought not to be disturbed. The 
 circumstance of the defendants’ having obtained the plaintiff" s wrappers, 
 and made this use of them, entitles the plaintiff to some damages. 
 
 Patteson, J. It is clear the verdict ought to stand. The defendants 
 used the plaintiffs envelope, and pretended it was their own : they had 
 no right to do that, and the plaintiff was entitled to recover some dam- 
 ages in consequence. 
 
 Denman, C. J. , concurred. Rule refused . 
 
 STONE and Others v. CARLAN and Others. 
 
 In the New York Superior Court, 1850. 
 
 [Reported in 13 Law Reporter , 360 .] 
 
 The important facts of this case appear in the opinion of the court. 
 
 J. Graham , for defendants. 
 
 IT. A. Mott and J. F. Brady , for plaintiff. 
 
 Campbell, J. A motion is made for an injunction restraining the 
 defendants from using the names “Irving Hotel,” “Irving House,” 
 “ Irving,” &c., upon their coaches and upon certain badges worn by 
 defendants upon their arms ~nd hats. The complainants have an 
 agreement with the proprietors of the Irving House, in this city, under 
 which they are permitted to use the name of such proprietors, and the 
 name of their hotel, upon their coaches and the badges of their servants ; 
 the complainants paying therefor a stipulated sum, and having also 
 entered into bonds for the faithful discharge of these duties. All the 
 porters are engaged in carrying passengers and their baggage to and 
 from the hotels, boats, railroad depots, &c. 
 
 It was well remarked by the Master of the Rolls, in Croft v. Day, 
 that “ No man has a right to dress himself in colors, or adopt and bear 
 symbols, to which he has no peculiar or exclusive right, and thereby 
 personate another person, for the purpose of inducing the public to sup- 
 pose, either that he is that other person, or that he is connected with 
 and selling the manufacture of such other person, while he is really 
 selling his own. It is perfectly manifest that to do these things is to 
 commit a fraud, and a very gross fraud. I stated upon a former occa- 
 sion, that, in my opinion, the right which any person may have to the 
 protection of this court does not depend upon any exclusive right which 
 he may be supposed to have to a particular name, or to a particular 
 form of words. His right is to be protected against fraud ; and fraud 
 may be practised against him by means of a name, though the person 
 
SECT. II.] 
 
 STONE V. CARLAN. 
 
 63 
 
 practising it maj’ have a perfect right to use^that name, provided he 
 does not accompany the use of it with such other circumstances as to 
 effect a fraud upon others.” I entirely concur in the foregoing views. 
 The question is, whether the defendants have committed a fraud. I can- 
 not doubt that their intention was to mislead, and to induce travellers to 
 believe that they were servants of the proprietors of the Irving House. 
 This is a large and popular hotel, well known in the county, and many 
 a traveller may wish to resort to it on his arrival in this city’, who, at 
 the same time, may not know whether the carriages of the proprietors 
 are painted red or white, or whether the exact designation is that of 
 the Irving House or Irving Hotel. Such traveller may wish to intrust 
 himself and his baggage to the servants of the hotel, feeling that, in 
 doing so, he would be protected against loss or damage by the responsi- 
 bility of the proprietors. Now, in this case, it can hardly be doubted 
 but that the object of the defendant was to induce the belief on the 
 part of the travellers that they were the servants of this hotel. To in- 
 duce such belief, it was not necessary that the resemblance of all carriages 
 and badges should be complete. From the very circumstances of the 
 case, it would not be necessary to have a perfect resemblance, in order 
 to commit even a gross fraud. It is not necessary to go, in this case, 
 the length of the ordinary cases of trade-marks, though this case might 
 come within the rules of those cases. (See Coates v. Holluck. 1 ) The 
 false pretences of the defendants would, I think, necessarih 7 tend to 
 mislead. The defendants have a perfect right to engage in a spirited 
 competition in conveyance of passengers and their baggage. They may 
 employ better carriages than the plaintiffs. They may carry for less 
 fare. Thej 7 may be more active, energetic, and attentive. The em- 
 ployment is open to them, but “ they must not dress themselves in 
 colors, and adopt and bear sj’mbols,” which belong to others. I had 
 some doubt, at the time of the argument, whether the complaint should 
 not have been made by the proprietors of the Irving House ; but, on 
 further reflection, think that the suit is well brought. The plaintiffs are 
 the real parties in interest. It is possible that, owing to the general 
 liability of the proprietors, as innkeepers, for the loss of the property of 
 guests, the proprietors might also be entitled to an injunction restrain- 
 ing the defendants from holding themselves out as the servants of the 
 hotel. 
 
 An injunction must issue, as prayed for, against all the defendants. 
 
 Fraud by Imitation of Dress. — Knott v. Morgan, 2 Keene, 213; Blojield v. Payne, 
 
 4 B. & Ad. 410; Aver v. Goodwin, 30 Ch. D. 1; Coates v. Merrick, 149 U. S. 562; Sawyer 
 v. Hubbard, 32 Fed. 388; Fairbanks Co. v. Bell Co., 77 Fed. 869 ; Dennison Co. v. Thomas 
 Co., 94 Fed. 651; Hires v. Consumers ’ Co., 100 Fed. 809; Awl Co. v. Awl Co., 168 Mass. 
 154; Williams v. Spenser, 25 How. Pr. 365. 
 
64 
 
 BOULNOIS V. PEAKE. 
 
 [CHAP. 1. 
 
 CROFT v. DAY. 
 
 In Chancery, 1843. 
 
 [Reported 7 Beavan , 84. 1 ] 
 
 [A blacking manufactory had long been carried on under the firm 
 name of Day & Martin at 97 High Holborn. A person by the name of 
 Day with one Martin set up the same trade at 90^ Holborn Hill. 
 The new concern marked their product Day & Martin, upon labels of 
 similar style.] 
 
 The Master of the Rolls. The accusation which is made against 
 this defendant is this: — that he is selling goods, under forms and 
 symbols of such a nature and character as will induce the public to 
 believe that he is selling the goods which are manufactured at the 
 manufactory which belonged to the testator in this cause. It has been 
 very correctly said that the principle in these cases is this, — that no 
 man has a right to sell his own goods as the goods of another. You 
 may express the same principle in a different form, and say that no 
 man has a right to dress himself in colors or adopt and bear symbols, 
 to which he has no peculiar or exclusive right, and thereby personate 
 another person, for the purpose of inducing the public to suppose, 
 either that he is that other person, or that he is connected with and 
 selling the manufacture of such other person, while he is really selling 
 his own. It is perfectly manifest that to do these things is to commit 
 a fraud and a very gross fraud. I stated, upon a former occasion, that, 
 in my opinion, the right which any person may have to the protection 
 of this court does not depend upon any exclusive right which he may 
 be supposed to have to a particular name, or to a particular form of 
 words. His right is to be protected against fraud, and fraud may be 
 practised against him by means of a name, though the person practis- 
 ing it may have a perfect right to use that name, provided he does not 
 accompany the use of it with such other circumstances as to effect a 
 fraud upon others. 
 
 Injunction granted. 
 
 BOULXOIS v. PEAKE. 
 
 In Chancery, 1868. 
 
 [Reported L. R. 13 Ch. D. 513 note.] 
 
 The plaintiffs were sellers of carriages by auction and on commis- 
 
 Fraud as to the Seller. — Croft v. Day , 7 Beav. 84; Jurton v. Jurton, 42 Ch. D. 
 128; Brewing Co. v. Brewing Co., 1898, 1 Ch. 539; Sawyer Co. v. June Co., 163 U. S. 109; 
 Pillsbury v. Pillsbury Co., 64 Fed. 841; Chaney v. Eoxie, 143 Mass. 502; Meyers v. Buggy 
 Co., 54 Mich. 215; Hall's Appeal, 60 Pa. 158. 
 
SECT. II.] 
 
 REDDAWAY V. BANHAM. 
 
 65 
 
 sion, and carried on their business in a part of the Baker Street 
 Bazaar (Baker Street and King Street), where they had been estab- 
 lished for forty years, and had standing room for 600 carriages. They 
 had always used the title of “Carriage Bazaar,” and headed their 
 bills with these words, and the allegation in the bill was that no other 
 establishment in Baker Street or London was known as “ The Carriage 
 Bazaar.” 
 
 The defendant, in January, 1868, took the house No. 24 Baker 
 Street, and before opening it as a shop and standing place for carriages 
 announced it on a board as a “Carriage Repository.” In February, 
 1868, he had put up as the title of his shop the words in large letters 
 “ New Carriage Bazaar,” and in his advertisements had used the same 
 title with the addition “ Opposite Madame Tussaud’s.” 
 
 The plaintiffs moved for an injunction. Evidence was adduced of 
 mistakes and confusion between the establishment of the plaintiffs 
 and that of the defendant from the adoption of this title “ Carriage 
 Bazaar.” 
 
 Gifford, V. C., said that the principle in these cases was not that 
 the plaintiff had any property in the particular title, but that he had 
 a right to prevent others from personating his business by using any 
 such description as would lead customers to suppose they were trad- 
 ing with the plaintiffs. The defendant had failed to satisfy the court 
 that he had any other motive in what he had done than that of seek- 
 ing to gain an unfair advantage over the plaintiffs. Why did he 
 change the title “ Carriage Repository ” into “ Carriage Bazaar ? ” 
 The plaintiffs had established their case, and there must be an in- 
 junction. 
 
 REDDAWAY v. BANHAM. 
 
 In the House of Lords, 1896. 
 
 [Reported 1896, A. C. 199.1] 
 
 [The appellant, Reddaway, began in 1879 the manufacture of 
 “ Camel Hair Belting.” It had a large sale at home and abroad. The 
 respondent, Banham, began the manufacture of camel hair belting 
 in 1891. The yarn of which the belts of each party were made con- 
 sisted chiefly of camel’ s hair. The questions left to the jury with their 
 answers were as follows : — ] 
 
 Q. 1 . Does “ Camel Hair Belting ” mean belting made by the 
 plaintiffs, as distinguished from belting made by other manufacturers ? 
 A. Yes. — Q. 2. Or does it mean belting of a particular kind without 
 reference to any particular maker ? A. No. — Q. 3. Do the defend- 
 ants so describe their belting as to be likely to mislead purchasers, 
 
 1 This case is much abridged. — Ed. 
 
66 
 
 REDDAWAY V. BANHAM. 
 
 [CHAP. I 
 
 and to lead them to buy the defendants’ belting, as and for the belt- 
 ing of the plaintiffs ? A. Yes. — Q. 4. Did the defendants endeavor 
 to pass off their goods, as and for the goods of the plaintiffs, so as to 
 be likely to deceive purchasers ? A. Yes. 
 
 Lord Morris. My Lords, I have felt some difficulty in concurring 
 as I do in the judgment proposed to be given in favor of the appel- 
 lants by your Lordships, for it establishes, and in my opinion for the 
 first time, the proposition that a trader is not permitted to merely tell 
 truthfully and accurately the material of which his goods are made. 
 I find myself coerced, however, to a conclusion against the respond- 
 ents by the finding of the jury, which amounts to this, “that camel 
 hair belting had become so identified with the name of the appellants 
 Reddaway as that camel hair belting had in the market obtained the 
 meaning of Reddaway’s belting ; ” and there was sufficient evidence 
 given at the trial to support that finding of the jury. That finding 
 establishes as a fact that the use of the words “ camel hair belting ” 
 simpliciter deceives purchasers, and it becomes necessary for the re- 
 spondents to remove that false impression so made on the public. 
 That, to my mind, is obviously done when the respondents put promi- 
 nently and in a conspicuous place on the article the statement that 
 it was camel hair belting manufactured by themselves. Having done 
 so, they would, as it appears to me, fully apprise purchasers that it 
 was not Reddaway’s make, by stating that it was their own. A re- 
 presentation deceiving the public is and must be the foundation of the 
 appellants’ right to recover ; they are not entitled to any monopoly of 
 the name “ camel hair belting ” irrespective of its deceiving the public, 
 and every one has a right to describe truly his article by that name, 
 provided he distinguishes it from the appellants’ make. In this case 
 the respondents did not so distinguish it because they omitted to state, 
 that it was their own make. Consequently I concur in the motion 
 which has been made. 
 
 Order appealed from reversed, with costs here and below : Declared 
 that judgment ought to be entered for the plaintiffs in the Queen’s 
 Bench Division for an injunction restraining the defendants and each 
 of them from using the words “ camel hair ” as descriptive of or in 
 connection with belting manufactured by them or either of them, or 
 belting (not being of the plaintiffs’ manufacture) sold or offered for 
 sale by them or either of them without clearly distinguishing such 
 belting from the belting of the plaintiffs ; with this declaration judg- 
 ment of Collins, J., in all other respects restored : Cause remitted to 
 the Queen’s Bench Decision. 
 
 Fraud by Infringement of Trade Designation. — Crawshay v. Thompson, 4 M. & 
 G. 357; Johnson v. gwing, 7 A. C. 219; Witherspoon v. Currie, L. R. 5 H. L. 508; Redda - 
 way v. Banham, 1896, A. C. 199; Birmingham Co. v. Powell, [1897] A. C. 710; Walker v. 
 Alley, B. Grant, Ch. 366; Canal Co. v. Clark, 13 Wall. 11; Hilson Co. v. Foster, 80 Fed. 
 896; Mossier v. Jacobs, 68 111. App. 571; Waltham Co. v. U. S. Co., 173 Mass. 85; Saun « 
 ders v. Jacobs , 20 Mo. Anp. 96. 
 
SECT. II.] WALTHAM WATCH CO. V. UNITED STATES WATCH CO. 67 
 
 WALTHAM WATCH CO. v. UNITED STATES WATCH CO. 
 
 In the Supreme Court of Massachusetts, 1899. 
 
 [Reported 173 Mass . 85.] 
 
 Bill in equity, filed October 15, 1890, and amended September 22, 
 1898, to restrain the use of the word “ Waltham ” on watches made 
 by the defendant, to the detriment of the plaintiff’s business as a 
 manufacturer of watches in Waltham. Hearing before Knowlton, 
 J., who, with the consent of the parties, reported the case for the con- 
 sideration of the full court. The facts appear in the opinion. 
 
 Holmes, J. This is a bill brought to enjoin the defendant from 
 advertising its watches as the “ Waltham Watch” or “ Waltham 
 Watches,” and from marking its watches in such a way that the word 
 “ Waltham ” is conspicuous. The plaintiff was the first manufacturer 
 of watches in Waltham, and had acquired a great reputation before 
 the defendant began to do business. It was found at the hearing that 
 the word “Waltham,” which originally was used by the plaintiff in a 
 merely geographical sense, now, by long use in connection with the 
 plaintiff’s watches, has come to have a secondary meaning as a designa- 
 tion of the watches which the public has become accustomed to asso- 
 ciate with the name. This is recognized by the defendant so far that 
 it agrees that the preliminary injunction, granted in 1890, against us- 
 ing the combined words “ Waltham Watch ” or “ Waltham Watches ” 
 in advertising its watches, shall stand and shall be embodied in the 
 final decree. 
 
 The question raised at the hearing, and now before us, is whether 
 the defendant shall be enjoined further against using the word 
 “Waltham,” or “Waltham, Mass.,” upon the plates of its watches 
 without some accompanying statement which shall distinguish clearly 
 its watches from those made by the plaintiff. The judge who heard 
 the case found that it is of considerable commercial importance to 
 indicate where the defendant’s business of manufacturing is carried 
 on, as it is the custom of watch manufacturers so to mark their 
 watches, but nevertheless found that such an injunction ought to 
 issue. He also found that the use of the word “Waltham,” in its 
 geographical sense, upon the dial, is not important, and should be 
 enjoined. 
 
 The defendant’s position is that, whatever its intent, and whatever 
 the effect in diverting a part of the plaintiff’s business, it has a right 
 to put its name and address upon its watches ; that to require it to 
 add words which will distinguish its watches from the plaintiff’s in 
 the mind of the general public is to require it to discredit them in 
 advance ; and that, if the plaintiff by its method of advertisement has 
 associated the fame of its merits with the city where it makes its 
 wares instead of with its own name, that is the plaintiff’s folly, and 
 
68 WALTHAM WATCH CO. V. UNITED STATES WATCH CO. [CHAP. I. 
 
 cannot give it a monopoly of a geographical name, or entitle it to in- 
 crease the defendant’s burdens in advertising the place of its works. 
 
 In cases of this sort, as in so many others, what ultimately is to be 
 worked out is a point or line between conflicting claims, each of which 
 has meritorious grounds and would be extended further were it not 
 for the other. Boston Ferrule Co. v. Hills , 159 Mass. 147, 149, 150. 
 It is desirable that the plaintiff should not lose custom by reason of 
 the public mistaking another manufacturer for it. It is desirable 
 that the defendant should be free to manufacture watches at Wal- 
 tham, and to tell the world that it does so. The two desiderata can- 
 not both be had to their full extent, and we have to fix the boundaries 
 as best we can. On the one hand, the defendant must be allowed to 
 accomplish its desideratum in some way, whatever the loss to the 
 plaintiff. On the other, we think the cases show that the defendant 
 fairly may be required to avoid deceiving the public to the plaintiff’s 
 harm, so far as is practicable in a commercial sense. 
 
 It is true that a man cannot appropriate a geographical name, but 
 neither can he a color, or any part of the English language, or even a 
 proper name to the exclusion of others whose names are like his. 
 Yet a color in connection with a sufficiently complex combination of 
 other things may be recognized as saying so circumstantially that the 
 defendant’s goods are the plaintiff’s as to pass the injunction line. 
 New England Awl & Needle Co. v. Marlborough Awl & Needle Co ., 168 
 Mass. 154, 156. So, although the plaintiff has no copyright on the 
 dictionary or any part of it, he can exclude a defendant from a part 
 of the free field of the English language, even from the mere use of 
 generic words unqualified and unexplained, when they would mislead 
 the plaintiff’s customers to another shop. Reddaway v. Banham, 
 [1896] A. C. 199. So the name of a person may become so associated 
 with his goods that one of the same name coming into the business 
 later will not be allowed to use even his own name without distinguish- 
 ing his wares. Brinsmead v. Brinsmead , 13 Times L. R. 3. Redda- 
 way v. Banham , [1896] A. C. 199, 210. See Singer Manuf. Co. v. June 
 Manuf. Co ., 163 U. S. 169, 204 ; Allegretti Chocolate Cream Co. v. 
 Keller , 85 Fed. Rep. 643. And so, we doubt not, may a geographical 
 name acquire a similar association with a similar effect. Montgomery 
 v. Thompson, [1891] A. C. 217. 
 
 Whatever might have been the doubts some years ago, we think 
 that now it is pretty well settled that the plaintiff, merely on the 
 strength of having been first in the field, may put later comers to the 
 trouble of taking such reasonable precautions as are commerciall} 7- 
 practicable to prevent their lawful names and advertisements from 
 deceitfully diverting the plaintiff’s custom. 
 
 We cannot go behind the finding that such a deceitful diversion is 
 the effect and intended effect of the marks in question. We cannot 
 go behind the finding that it is practicable to distinguish the defend- 
 ant’s watches from those of the plaintiff, and that it ought to be done. 
 The elements of the precise issue before us are the importance of indi- 
 
WAMSUTTA MILLS V. FOX. 
 
 69 
 
 SECT. IL] 
 
 eating the place of manufacture and the discrediting effect of distin- 
 guishing words on the one side, and the importance of preventing the 
 inferences which the public will draw from the defendant’s plates as 
 they now are, on the other. It is not possible to weigh them against 
 each other by abstractions or general propositions. The question is 
 specific and concrete. The judge who heard the evidence has an- 
 swered it, and we cannot say that he was wrong. 
 
 Decree for the plaintiff. 
 
 MEDICAL TEA CO v. KIRSCHSTEIK 
 In the Circuit Court of the United States, 1900. 
 
 [ Reported 101 Fed. Rep. 580.] 
 
 Lacombe, Circuit Judge. In view of the decision of the case 
 against Wilhelmina Weber in the Eastern district, complainant is 
 not entitled to any relief which will interfere with the labels or man- 
 ner of packing the goods complained of. The further representation, 
 however, of the defendant, when selling, that such tea is “ Weber’s 
 tea,” is an independent act not considered in the former suit. He may 
 sell the packages which Wilhelmina is allowed to put up, and which 
 represent the goods as “genuine imported Alpine herb tea, manufac- 
 tured by E. G-. Weber & Co.,” and may repeat that representation 
 orally ; but, when he further represents the contents to be “ Weber’s 
 tea,” his statements, as the affidavits show, tend to produce a con- 
 fusion of goods, against which the public should be protected. The 
 prayer for relief seems to be broad enough to warrant an injunction 
 against selling any preparation, not manufactured by complainant, 
 upon the representation that it is “ Weber’s tea.” To that extent the 
 motion is granted ; in all other respects, it is denied. 
 
 WAMSUTTA MILLS v. FOX. 
 
 In the' Circuit Court of the United States, 1892. 
 
 [ Reported 49 Fed. Rep. 141.] 
 
 In equity. Bill in equity by the Wamsutta Mills against Moses 
 
 Fraud by Substitution op Goods. — Barnet v. Leuchars , 13 L. T. 495 ; Saxlehnerv. 
 Eisener, 88 Fed. 61; Medical Tea Co. v . Kirchstein, 101 Fed. 580; Avery v. Merkle , 81 Ky. 
 75; Stonebrecker v. Stonebrecker, 33 Md. 252; Moroe v. Smith, 13 N. Y. S. 708. — Ed. 
 
70 
 
 WAMSUTTA MILLS V. FOX. 
 
 [CHAP. I. 
 
 Fox, to restrain defendant from advertising and selling articles as 
 made from muslin manufactured by defendant, which were, in fact, 
 made from inferior muslin. Motion for temporary injunction. 
 Granted. 
 
 Shipman, District Judge. This is a bill in equity to restrain the 
 defendant from advertising and selling shirts, made from inferior cot- 
 ton shirtings, as made from Wamsutta cotton, upon the ground that 
 the cotton shirting manufactured by the plaintiff, and known as and 
 generally called “ Wamsutta cotton,” has acquired a well-known, widely 
 extended, and high reputation, and extensive sales throughout the 
 country ; and that the sale of an inferior article under that name, and 
 the untrue assertion by advertisements, and otherwise, that the inferior 
 cotton shirting is Wamsutta cotton, injure the plaintiff’s reputation, 
 the good will, and the profits of its business. The present hearing is 
 upon a motion for temporary injunction. 
 
 'The allegations of the bill in regard to the high and general reputa- 
 tion of the cotton shirting manufactured by the plaintiff, and generally 
 called “ Wamsutta,” are not denied. It appears from the affidavits that 
 the defendant is a large retail dry-goods merchant in Hartford, whose 
 business is divided into departments, and that one of his employes is 
 the head of the men’s furnishing goods department. In accordance 
 with a not unusual custom among merchants of this class, the prices of 
 the odd lots on hand were reduced after the 1st of January, and were 
 advertised, by an extensive advertisement, to be sold at these low prices 
 during the week beginning January 4, 1892. Among men’s furnishing 
 goods there were advertised “ Men’s Laundered Shirts, Wamsutta cot- 
 ton, 67c., value $1.00. Men’s Night-Shirts, Wamsutta cotton, 47c., 
 value 75c.” This part of the advertisement was prepared by the head 
 of said department, without the knowledge of Fox, who did not read it. 
 Affidavits are produced from three persons, who bought at the defend- 
 ant’s store, in response to this advertisement, four night-shirts and one 
 laundered shirt, all which were expressly represented by the salesman 
 in attendance to be Wamsutta cotton. The clerk said he would warrant 
 the laundered shirt to be Wamsutta cotton, and, at the request of the 
 buyer, inserted “ Warn.” in the bill of the goods. These shirts were all 
 made of greatly inferior goods, which were not the manufacture of the 
 plaintiff. The defendant’s affidavit states that he knew nothing of the 
 untrue representations, that they were made without his orders, that his 
 attention was first called to their existence by the motion papers in this 
 case, when he forthwith ordered the sales to be stopped, and that his 
 general orders to his clerks have been to exercise all possible care, and 
 not to misrepresent the origin of any article. The head of the depart- 
 ment says, in his affidavit, that there were laundered shirts on hand, 
 stamped “ Wamsutta muslin,” which were made of Wamsutta cotton, 
 and were marked down to 67 cents, and that the advertisement referred 
 to these shirts, and to no others ; and that, in the advertisement in re- 
 gard to the night-shirts, he made a mistake, innocently, and without 
 
SECT. II.] 
 
 SINGER MFG. CO. V. JUNE MFG. CO. 
 
 71 
 
 intention to misrepresent ; that the sales of these shirts were stopped 
 on January 16th, when the papers were served. Between the 2d and 
 16th of January, 25 laundered shirts were sold, some of them made 
 of Wamsutta cotton, and 31 night-sliirts were sold. The conduct of 
 these persons cannot be defended. The motion is granted. 
 
 PONTEFACT v. ISENBERGER. 
 
 In the Circuit Court of New York, 1900. 
 
 [. Reported 106 Federal Reporter, 499.] 
 
 Wheeler, District Judge. This cause has been submitted upon an 
 agreed statement of facts. It shows that the plaintiffs have the sole 
 right to the use of the trade-mark “ Golden Wedding,” as applied to 
 the whisky of their production, and that the defendant has refilled 
 the plaintiffs’ barrels carrying the trade-mark, to palm off his product 
 as that of the plaintiffs. The plaintiffs are, therefore, entitled to a 
 decree according to the terms of the stipulation. Decree for plaintiffs 
 for $350, according to stipulation. 
 
 SINGER COMPANY v. JUNE COMPANY. 
 
 In the Supreme Court of the United States, 1896. 
 
 [Reported 163 U. S. 169.1] 
 
 Bill for an injunction restraining defendants from manufacturing 
 sewing machines like those of the plaintiffs and selling them as 
 “ Singer ” machines. 
 
 Mr. Justice White, after stating the facts : — 
 
 The public having the right on the expiration of the patent to make 
 the patented article and to use its generic name, to restrict this use, 
 either by preventing its being placed upon the articles when manu- 
 factured, or by using it in advertisements or circulars, would be to 
 admit the right and at the same time destroy it. It follows, then, 
 that the right to use the name in every form passes to the public with 
 the dedication resulting from the expiration of the patent. 
 
 The result, then, of the American, the English, and the French 
 doctrine universally upheld is this, that where, during the life of a 
 monopoly created by a patent, a name, whether it be arbitrary or be 
 that of the inventor, has become, by his consent, either express or 
 tacit, the identifying and generic name of the thing patented, this 
 
 1 This case is abridged. — Ed. 
 
72 
 
 COATS V. MERRICK THREAD CO. 
 
 [chap. I. 
 
 name passes to the public with the cessation of the monopoly which 
 the patent created. Where another avails himself of this public dedi- 
 cation to make the machine and use the generic designation, he can 
 do so in all forms, with the fullest liberty, by affixing such name to 
 the machines, by referring to it in advertisements and by other means, 
 subject, however, to the condition that the name must be so used as 
 not to deprive others of their rights or to deceive the public, and, 
 therefore, that the name must be accompanied with such indications 
 that the thing manufactured is the work of the one making it, as will 
 unmistakably inform the public of that fact. 
 
 The right to use the word “ Singer,” which caused the imitative 
 infringement in the device, being lawful, it is plain that the infringe- 
 ment only resulted from the failure to plainly state along with the 
 use of that word the source of manufacture, and therefore this branch 
 of the question is covered by the same legal principle by which we 
 have determined the other. 
 
 Decree requiring unmistakable specification of the manufacturer. 
 
 COATS v. MERRICK THREAD COMPANY. 
 
 In the Supreme Court of the United States, 1893. 
 
 [. Reported 149 U. S. 562.1] 
 
 Mr. Justice Brown, after stating the case : 
 
 The controversy between the two parties then is reduced to the 
 single question whether, comparing the two designs upon the main 
 or upper end of the spool, there is such resemblance as to indicate an 
 intent on the part of defendants to put off their thread upon the pub- 
 lic as that of the plaintiffs, and thus to trade upon their reputation. 
 There can be no question of the soundness of the plaintiffs’ propo- 
 sition that, irrespective of the technical question of trade-mark, the 
 defendants have no right to dress their goods up in such manner as to 
 deceive an intending purchaser, and induce him to believe he is buy- 
 ing those of the plaintiffs. Rival manufacturers may lawfully com- 
 pete for the patronage of the public in the quality and price of their 
 goods, in the beauty and tastefulness of their enclosing packages, in 
 the extent of their advertising, and in the employment of agents, but 
 they have no right, by imitative devices, to beguile the public into 
 buying their wares under the impression they are buying those of 
 their rivals. 
 
 It will be seen that in both devices there is a paper label, circular 
 in form, much smaller than the head of the spool, containing, in black 
 letters upon a gilt ground, the name of the manufacturer, the number 
 of the thread, and the words “ Best Six Cord,” arranged in circular 
 
 1 This case is abridged. — Ed. 
 
73 
 
 SECT. II.] NEW YORK CEMENT CO. V . COPLAY CEMENT CO. 
 
 form to correspond with the shape of the label. Around this label in 
 each case is a peripheral border of natural wood, having the number 
 of the thread embossed upon such periphery. The differences are less 
 conspicuous than the general resemblance between the two. At the 
 same time they are such as could not fail to impress themselves upon 
 a person who examined them with a view to ascertain who was the 
 real manufacturer of the thread. Plaintiffs’ label contains the words 
 “ J. & P. Coats, Best Six Cord ” in a gilt band around the border, and 
 in the centre the symbol “ 200 Yds.” and the number of the thread. 
 Defendants’ label contains the words “ Merrick Thread Co.,” and the 
 number of their thread in the gilt band upon the border, and in the 
 centre the words “ Best Six Cord,” enclosing a star. The periphery 
 of defendants’ spool is also embossed with four stars, instead of the 
 loops of the plaintiffs, as well as the number of the thread. 
 
 Upon the whole, we think the plaintiffs have failed to prove a case 
 of unfair competition, or any illegal attempt of the defendants to im- 
 pose their thread upon the public as that of the plaintiffs ; that with 
 the right to use the black and gold label as other manufacturers have 
 and continue to use it, and with the same right to use the embossed 
 numerals which the plaintiffs have, we think they have taken all the 
 precautions which they were bound to take to prevent a fraudulent 
 imposition of their thread upon the public, and that the decree of the 
 court below dismissing the bill should, therefore, be 
 
 Affirmed. 
 
 NEW YOKK & E. CEMENT CO. v. COPLAY CEMENT CO. 
 
 In the Circuit Court of the United States, 1890. 
 
 [Reported 44 Federal Reporter , 276.] 
 
 Defendants sold cement which they denominated “ Anchor Eosen- 
 dale Cement,” though made in Lehigh County, Pa. Complainants 
 manufacture cement in the town of Eosendale, N. Y., along with 
 15 or 20 other manufacturers. Bill for injunction. 
 
 Bradley, J ustice (after stating facts) : — 
 
 Much evidence has been taken by the parties on this controverted 
 question ; but the view of the case which we have taken obviates the 
 necessity of examining this evidence. Though it be conceded that the 
 name “ Eosendale Cement ” is understood by the public as desig- 
 nating the place where it is made and comes from, and that the de- 
 fendants untruly call their cement by that name, the question still 
 remains whether they can be prosecuted therefor, at the suit of a pri- 
 vate party, who is only one of the many who manufacture cement at 
 Eosendale, and truly denominate their cement “ Eosendale Cement.” 
 Would not the allowance of such an action be carrying the doctrine 
 of liability for unfair competition in business too far ? The counsel 
 
74 
 
 hugiies v. mcdonough . 
 
 [ chap . i . 
 
 for the complainants frankly concedes that the principle for which he 
 contends would enable any crockery merchant of Dresden or else- 
 where, interested in the particular trade, to sue a dealer of New York 
 or Philadelphia who should sell an article as Dresden china when it is 
 not Dresden china. It seems to us that this would open a Pandora’s 
 box of vexatious litigation. A dry-goods merchant, selling an article 
 of linen as Irish linen, could be sued by all the haberdashers of Ire- 
 land, and all the linen dealers of the United States. No doubt the 
 sale of spurious goods, or holding them out to be different from what 
 they are, is a great evil, and an immoral, if not an illegal, act ; but 
 unless there is an invasion of some trade-mark, or trade-name, or pecu- 
 liarity of style, in which some person has a right of property, the 
 only persons legally entitled to judicial redress w T ould seem to be those 
 who are imposed upon by such pretences. 
 
 GLOBE-WERNICKE CO. v. FRED MACY CO. 
 
 Circuit Court of Appeals, United States, 1903. 
 
 [119 Federal Reporter , 696 . *] 
 
 Severns, J. : It is impossible to admit the claim of the appellant 
 to the extent of its pretensions. The very idea of distinguishing 
 implies that it cannot be done by such universal characteristics as 
 belong to other goods of the kind, and which the general public have 
 the undoubted right to use. Thus, the public have the right to make 
 bookcases of any size. From the nature 1 of the requirements they 
 must have resemblance in form, dimensions, and appearance. So no 
 one can have the exclusive privilege of locating them in sections, one 
 above another or end to end, nor in making them of any kind of wood 
 or metal as he chooses, nor in the style or in the finish of his work, 
 unless it is peculiar and out of the ordinary. Upon the claim made 
 for the appellant, it would be impossible, without invading the com- 
 plainant’s right, to construct and sell a bookcase having the most 
 desirable characteristics. 
 
 hughes v. McDonough. 
 
 Supreme Court, New Jersey, 1881. 
 
 [ Reported 43 New Jersey , 459 .] 
 
 Declaration that plaintiff, a blacksmith, shod a mare for one Van 
 Riper ; that defendant maliciously to injure plaintiff did mutilate the 
 work done upon the mare of said Van Riper, without knowledge 
 1 This case is abridged. — Ed. 
 
SECT. II.] 
 
 hugiies v. McDonough, 
 
 75 
 
 of the said Van Riper, by loosing a shoe which was recently put on by 
 the said plaintiff, so that if the mare was driven, the shoe would come 
 off easil}’, and thus make it appear that the said plaintiff was an unskil- 
 ful and careless horseshoer and blacksmith, and that the said mare was 
 not shod in a good and workmanlike manner, and thus deprive the said 
 plaintiff of the patronage and custom of the said Van Riper.” 
 
 The second count charges the defendant with driving a nail in the 
 foot of the horse of Van Riper, after it had been shod by the plaintiff, 
 with the same design as specified in the first count. 
 
 The special damage laid was the loss of Van Riper as a customer. 
 Argued at June term, 1881, before Beasley, Chief Justice, and Justices 
 Scudder, Knapp and Reed. 
 
 For the plaintiff in error, W. JB. Guild , Jr, 
 
 For the defendant, S. Kalisch, 
 
 The opinion of the court was delivered by 
 
 Beasley, C. J. The single exception taken to this record is, that 
 the wrongful act alleged to have been done by the defendant does not 
 appear to have been so closely connected with the damages resulting 
 to the plaintiff as to constitute an actionable tort. The contention was, 
 that the wrong was done to Van Riper; that it was his horse whose 
 shoe was loosened, and whose foot was pricked, and that the immediate 
 injury and damage were to him, and that, consequently, the damages 
 of the plaintiff were too remote to be made the basis of a legal claim. 
 
 But this contention involves a misapplication of the legal principle, 
 and cannot be sustained. The illegal act of the defendant had a close 
 causal connection with the hurt done to the plaintiff, and such hurt was 
 the natural and almost direct product of such cause. Such harmful 
 result was sure to follow, in the usual course of things, from the speci- 
 fied malfeasance. The defendant is conclusively chargeable with the 
 knowledge of this injurious effect of his conduct, for such effect was 
 almost certain to follow from such conduct, without the occurrence of 
 any extraordinary event, or the help of any extraneous cause. The 
 act had a twofold injurious aspect : it was calculated to injure both 
 Van Riper and the plaintiff; and as each was directly damnified, I can 
 perceive no reason why each could not repair his losses by an action. 
 
 The facts here involved do not, with respect to their legal signi- 
 ficance, resemble the juncture that gave rise to the doctrine established 
 in the case of Vicars v. Wilcocks. 1 In that instance the action was for 
 a slander that required the existence of special damage as one of its 
 necessary constituents, and it was decided that such constituent was 
 not shown by proof of the fact that as a result of the defamation the 
 plaintiff had been discharged from his service by his employer before 
 the end of the term for which he had contracted. The ground of this 
 decision was that this discharge of the plaintiff from his employment 
 was illegal, and was the act of a third party, for which the defendant 
 
 1 8 East, 1. 
 
76 
 
 hughes v. McDonough. 
 
 [chap. i. 
 
 was not responsible, and that, as the wrong of the slander became 
 detrimental only by reason of an independent wrongful act of another, 
 the injury was to be imputed to the last wrong, and not to that which 
 was farther distant one remove. In his elucidation of the law in this 
 case, Lord Ellenborough says, alluding to the discharge of the plaintiff 
 from his employment, that it “ was a mere wrongful act of the master, 
 for which the defendant was no more answerable, than if, in con- 
 sequence of the words, other persons had afterwards assembled and 
 seized the plaintiff and thrown him into a horse-pond by way of punish- 
 ment for his supposed transgression.” The class of cases to which this 
 authority belongs, rests upon the principle that a man is responsible 
 only for the natural consequences of his own misdeeds, and that he is 
 not answerable for detriments that ensue from the misdeeds of others. 
 But this doctrine, it is to be remembered, does not exclude responsibility 
 when the damage results to the party injured through the intervention 
 of the legal and innocent acts of third parties ; for, in such instances, 
 damage is regarded as occasioned by the wrongful cause, and not at 
 all by those which are not wrongful. Where the effect was reasonably 
 to have been foreseen, and where, in the usual course of events, it was 
 likely to follow from the cause, the person putting such cause in motion 
 will be responsible, even though there may have been many concurring 
 events or agencies between such cause and its consequences. This 
 principle is stated, and is illustrated by a reference to a multitude of 
 decisions in Cooley on Torts, 70, et seq. . . . 
 
 The principles thus propounded must have a controlling effect in the 
 decision of the question now before this court, as the}- decisive^ show 
 that the damage of which the plaintiff complained was not, in a legal 
 sense, remote from the wrongful act. What, in point of substance, was 
 done by the defendant, was this : he defamed, by the medium of a 
 fraudulent device, the plaintiff in his trade, and by means of which 
 defamation, the latter sustained special detriment. If this defamation 
 had been accomplished by word spoken or written, or by signs or pic- 
 tures, it is plain the wrong could have been remedied, in the usual 
 form, by an action on the case for the slander ; and, plainly, no reason 
 exists why the law should not afford a similar redress when the same 
 injury has been inflicted by disreputable craft. It is admitted upon the 
 record that the plaintiff has sustained a loss by the fraudulent mis- 
 conduct of the defendant ; that such loss was not only likely, in the 
 natural order of events, to proceed from such misconduct, but that 
 it was the design of the defendant to produce such result by his act. 
 Under such circumstances it would be strange indeed if the party thus 
 wronged could not obtain indemnification by an appeal to the judicial 
 tribunals. 
 
 UnfAir Competition by Fraud. — Howe v. McKernan , 30 Beav. 547; Chapleau v. 
 La Porte , 16 Rap. Que. 189; Lawrence Co. v. Tenn. Co., 138 U. S. 537; Evans v. Von 
 Laer, 32 Fed. 153; Jewell v. Bigelow, 66111. 452; Marsh v. Billings , 7 Cush. 322; Rice v. 
 Manley , 66 N. Y. 82. And add lists following. 
 
JONES V. LITTLER. 
 
 77 
 
 SECT II. 
 
 ( b ) DISPARAGEMENT. 
 
 (a) OF PERSON. 
 
 JONES v. LITTLER. 
 
 In the Exchequer, January 16, 1841. 
 
 [ Reported in 7 Meeson Welsby , 423.] 
 
 Slander. The declaration stated that the plaintiff was a brewer, 
 and that the defendant falsely and maliciously spoke and published of 
 and concerning him in the way of his trade as a brewer the false, 
 scandalous, malicious, and defamatory words following: “I’ll” 
 (meaning that he, the defendant, would) “ bet £5 to £1, that Mr. 
 Jones” (meaning the plaintiff) “was in a sponging-house for debt 
 within the last fortnight, and I can produce the man who locked him 
 up ; the man told me so himself.” Whereupon the said Henry Pye 
 then asked the defendant, “Do you mean to say that Mr. Jones, 
 brewer, of Rose Hill” (meaning and describing the plaintiff), “has 
 been in a sponging-house within this last fortnight for debt?” and 
 thereupon the defendant then replied to the said Henry Pye, and the 
 said other persons then present, “ Yes, I do.” 
 
 The jury having returned a verdict for the plaintiff, the court 
 granted a rule to show cause why there should not be a new trial, on 
 a suggestion that the learned judge ought to have left it as a question 
 to the jury whether the words were spoken of the plaintiff in the way 
 of his trade, and did not. 
 
 Parke, B. It is quite clear that this rule ought to be discharged, 
 for the only ground on which it was granted has failed, inasmuch as 
 the learned judge did leave the question to the jury, whether the 
 words were spoken of the plaintiff in his trade ; and, indeed, it is 
 plain that the words were so used, from the fact that in the conver- 
 sation in question the plaintiff was spoken of as a brewer. Indepen- 
 dently of that, however, and even if they were spoken of him in his 
 private character, I think the case of Stanton v. Smith 1 is an authority 
 to show that the words would have been actionable, because they 
 must necessarily affect him in his trade. It is there said, “We were 
 
 1 2 Ld. Raym. 1480. 
 
73 
 
 SECOR V. HARRIS. 
 
 [chap. I. 
 
 all of opinion that such words spoken of a tradesman must greatly 
 lessen the credit of a tradesman, and be very prejudicial to him, and 
 therefore that they were actionable.” That case is distinguishable 
 from Ayre v. Craven and Doyley v. Roberts . 1 In the latter of those 
 cases the words were not spoken of the plaintiff in his business of 
 an attorney ; and in the former it did not appear in what manner the 
 immorality was connected with the plaintiff’s profession of a physi- 
 cian ; and it was possible that such imputations of incorrect conduct, 
 out of the line of their respective professions, might not injure their 
 professional characters. But this case is distinguishable, because 
 here the imputation is that of insolvency, which must be injurious ; 
 for if a tradesman be incapable of paying all his debts, whether in or 
 out of trade, his credit as a tradesman, which depends on his general 
 solvency, must be injured. The case of Stanton v. Smith, as it 
 appears to me, is good law, notwithstanding tlie observations of 
 Coltman, J., in Doyley v. Roberts. 
 
 Alderson and Rolfe, BB., concurred. Buie discharged . 2 
 
 SECOR v. HARRIS. 
 
 Supreme Court, New York, September, 1854 . 
 
 [ Reported in 18 Barbour , 425.] 
 
 Motion by the plaintiff for a new trial, upon a bill of exceptions. 
 
 F. U. Fenno , for the plaintiff. W. B. Hawes, for the defendant. 
 
 Mason, J. This is an action for slander. Upon the trial of the 
 cause the plaintiff proved the following words, which were also alleged 
 in the complaint : “ Doctor Secor killed my children.” “ He gave 
 them teaspoonful doses of calomel, and they died.” “ Dr. Secor 
 gave them teaspoonful doses of calomel, and it killed them ; they did 
 not live long after they took it. They died right off, — the same 
 day.” The plaintiff was proved to be a practising physician, and the 
 evidence shows that he had practised in the defendant’s family, and 
 had prescribed for the defendant’s children, and that the words were 
 spoken of him in his character of a physician. The plaintiff claimed 
 that the words were actionable, and that he was entitled to have this 
 branch of the case, upon the words, submitted to the jury. The 
 judge at the circuit held that the words were not actionable, and 
 
SECT. II.] 
 
 SECOR V. HARRIS. 
 
 79 
 
 took them from the consideration of the jury. These words, spoken 
 of the plaintiff as a physician, are actionable per whatever may 
 be said upon the question, whether they impute a criminal offence. 
 They do not impute a criminal offence, unless there is evidence, aris- 
 ing from the quantity of the calomel which the defendant alleged that 
 the plaintiff gave these children, from which a jury would be justified 
 in finding an intention to kill them. One of them was three years of 
 age, and the other one year and a half. If the natural result, which 
 should reasonably be expected from feeding children of such tender 
 years full teaspoon doses of calomel, would be certain death, then it 
 is not a forced construction of the words to say that the defendant 
 intended to charge the plaintiff with an intention to kill these children, 
 in giving them such doses. It is not necessary, however, to say that 
 the judge should have submitted this case to the jury upon the ques- 
 tion, whether the defendant did not intend to impute to the plaintiff, 
 by these words, a criminal offence. I am quite inclined to think, 
 however, that had the judge submitted the case to the jury upon the 
 imputation of a criminal intent in these words, and had the jury found 
 that such intent was imputed, we should not be justified in setting 
 aside their verdict. It is not necessary, however, to place the case 
 upon this ground ; for it is certainly slanderous to say of a physician 
 that he killed these children of such tender years, by giving them 
 teaspoonful doses of calomel. The charge, to say the least, imports 
 such a total ignorance of his profession as to destroy all confidence 
 in the physician. It is a disgrace to a physician to have it believed 
 that he is so ignorant of this most familiar and common medicine, as 
 to give such quantities thereof to such young children. The law is 
 well settled that words published of a physician, falsely imputing to 
 him general ignorance or want of skill in his profession, are actionable, 
 in themselves, on the ground of presumed damage. Starkie on Slan- 
 der, 100, 110, 115, 10, 12; Martyn v. Burlings ; 1 Bacon’s Abr. title 
 Slander, B; Watson v. Van Derlash; 2 Tutler v. Alwin ; 3 Smith v> 
 Taylor ; 4 Sumner v. Utley. 5 I am aware that it was held, in the 
 case of Poe v. Mondford, 6 that it is not actionable to say of a physi- 
 cian, “He hath killed a patient with physic;” and that, upon the 
 strength of the authority of that case, it was decided in this court in 
 Foot v. Brown, 7 that it was not actionable to say of an attorney or 
 counsellor, when speaking of a particular suit, “ He knows nothing 
 about the suit ; he will lead you on until he has undone you.” These 
 cases are not sound. The case of Poe v. Mondford is repudiated in 
 Bacon’s Abr. as authority, and cases are referred to as holding a 
 contrary doctrine (vol. ix. pages 49, 50). The cases of Poe v. Mond- 
 ford, and of Foot v. Brown, were reviewed by the Supreme Court of 
 Connecticut, in the case of Sumner v. Utley, 8 with most distinguished 
 
 i Cro. Eliz. 589. 2 H etl. 69. 8 11 Mod. R. 221. 
 
 4 1 New R. 196. 5 7 Conn. R. 257. 8 Cro. El. 620. , 
 
 7 8 Johns. 64. 8 7 Conn. R. 257. 
 
80 
 
 SECOR V. HARRIS. 
 
 [CHAP. I. 
 
 ability, and tne doctrine of those cases repudiated. In the latter 
 case it is distinctly held, that words are actionable in themselves, 
 which charge a physician with ignorance or want of skill in his treat- 
 ment of a particular patient, if the charge be such as imports gross 
 ignorance or unskilfulness. To the same effect is the case of John- 
 son v. Robertson, 1 where it was held that the following words spoken 
 of a physician in regard to his treatment of a particular case, “ He 
 killed the child by giving it too much calomel,” are actionable in 
 themselves ; and such is the case of Tutler v. Alwin, 2 * where it was 
 held to be actionable to say of an apothecary, that “he killed a pa- 
 tient with physic.” See also 3 Wilson’s R. 186 ; Bacon’s Abr. title 
 Slander, letter B, 2, vol. ix. page 49 (Bouv. ed.). The cases of Poe 
 v. Mondford and Foot v. Brown have been repudiated by the highest 
 judicial tribunal in two of the American States, while the case of Poe v. 
 Mondford seems to have been repudiated in England ; and I agree with 
 Clinch, J., that the reason upon which that case is decided is not ap- 
 parent. I do not go the length to say that falsehood may not be spoken 
 of a physician’s practice, in a particular case, without subjecting the 
 party to this action. A physician may mistake the symptoms of a pa- 
 tient, or may misjudge as to the nature of his disease, and even as to the 
 powers of medicine, and yet his error may be of that pardonable kind 
 that will do him no essential prejudice, because it is rather a proof of 
 human imperfection than of culpable ignorance or unskilfulness ; and 
 where charges are made against a physician that fall within this class 
 of cases, they are not actionable, without proof of special damages. 8 
 7 Conn. R. 257. It is equally true, that a single act of a physician 
 may evince gross ignorance, and such a total want of skill, as will 
 not fail to injure his reputation, and deprive him of general confi- 
 dence. When such a charge is made against a physician, the words 
 are actionable per se. 7 Conn. R. 257. The rule may be laid down 
 as a general one that, when the charge implies gross ignorance and 
 unskilfulness in his profession, the words are actionable per se. This 
 is upon the ground that the law presumes damage to result, from the 
 very nature of the charge. The law in such a case lays aside its 
 usual strictness ; for when the presumption of damage is violent, and 
 the difficulty of proving it is considerable, the law supplies the de- 
 fect, and, by converting presumption into proof, secures the charac- 
 ter of the sufferer from the misery of delay, and enables him at once 
 to face the calumny in open court. Starkie on Slander, 581. It 
 was well said by the learned Chief Justice Hosmer, in Sumner v. 
 Utley, 4 that, “ As a general principle, it can never be admitted that 
 the practice of a physician or surgeon in a particular case may be 
 calumniated with impunity, unless special damage is shown. By con- 
 
 1 8 Porter’s R,. 486. 2 11 Mod. R. 221. 
 
 8 Sumner v. Utley, 7 Conn. 257 ; Garr v. Selden, 6 Barb. 416; Rodgers v. Kline, 56 
 
 Miss. 808 ; Lvnde v. Johnson, 39 Hun, 5 Accord. — Ed. 
 
 4 7 Conn. 257. 
 
SECT. II.] 
 
 SECOR V. HARRIS. 
 
 81 
 
 fining the slander to particulars, a man may thus be ruined in detail. 
 A calumniator might follow the track of the plaintiff, and begin by 
 falsely ascribing to a physician the killing of three persons by mis- 
 management, and then, the mistaking of an artery for a vein, and 
 thus might proceed to misrepresent every single case of his practice, 
 until his reputation should be blasted beyond remedy. Instead of 
 murdering character by one stroke, the victim would be cut succes- 
 sively in pieces, and the only difference would consist in the manner 
 of effecting the same result.” It is true, as was said by the 
 learned Chief Justice Hosmer in that case, the redress proposed, on 
 the proof of special damage, is inadequate to such a case. Much 
 time may elapse before the fact of damage admits of any evidence ; 
 and then the proof will always fall short of the mischief. In the 
 mean time the reputation of the calumniated person languishes and 
 dies ; and hence, as we have before said, the presumption of damage 
 being violent, and the difficulty of proving it considerable, the law 
 supplies the defect by converting presumption of damage into proof : 
 Starkie on Slander, 581 ; in other words, the law presumes that dam- 
 ages result from the speaking of the words. In the case under 
 consideration, the words proved impute to the plaintiff such gross 
 ignorance of his profession, if nothing more, as would be calculated 
 to destroy his character wherever the charge should be credited. 
 It would be calculated to make all men speak out and say, as did 
 the witness Richard Morris, “ that it was outrageous, and the plain- 
 tiff ought not to be permitted to practise.” The law will therefore 
 presume damages to result from the speaking of the words, and 
 consequently hold the words actionable in themselves. The judge at 
 the circuit erred in taking this branch of the case from the considera- 
 tion of the jury, and a new trial must be granted ; costs to abide the 
 event of the action. 
 
 Crippen, J., concurred. Shankland, J., dissented. 
 
 New trial granted. 
 
82 
 
 HAMON V. FALLE. 
 
 [CHAP. I. 
 
 CHARLES HAMON v. JOSUE JOSUE GEORGE FALLE. 
 
 In the Privy Council, February 7, 8, 1879. 
 
 f Reported in 4 Appeal Cases , 247.] 
 
 Appeal from a judgment of the Roval Court of the Island of Jersey 
 (July 23, 1877). 
 
 The judgment of their Lordships was delivered by 
 Sir James W. Col vile : 1 — 
 
 The plaintiff in this case is a master mariner holding a certificate 
 from the Board of Trade. The defendant was, when the action was 
 brought, the president of the Jersey Mutual Insurance Society for 
 Shipping, and is sued as the representative of that society. The soci- 
 ety is, as its name imports, a mutual insurance society for shipping, and 
 is governed by the rules which were put in as part of the evidence be- 
 fore the court below, and are now before their Lordships. Some of those 
 rules will have to be more particularly considered hereafter, but it is 
 sufficient at present to state that the general course of business of the 
 society seems to be that the different shipowners who become members 
 of it underwrite each other’s vessels in a certain proportion, and that the 
 insurances effected are in the nature of time policies for one year. 
 
 The action is a peculiar one. The effect of the pleading in the nature 
 of a declaration is as follows : — that the plaintiff holding the position 
 which has been already mentioned, and having been employed as mas- 
 ter of certain specified vessels, and in particular of the Dora, which 
 then belonged to the late M. Felix Briard, his services were retained 
 by M. James Sebire, the proprietor of the ship Utysses ; that he 
 was getting ready to take the command of that vessel when he found 
 that the insurance society had intimated to M. Sebire that if the 
 plaintiff were to take command of her, the society would refuse to con- 
 tinue to insure her ; that he then took certain steps in order to induce 
 the society to reconsider their resolution, or to give him an opportunity 
 of refuting the reasons they might have for it, but in vain ; that by 
 reason of this proceeding on the part of the societ}’ he had lost his 
 employment, and that this arbitrary and vexatious conduct on the part 
 of the society caused him considerable damage in depriving him of his 
 employment, and consequently of the means of providing for and main- 
 taining his famity. And he prayed that the conduct of the society 
 might be declared illegal, arbitrary, and vexatious, and that the} 7 might 
 pay the damages claimed to the amount of £500. 
 
 In the first instance, the society took the proceeding which is set out 
 in the record, which is partly in the nature of a demurrer ; but also sets 
 forth the resolutions of the committee under which the telegrams which 
 had passed between them and M. Sebire were sent, and which were in 
 fact the cause of the plaintiff’s non-engagement as master of the vessel. 
 
 1 The opinion of the court is somewhat abridged. — Ed. 
 
SECT. II.] 
 
 HAMON V. FALLE. 
 
 83 
 
 The effect of this pleading was to submit that there was no ground of 
 action. The court, however, considering that the course adopted by 
 the society had caused considerable damage to M. Hamon in prevent- 
 ing him from following his profession as a master mariner ; that the 
 resolutions of the committee produced by the defendant contained no 
 motif ox reason to justify the proceeding which the committee had thought 
 fit to adopt ; and that such a proceeding, if adopted — “ sans cause ou 
 raison valable” — without cause or valid reason, would be an arbitrary 
 and vexatious act, that would give a right of action to the person 
 who was subject to it ; decided that the society ought to suffer the con- 
 sequences of its act, unless it furnished sufficient grounds or motives 
 to justify its conduct. Leave was given to appeal to the full court, the 
 court of greater number ; but the defendants have never availed them- 
 selves of that permission. Mr. Benjamin has, in argument, fairly ad- 
 mitted that the declaration must be taken to disclose a prima facie 
 cause of action ; and that the only question is whether the plea or pre- 
 tention which the defendants filed under the last-mentioned order has 
 been proved, and if proved constitutes a valid defence. 
 
 That pretention is to be found in the record. In substance it pleads 
 that the committee of administration only took the course they did in 
 consequence of the information which they had received from sources 
 respectable in themselves and worthy of belief, and which in the opinion 
 of the committee established that M. Hamon, when in command of the 
 ship Dora, belonging to Messrs. Felix Briard & Co., had been guilty of 
 and had given way to intemperance, and had 'conducted himself in such 
 a way as not to deserve the confidence of its owners, who had dismissed 
 him from their service ; that in those circumstances, the committee not 
 being able to have confidence in M. Hamon, and thinking that an in- 
 surance was a purely voluntary act on their part, had decided not to 
 expose the society to the risk of becoming responsible for the fate of a 
 ship which would be placed under the command of a man whom they 
 had reason to believe was addicted to a vice criminal in any case, but 
 still more so in the case of a man holding the position of master of a 
 vessel ; that having taken that determination, the committee confined 
 themselves to communicating to M. Sebire, without letting him know 
 in terms the information which they had received on the subject of 
 M. Hamon, whom, so long as the}' could protect the interests of the 
 society, they had no desire to injure. It further states that in support 
 of their pretention the defendants produced the letter from M. Briard, 
 which is to be found in the evidence, and which they say was brought 
 by M. Hamon to the office of the society only a few days before the 
 date of the correspondence between M. Sebire and the committee, and 
 they contend that that letter alone justifies fully the conduct of the 
 society against Hamon, and that it was of a kind and of a nature to 
 inspire doubt with reference to him and distrust of him, and that they 
 cannot be bound to furnish legal proof of the conduct of Hamon whilst 
 he had the command of the vessel Dora , but that it sufficed that they 
 
84 RATCLIFFE V. EVANS. [CHAP. II. 
 
 should have reasonable grounds for refusing to place their interest at 
 the risk of the conduct or acts of Hamon. 
 
 The effect of the defence thus pleaded is clearly that the defendants 
 acted in good faith and without any malice towards the plaintiff, with- 
 out an}^ desire to injure him, and in the honest belief that the informa- 
 tion they had received was sufficient to justify the course which they 
 took. Their Lordships are of opinion that such a defence, if proved, is 
 a sufficient answer to the prima facie cause of action disclosed by the 
 declaration. The finding of the court that the act of the defendants 
 would be arbitrary and vexatious', and that the defendants would be 
 liable for damages unless they could show sufficient motives to justify 
 what they did, points to that conclusion. Their Lordships further 
 think that if the case is to be likened (as in the argument it has been) 
 to an action for defamation it would fall within the rule thus laid down 
 by Mr. Baron Parke in the case of Toogood v. Spyring : “In general 
 an action lies for the malicious publication of statements which are 
 false in fact, and injurious to the character of another (within the well- 
 known limits as to verbal slander) , and the law considers such publica- 
 tion as malicious unless it is fairly made by a person in the discharge 
 of some public or private duty, whether legal or moral, or in the con- 
 duct of his own affairs in matters where his interest is concerned.” In 
 the present case their Lordships think that the representation made by 
 the society to Sebire was clearly one made in the conduct of its own 
 affairs, and in matters in which their own interest was concerned. 
 
 The plaintiff having been admitted to appeal in forma pauperis , 
 there will of course be no order as to costs. 
 
 RATCLIFFE v. EVANS. 
 
 In the Court of Appeal, May 26, 1892. 
 
 [ Reported in Law Reports ( 1892 ), 2 Queen's Bench, 524 .] 
 
 Motion to enter judgment for the defendant, or for a new trial, 
 by way of appeal from the judgment entered by Mr. Commissioner 
 Bompas, Q. C., in an action tried with a jury at the Chester Summer 
 Assizes, 1891. 
 
 The statement of claim in the action alleged that the plaintiff had 
 for many years carried on the business, at Hawarden in the county of 
 Flint, of an engineer and boiler-maker under the name of “ Ratcliffe & 
 Sons,” having become entitled to the good-will of the business upon the 
 death of his father, who, with others, had formerly carried on the busi- 
 ness as “ Ratcliffe & Sons ; ” that the defendant was the registered pro- 
 prietor, publisher, and printer of a weekly newspaper called the “ County 
 Herald,” circulated in Flintshire and some of the adjoining counties, 
 
SECT. II.] 
 
 RATCLIFFE V. EVANS. 
 
 85 
 
 and that the plaintiff had suffered damage by the defendant falsely and 
 maliciously publishing and printing of the plaintiff in relation to his 
 business, in the “County Herald,” certain words set forth which im- 
 ported that the plaintiff had ceased to cany on his business of engineer 
 and boiler-maker, and that the firm of Ratcliffe & Sons did not then 
 exist. 
 
 At the trial the learned commissioner allowed the statement of claim 
 to be amended b} 7 adding that “ by reason of the premises the plaintiff 
 was injured in his credit and reputation, and in his said business of an 
 engineer and boiler-maker, and he thereb} 7 lost profits which he other- 
 wise would have made in his said business.” The plaintiff proved the 
 publication of the statements complained of, and that the} 7 were untrue. 
 He also proved a general loss of business since the publication ; but 
 he gave no specific evidence of the loss of any particular customers or 
 orders by reason of such publication. In answer to questions left to 
 them by the commissioner, the jury found that the words did not reflect 
 upon the plaintiff’s character, and were not libellous ; that the state- 
 ment that the firm of Ratcliffe & Sons was extinct was not published 
 bona fide ; and that the plaintiffs business suffered injury to the extent 
 of £120 from the publication of that statement. The commissioner, 
 upon those findings, gave judgment for the plaintiff, for £120, with 
 costs. 
 
 The defendant appealed. 
 
 Bowen Rowlands , Q. C., and E. H. Lloyd , for the appellant. 
 
 F. Marshall , for the respondent. 1 Cur . adv. vult. 
 
 The following judgment of the court (Lord Esher, M. R., Bowen, 
 and Fry, L. JJ.), was read by 
 
 Bowen, L. J. This was a case in which an action for a false and 
 malicious publication about the trade and manufactures of the plaintiff 
 was tried at the Chester assizes, with the result of a verdict for the 
 plaintiff for £120. Judgment having been entered for the plaintiff for 
 that sum and costs, the defendant appealed to this court for a new trial, 
 or to enter a verdict for the defendant, on the ground, amongst others, 
 that no special damage, such as was necessary to support the action, 
 was proved at the trial. The injurious statement complained of was a 
 publication in the “ County Herald,” a Welsh newspaper. It was treated 
 in the pleadings as a defamatory statement or libel ; but this suggestion 
 was negatived, and the verdict of the jury proceeded upon the view 
 that the writing was a false statement purposely made about the manu- 
 factures of the plaintiff, which was intended to, and did in fact, cause 
 him damage. The only proof at the trial of such damage consisted, 
 however, of evidence of general loss of business without specific proof of 
 the loss of any particular customers or orders, and the question we have 
 to determine is, whether in such an action such general evidence of dam- 
 
 1 The arguments of counsel are omitted. — Ed. 
 
86 
 
 RATCLIFFE V. EVANS. 
 
 [CHAP. I. 
 
 age was admissible and sufficient. That an action will lie for written 
 or oral falsehoods, not actionable per se nor even defamatory, where 
 they are maliciously published, where they are calculated in the ordinary 
 course of things to produce, and where they do produce, actual dam- 
 age, is established law. Such an action is not one of libel or of slander, 
 but an action on the case for damage wilfully and intentionally done 
 without just occasion or excuse, analogous to an action for slander of 
 title. To support it actual damage must be shown, for it is an action 
 which only lies in respect of such damage as has actually occurred. It 
 was contended before us that in such an action it is not enough to allege 
 and prove general loss of business arising from the publication, since 
 such general loss is general and not special damage, and special dam- 
 age, as often has been said, is the gist of such an action on the case. 
 Lest we should be led astray in such a matter by mere words, it is 
 desirable to recollect that the term ‘ * special damage,” which is found 
 for centuries in the books, is not always used with reference to similar 
 subject-matter, nor in the same context. At times (both in the law of 
 tort and of contract) it is employed to denote that damage arising out 
 of the special circumstances of the case which, if properly pleaded, may 
 be superadded to the general damage which the law implies in every 
 breach of contract and every infringement of an absolute right : see 
 Ashby v. White . 1 In all such cases the law presumes that some dam- 
 age will flow in the ordinary course of things from the mere invasion 
 of the plaintiff’s rights, and calls it general damage. Special damage 
 in such a context means the particular damage (beyond the general 
 damage), which results from the particular circumstances of the case, 
 and of the plaintiff’s claim to be compensated, for which he ought to 
 give warning in his pleadings in order that there may be no surprise 
 at the trial. But where no actual and positive right (apart from the. 
 damage done) has been disturbed, it is the damage done that is the 
 wrong; and the expression “special damage,” when used of this dam- 
 age, denotes the actual and temporal loss which has, in fact, occurred. 
 Such damage is called variously in old authorities, “express loss,” 
 “ particular damage : ” Cane v. Golding ; 2 “ damage in fact,” “ special 
 or particular cause of loss : ” Law v. Harwood , 3 Tasburgh v. Da } 7 . 4 
 
 The term “ special damage ” has also been used in actions on the 
 case brought for a public nuisance, such as the obstruction of a river 
 or a highway, to denote that actual and particular loss which the plain- 
 tiff must allege and prove that he has sustained beyond what is sus- 
 tained by the general public, if his action is to be supported, such 
 particular loss being, as is obvious, the cause of action : see Iveson 
 v. Moore , 6 Rose v. Groves . 6 In this judgment we shall endeavor to 
 avoid a term which, intelligible enough in particular contexts, tends, 
 
 1 2 Ld. Raym. 938; 1 Sin. L. C. 9th ed. p. 268, per Holt, C. J. 
 
 2 Sty. 169. 8 Cro. Car. 140. 
 
 4 Cro. Jac. 484. 6 1 Ld. Raym. 486. 
 
 6 5 M. & G. 613. 
 
SECT. II.] 
 
 RATCLIFFE V. EVANS. 
 
 87 
 
 when successively employed in more than one context and with regard 
 to different subject-matter, to encourage confusion in thought. The 
 question to be decided does not depend on words, but is one of sub- 
 stance. In an action like the present, brought for a malicious falsehood 
 intentionally published in a newspaper about the plaintiff’s business — 
 a falsehood which is not actionable as a personal libel, and which is not 
 defamatory in itself — is evidence to show that a general loss of busi- 
 ness has been the direct and natural result admissible in evidence, 
 and, if uncontradicted, sufficient to maintain the action? In the case 
 of a personal libel, such general loss of custom may unquestionably be 
 alleged and proved. Every libel is of itself a wrong in regard of which 
 the law, as we have seen, implies general damage. By the very fact 
 that he has committed such a wrong, the defendant is prepared for the 
 proof that some general damage may have been done. As is said by 
 Gould, J., in Iveson v. Moore , 1 in actions against a wrong-doer a more 
 general mode of declaring is allowed. If, indeed, over and above this 
 general damage, further particular damage is under the circumstances 
 to be relied on by the plaintiff, such particular damage must of 
 course be alleged and shown. But a loss of general custom, flowing 
 directly and in the ordinary course of things from a libel, may be 
 alleged and proved generally. “It is not special damage” — says 
 Pollock, C. B., in Harrison v. Pearce , 2 — “ it is general damage result- 
 ing from the kind of injury the plaintiff has sustained.” So in Bluck 
 v. Lovering , 3 under a general allegation of loss of credit in business, 
 general evidence was received of a decline of business presumabl} r due 
 to the publication of the libel, while loss of particular customers, not 
 having been pleaded, was held rightly to have been rejected at the 
 trial : see also Ingram v. Lawson . 4 Akin to, though distinguishable 
 in a respect which will be mentioned from, actions of libel are those 
 actions which are brought for oral slander, where such slander consists 
 of words actionable in themselves and the mere use of which constitutes 
 the infringement of the plaintiff’s right. The very speaking of such 
 words, apart from all damage, constitutes a wrong and gives rise to a 
 cause of action. The law in such a case, as in the case of libel, pre- 
 sumes, and in theory allows, proof of general damage. But slander, even 
 if actionable in itself, is regarded as differing from libel in a point which 
 renders proof of general damage in slander cases difficult to be made 
 good. A person who publishes defamatory matter on paper or in print 
 puts in circulation that which is more permanent and more easily trans- 
 missible than oral slander. Verbal defamatory statements may, indeed, 
 be intended to be repeated, or may be uttered under such circumstances 
 that their repetition follows in the ordinary course of things from their 
 original utterance. Except in such cases, the law does not allow the 
 plaintiff to recover damages which flow, not from the original slander, 
 
 1 1 Ld. Raym. 486. 
 
 8 1 Times L. R. 497. 
 
 2 32 L. T. (0. S.) 298. 
 4 6 Bing. N. C. 212. 
 
88 
 
 RATCLIFFE V. EVANS. 
 
 [CHAP. I. 
 
 but from its unauthorized repetition : Ward v. Weeks , 1 Holwood v. Hop- 
 kins , 2 Dixon v. Smith . 3 General loss of custom cannot properly be 
 proved in respect of a slander of this kind when it has been uttered 
 under such circumstances that its repetition does not flow directly and 
 naturally from the circumstances under which the slander itself was 
 uttered. The doctrine that in slanders actionable per se general damage 
 may be alleged and proved with generality must be taken, therefore, 
 with the qualification that the words complained of must have been 
 spoken under circumstances which might in the ordinary course of things 
 have directly produced the general damage that has in fact occurred. 
 Evans v. Harries 4 was a slander uttered in such a manner. It consisted 
 of words reflecting on an inn-keeper in the conduct of his business 
 spoken openly in the presence of divers persons, guests and customers 
 of the inn — a floating and transitory class. The court held that gen- 
 eral evidence of the decline of business was rightly receivable. “ How,” 
 asked Martin, B., “ is a public-house keeper, whose only customers are 
 persons passing by, to show a damage resulting from the slander, unless 
 he is allowed to give general evidence of a loss of custom?” Mac- 
 loughlin v. Welsh 5 was an instance of excommunication in open church. 
 General proof was held to be rightly admitted that the plaintiff was 
 shunned and his mill abandoned, though no loss of particular customers 
 was shown. Here the very nature of the slander rendered it necessary 
 that such general proof should be allowed. The defamatory words were 
 spoken openly and publicly, and were intended to have the exact effect 
 which was produced. Unless such general evidence was admissible, the 
 injur}' done could not be proved at all. If, in addition to this general 
 loss, the loss of particular customers was to be relied on, such particular 
 losses would, in accordance with the ordinary rules of pleading, have 
 been required to be mentioned in the statement of claim : see Ashley 
 v. Harrison . 6 From libels and slanders actionable per se , we pass to 
 the case of slanders not actionable per se, where actual damage done is 
 the very gist of the action. Man}’’ old authorities may be cited for the 
 proposition that in such a case the actual loss must be proved specially 
 and with certainty : Law v. Harwood . 7 Many such instances are col- 
 lected in the judgments in Iveson v. Moore , 8 where, although there was 
 a difference as to whether the general rule had been fulfilled in that 
 particular kind of action on the case, no doubt was thrown on the prin- 
 ciple itself. As was there said — in that language of old pleaders which 
 has seen its day, but which connoted more accuracy of legal thought 
 than is produced by modern statements of claim — “damages in the 
 ‘ per quod,’ where the ‘ per quod’ is the gist of the action, should be 
 shown certainly and specially.” But such a doctrine as this was alwa} T s 
 subject to the qualification of good sense and of justice. Cases may 
 
 1 7 Bing. 211. 
 
 8 5 H. & N. 450. 
 
 5 10 Ir. L. Rep. 19. 
 
 7 Cro. Car. 140. 
 
 2 Cro. Eliz. 787. 
 
 4 1 H. & N. 251. 
 
 8 1 Esp. 50. 
 
 8 1 Ld. Raym. 486. 
 
SECT. II.] 
 
 RATCLIFFE V. EVANS. 
 
 89 
 
 here, as before, occur where a general loss of custom is the natural and 
 direct result of the slander, and where it is not possible to specify par- 
 ticular instances of the loss. Hartley v. Herring 1 is probably a case of 
 the kind, although it does not appear from the report under what cir- 
 cumstances, or in the presence of whom, the slanderous words were 
 uttered. But if the words are uttered to an individual, and repetition 
 is not intended except to a limited extent, general loss of custom can- 
 not be ordinarily a direct and natural result of the limited slander: 
 Dixon v. Smith, 2 Hopwood v. Thorn. 3 The broad doctrine is stated in 
 Buller’s Nisi Prius, p. 7, that where words are not actionable, and the 
 special damage is the gist of the action, saying generally that several 
 persons left the plaintiff’s house is not laying the special damage. 
 Slanders of title, written or oral, and actions such as the present, 
 brought for damage done by falsehoods, written or oral, about a man’s 
 goods or business, are similar in many respects to the last-mentioned 
 class of slanders not actionable in themselves. Damage is the gist of 
 both actions alike, and it makes no difference in this respect whether 
 the falsehood is oral or in writing : Malachy v. Soper. The necessity 
 of alleging and proving actual temporal loss with certainty and pre- 
 cision in all cases of the sort has been insisted upon for centuries : 
 Lowe v. Harewood, 4 Cane v. Golding, 5 Tasburgh v. Day, 6 Evans v. 
 Harlow. 7 But it is an ancient and established rule of pleading that 
 the question of generality of pleading must depend on the general 
 subject-matter : Janson v. Stuart, 8 Lord Arlington v. Merricke, 9 Grey 
 v. Friar, 10 Westwood v. Cowne, 11 Iveson v. Moore. 12 In all actions 
 accordingly on the case where the damage actualty done is the gist 
 of the action, the character of the acts themselves which produce the 
 damage, and the circumstances under which these acts are done, must 
 regulate the degree of certainty and particularity with which the dam- 
 age done ought to be stated and proved. As much certainty and par- 
 ticularity must be insisted on, both in pleading and proof of damage, 
 as is reasonable, having regard to the circumstances and to the nature 
 of the acts themselves by which the damage is done. To insist upon 
 less would be to relax old and intelligible principles. To insist upon 
 more would be the vainest pedantry. The rule to be laid down with 
 regard to malicious falsehoods affecting property or trade is only an 
 instance of the doctrines of good sense applicable to all that branch of 
 actions on the case to which the class under discussion belongs. The 
 nature and circumstances of the publication of the falsehood may 
 accordingly require the admission of evidence of general loss of busi- 
 ness as the natural and direct result produced, and perhaps intended to 
 
 1 8 T. R. 130. 
 
 * 19 L. J. (C. P.) 95. 
 
 6 Sty. 176. 
 
 7 5 Q. B. 624. 
 
 9 2 Saund. 412, n. 4. 
 
 u 1 Stark. 172. 
 
 2 5 H. & N. 450. 
 
 4 W. Jones, 196. 
 
 6 Cro. Jac. 484. 
 
 8 1 T. R. 754. 
 
 15 Q. B. 907; see Co. Litt. 303 d. 
 
 12 1 Ld. Raym. 486. 
 
90 
 
 DUDLEY V . BRIGGS. 
 
 [CHAP. I. 
 
 be produced. An instructive illustration, and one by which the pres- 
 ent appeal is really covered, is furnished by the case of Hargrave v . 
 Le Breton , 1 decided a century and a half ago. It was an example of 
 slander of title at an auction. The allegation in the declaration was 
 that divers persons who would have purchased at the auction left the 
 place ; but no particular persons were named. The objection that they 
 were not specially mentioned was, as the report tells us, 4 4 easily ” 
 answered. The answer given was that in the nature of the transac- 
 tion it was impossible to specify names ; that the injury complained of 
 was in effect that the bidding at the auction had been prevented and 
 stopped, and that everybody had gone away. It had, therefore, become 
 impossible to tell with certainty who would have been bidders or pur- 
 chasers if the auction had not been rendered abortive. This case 
 shows, what sound judgment itself dictates, that in an action for false- 
 hood producing damage to a man’s trade, which in its very nature is 
 intended or reasonably likely to produce, and which in the ordinary 
 course of things does produce, a general loss of business, as distinct 
 from the loss of this or that known customer, evidence of such general 
 decline of business is admissible. In Hargrave v. Le Breton 1 it was 
 a falsehood openly promulgated at an auction. In the case before us 
 to-day, it is a falsehood openly disseminated through the press — prob- 
 ably read, and possibly acted on, by persons of whom the plaintiff 
 never heard. To refuse with reference to such a subject-matter to 
 admit such general evidence would be to misunderstand and warp the 
 meaning of old expressions ; to depart from, and not to follow, old 
 rules ; and, in addition to all this, would involve an absolute denial of 
 justice and of redress for the very mischief which was intended to be 
 committed. It may be added that, so far as the decision in Riding v. 
 Smith can be justified, it must be justified on the ground that the 
 court (rightly or wrongly) believed the circumstances under which the 
 falsehood was uttered to have brought it within the scope of a similar 
 principle. In our opinion, therefore, there has been no misdirection 
 and no improper admission of evidence, and this appeal should be dis- 
 missed with costs. Appeal dismissed. 
 
 DEAN DUDLEY v. RICHARD F. BRIGGS. 
 
 In the Supreme Judicial Court, Massachusetts, May 8, 1886. 
 
 [ Reported in 141 Massachusetts Reports, 582.] 
 
 Tort. Writ dated September 18, 1885. The declaration was as 
 follows : — 
 
 44 And the plaintiff says that he is, and has been for many } T ears, a 
 compiler and publisher of directories of cities, towns, and counties in 
 
 1 4 Burr. 2422. 
 
SECT. II.] 
 
 DUDLEY V. BRIGGS. 
 
 91 
 
 this Commonwealth and elsewhere ; that by care, attention, skill, and 
 faithfulness, and after great labor and expense, he had acquired a large 
 number of subscribers among business men and other people, through- 
 out the cities and towns of Bristol County, and elsewhere in this Com- 
 monwealth, for 4 The Bristol County Directory,’ which the plaintiff has 
 compiled and published biennially for many years, and until the acts 
 and doings of the defendant hereinafter complained of ; that, at great 
 labor and expense, he had acquired a large and valuable list of 
 advertisers in his said directory, from whom, as well as from the said 
 subscribers to said director}^ he obtained a large income, and would 
 have continued to do so, but for the acts and doings of the defendant 
 hereinafter alleged and set forth. 
 
 “And the plaintiff says that, according to his usual and ordinary 
 custom in the compilation and publication of the said 4 The Bristol 
 County Directory,’ he would have compiled and published the same in 
 this year, a. d. 1885, and he made his preparations therefor, but he says 
 that the defendant and his canvassers, and other servants and agents, 
 in order to injure the plaintiff, and to deprive him of the opportunity 
 of compiling and publishing said directory for said year of 1885, 
 and thereafterwards, and receiving the gains and profits therefrom, and 
 to secure the same to the defendant, together with all the gains and 
 profits arising therefrom, and otherwise to injure the plaintiff and get 
 gain, profit, and advantage to the defendant, knowingly and wilfull}', 
 falsely and fraudulent^, pretended and represented to many persons, 
 and particularly to the plaintiffs patrons, the advertisers in said direc- 
 tory and the subscribers thereto throughout said Bristol County, that 
 the plaintiff had gone out of the business of compiling and publishing 
 said directory, that the plaintiff had sold out said business to the 
 defendant, that the said canvassers and the defendant’s other servants 
 and agents were compiling the materials for the plaintiff’s director}', 
 the same as formerly, and other false and fraudulent representations 
 then and there made, of which the plaintiff is not } T et fully informed, 
 and thereby deceitfully and wrongfully induced the plaintiff’s said 
 patrons, advertisers, and subscribers, in and throughout said Bristol 
 County, to give to the defendant their advertisements and subscriptions, 
 and to pay him instead of the plaintiff therefor. 
 
 44 Whereas, in truth and in fact, the said representations were wholly 
 false and untrue ; the plaintiff had neither gone out of the business of 
 compiling and publishing the said directory, as he had done for } T ears 
 before, nor had he sold out to the defendant, nor had he any intention 
 of doing so ; nor were the defendant and his canvassers, and other 
 agents and servants, compiling the said directory the same as formerly 
 or for the plaintiff ; all of which the defendant, as well as his said can- 
 vassers and other servants and agents, well knew. And the defendant 
 did knowingly, wrongfully, injurious^, and deceitfully compile and 
 publish the said 4 The Bristol County Directory,’ for the year a. d. 1885, 
 and vend and sell the same to the plaintiff’s patrons, advertisers, sub- 
 
92 
 
 DUDLEY V. BRIGGS. 
 
 [CHAP. I. 
 
 scribers, and other persons, as aforesaid. And the plaintiff says that 
 thereby he has been prevented from compiling, publishing, and selling his 
 said directory this year, a. d. 1885, as he has always done heretofore ; 
 that he has lost the great gains and profits which he would otherwise have 
 made and received from the sale thereof, and from advertisers in and 
 subscribers to said directory, and has been put to great loss and 
 expense in preparing for said compilation and publication, till he 
 learned of the defendant's said act and doings, and thereby he will be 
 hereafter prevented from compiling and publishing said directory except 
 at an increased expense and with diminished profits.” 
 
 The defendant demurred to the declaration, on the ground that it did 
 not set forth a legal cause of action. 
 
 The Superior Court sustained the demurrer ; and ordered judgment 
 for the defendant. The plaintiff appealed to this court. 
 
 J. C. Coombs and JV. U. Walker , for the defendant. 
 
 S. H. Dudley , for the plaintiff. 
 
 Field, J. The plaintiff in his declaration does not allege that, by 
 the acts of the defendant, he has been deprived of the benefit of any con- 
 tract he had made, or of any property in existence and in his possession, 
 or that the defendant published his directory for 1885 as a directory pre- 
 pared and published by the plaintiff ; and does not bring his case 
 within such decisions as Lumley v. G3 r e, Marsh v. Billings, 1 Thomson 
 v. Winchester, 2 * Blofeld v. Payne, Morison v. Salmon, 8 and Sykes v. 
 Sykes. 4 
 
 He does not allege that he had any copyright in the previous pub- 
 lications which the publication of the defendant infringed ; and the 
 courts of the Commonwealth have no jurisdiction over infringements of 
 copyright. If each publication of a directory by the plaintiff every two 
 years was a separate publication, then the plaintiff’s declaration amounts 
 to this, — that he intended to publish a directory for 1885, whereby he 
 expected to make profits, but, by reason of the acts of the defendant, 
 he abandoned such an intention, and lost the profits he otherwise would 
 have made. But an intention in the mind of the plaintiff to compile 
 and publish a directory is not propert} 7 , and the abandonment of such 
 an intention is not a loss of property. Bradley v. Fuller. 5 
 
 An attempt has been made to bring this case within what is called 
 slander of goods, manufactured and sold by another. See Western 
 Counties Manure Co. v. Lawes Chemical Manure Co. This implies 
 that the plaintiff was engaged in the business of making and selling 
 directories, and that the defendant made statements disparaging the 
 plaintiff’s business. We think that the declaration does not show that 
 the business of the plaintiff, in publishing a new directory every two 
 years, was a continuous business. The directory to be published in 
 1885 was to be a new compilation and publication. From the nature 
 
 i 7 Cush. 322. 
 
 8 2 M. & G. 385. 
 
 6 118 Mass. 239. j 
 
 2 19 Pick. 214. 
 
 * 3 B. & C. 541, 
 
SECT. II.] 
 
 DUDLEY V. BRIGGS. 
 
 93 
 
 of the book, perhaps this could not well be otherwise. New sub- 
 scribers and new advertisements were to be obtained. We have been 
 shown no case where it has been held that a false statement that the 
 plaintiff had gone out of business, or sold out his business to the 
 defendant, was an actionable slander of a person in his trade ; but 
 upon this we express no opinion. It may be said that such statements 
 tend to injure a man in his business, because they tend to prevent cus- 
 tomers from resorting to him for trade, and to injure the value of the 
 good-will of his business. However this may be, the difficulty is in 
 attaching good-will as a valuable thing to the publication every two years 
 of a new directory. Such a directory could be published by anybod}'. 
 It is perhaps a question of degree whether the publication by the plain- 
 tiff had been so frequent and regular that there can be said to be 
 a good-will that would be protected in law. There is no allegation 
 of any continuing contract, express or implied, of subscribing for, or 
 advertising in, the directories, as a publication periodically issued ; 
 there is no allegation of any place of business to which customers 
 resorted to purchase directories. Until the plaintiff had entered upon 
 the compilation of the directory for 1885, we do not think that there 
 was any business of publishing a directory for 1885 carried on bj^ the 
 plaintiff, or anything that, for example, could have been sold as a 
 going concern by an assignee in insolvenc}’, if the plaintiff had become 
 an insolvent debtor. The cases upon liability for wrongful interference 
 with the business of another are largely collected in Walker v. Cronin ; 
 but in that case there was an actual business, with the carrying on of 
 which the defendant wrongfully interfered. The declaration in this case, 
 indeed, alleges that the plaintiff made his preparations for compiling 
 and publishing a directory for 1885, but it does not allege what those 
 preparations were, or that they were anything valuable. The averment 
 that he ‘ 4 has been put to great loss and expense in preparing for said 
 compilation and publication,” near the end of the declaration, appears 
 to be a part of the damages. 
 
 The plaintiff cites Swan v. Tappan ; 1 but there the declaration was 
 held insufficient, because there was no allegation of special damage. 
 The declaration in the present case cannot well be distinguished in this 
 respect from the declaration in Swan v. Tappan, but we do not deem it 
 necessary to reconsider the decision in that case on this point. There, 
 the plaintiff was actually engaged in selling his book, which had already 
 been printed and put upon the market, and the action was the ordinary 
 action for the malicious disparagement of the goods of another, manu- 
 factured and kept for sale. 
 
 The plaintiff relies upon Benton v. Pratt, 2 which perhaps may be 
 considered as an extreme case. See Randall v. Hazelton. In Benton 
 v. Pratt, Seagraves and Wilson, at Allentown, had orally agreed to pur- 
 chase of the plaintiff two hundred hogs, at the market price, if delivered 
 
 5 Cush. 104. 
 
 a 2 Wend. 385. 
 
94 
 
 BOYNTON V. SHAW STOCKING CO. 
 
 [CHAP. I. 
 
 within three or four weeks, and they had not been previously supplied ; 
 and, “ about the time for the delivery,” the plaintiff was proceeding 
 with his drove of hogs to Allentown for the purpose of delivering to 
 them two hundred hogs. The defendant, b}^ his falsehood and deceit, 
 intentionally prevented the performance of this contract, by persuading 
 Seagraves and Wilson that the plaintiff was not intending to drive his 
 hogs to Allentowm, whereby they were induced to buy the hogs of the 
 defendant, instead of buying the hogs of the plaintiff, as they otherwise 
 would have done. The court sa} r , that it was “ not material whether 
 the contract of the plaintiff with Seagraves and Wilson was binding 
 upon them or not ; ” but the agreement, if there was an agreement, 
 although not in writing, was an actual offer by Seagraves and Wilson, 
 not revoked, and which they would have performed, and the plaintiff 
 was in the actual possession of the property which Seagraves and Wil- 
 son had offered to buy, and was actually proceeding to deliver this 
 property to them, in accordance with their offer. 
 
 The fatal objection to the present case is, that it is entirety prob- 
 lematical whether the plaintiff would actually have published a directory 
 if the defendant had not made the fraudulent misrepresentations alleged. 
 The plaintiff abandoned his intention to compile and publish a direc- 
 tory in consequence of the defendant’s acts ; but this, upon the prin- 
 ciples stated in Bradley v. Fuller, 1 and the cases therein cited, is not 
 sufficient to support an action. Judgment affirmed . 
 
 BOYNTON v. SHAW STOCKING CO. 
 
 In the Supreme Court of Massachusetts, 1888. 
 
 [Reported 146 Mass. 219.] 
 
 Tort for an alleged libel contained in the following words : 
 “ Caution : An opinion of Shaw knit hosiery should not be formed 
 from the navy blue stockings advertised as of * first quality’ by 
 Messrs. S. W. Boynton & Co. at Vl\ cts., since we sold that firm at 
 less than ten cents a pair some lots which were damaged in the dye- 
 house. [Signed] Shaw Stocking Company, Lowell, May 29, 1886.” 
 At the trial in the Superior Court, before Thompson, J., the plain- 
 tiff offered evidence tending to prove the following facts : — 
 
 The plaintiff was the proprietor of a dry-goods store, and did a 
 large business in Waltham, under the style of S. W. Boynton & Co., 
 his customers also coming from the surrounding towns and cities. 
 He had for several years purchased stockings manufactured by the 
 defendant. On May 3, 1886, one Guild, who sold goods of the de- 
 fendant on commission, called at the plaintiff’s place of business and 
 
BOYNTON V. SHAW STOCKING CO. 
 
 95 
 
 SECT. II.] 
 
 represented that he had a large stock of navy blue first quality Shaw 
 knit stockings to sell, which were in such sizes that the defendant 
 would sell them cheap, as it desired to reduce its very large stock. 
 The plaintiff examined samples of the stock then in Guild’s posses- 
 sion, which were first quality navy blue Shaw knit stockings, and, 
 after being assured by Guild that the stock was like the samples and 
 of the very first quality, purchased one hundred dozen pairs. After 
 the receipt of the stockings, and after examining them, the plaintiff 
 caused to be inserted in six issues of “ The Charles River Laborer,” a 
 weekly paper published in Waltham, and having a large circulation in 
 that place and in surrounding towns and cities, the following adver- 
 tisement : “ Shaw Knit Hose, navy blue, size 8 to 11, first quality 
 goods, at V2\ cts. per pair.” Afterwards, the defendant caused the 
 alleged libel to be inserted in six issues of “ The Waltham Daily 
 Tribune,” a newspaper published in Waltham, and having a large 
 circulation therein and in the surrounding cities and towns. 
 
 C. Allen, J. An action will not lie for mere disparagement of the 
 plaintiff’s goods, without averment and proof of special damage. 
 Pooling v. Budget Publishing Co ., 144 Mass. 258. But the plaintiff 
 contends that the words used by the defendant contain an imputation 
 upon his character, and that they imply that he was deceiving the 
 public by advertising goods as of first quality which he knew were 
 damaged. The question, therefore, is this : Taking the words in their 
 natural sense, and without a forced or strained construction, do they 
 contain this imputation ? If the words may fairly bear that meaning, 
 then the case should have been submitted to the jury ; otherwise not. 
 Twombly v. Monroe , 136 Mass. 464 ; Simmons v. Mitchell , 6 App. Cas. 
 156; Capital & Counties Bank v. Henty , 7 App. Cas. 741, 744, 771, 
 772, 790, 793. 
 
 We are of opinion that the words, fairly construed, do not bear that 
 meaning, and that, in order to reach such a construction, it is neces- 
 sary to include something which the defendant did not say, and which 
 its words do not imply. No doubt a case might be imagined where, 
 from peculiar circumstances, — as, for example, from the nature of 
 the article offered for sale, or from the long continued habit of selling 
 goods of a different character or quality from that represented, — it 
 would be a natural inference from a charge otherwise like that which 
 is the subject of this action, that the party was practising fraud or 
 imposition, or was guilty of trickery or meanness. In the present 
 case, such an inference does not naturally arise, and the object of the 
 defendant’s advertisement, judging from its language, appears to have 
 been rather to uphold and maintain the character of its goods than to 
 attack the plaintiff’s character. The court might properly withdraw 
 the case from the jury. See Boynton v. Remington, 3 Allen, 397 ; 
 Evans v. Harlow, 5 Q. B. 624 ; Solomon v. Lawson, 8 Q. B. 823. 
 
 Exceptions overruled. 
 
96 
 
 DAVEY V. DAYEY. 
 
 [CHAI\ I. 
 
 DAYEY v. DAYEY. 
 
 In the Supreme Court of New York, 1898. 
 
 [. Reported 50 N. Y. S. 161.1] 
 
 Action by Michael Davey against Andrew Davey to recover dam- 
 ages for a libel published by defendant defaming plaintiff's business 
 methods. There was a verdict for plaintiff, and defendant moves for 
 a new trial. Ordered conditionally. 
 
 McAdam, J. The law has always been considerate of the reputa- 
 tion of tradesmen (Newell, Defam. [2d ed.] 192 ; Harman v. Delany , 
 2 Strange, 898), and when one publishes of a tradesman or merchant 
 any matter in relation to his calling which, if true, would render him 
 unworthy of patronage, one is liable to an action, it being evident 
 that the tendency of such a publication is to bring the subject thereof 
 into disrepute and cause him injury (Brown v. Smith , 13 C. B. 596). 
 Such publications are actionable without proof of special damage. 
 Brown v. Smith , supra. The imputation imports damage, and if none 
 is proved the jury may award substantial damages. The gist of the 
 action is malice ; yet the malice requisite is simply that implied by 
 the law from the facts which give the right of action. Hartman v. 
 Association (Com. PL) 19 N. Y. Supp. 398; Lewis v. Chapman , 16 
 N. Y. 372; Hamilton v. Eno , 81 N. Y. 116; Byam v. Collins , 111 
 N. Y. 143, 19 N. E. 75. 
 
 The litigants are brothers. The defendant carried on the grocery 
 and tea business at No. 2295 First Avenue, and the plaintiff thereafter 
 opened a similar business at No. 2331 First Avenue. The defendant 
 threatened that, if the plaintiff opened a rival establishment near the 
 defendant’s store, he would break up the business of the plaintiff ; and 
 after the latter opened the store the defendant caused to be printed 
 and distributed broadcast 5000 circulars, in which, after eulogistically 
 describing the superiority of his wares and the advantage the public 
 would derive by patronizing him, he said, of and concerning the plain- 
 tiff and his business methods, “ that an unscrupulous grocer of the 
 same name in the immediate vicinity or neighborhood advertises 
 ‘ Davey's teas and coffees 9 with a view to deceive the public, and may 
 sell an inferior article." The words, though cunningly devised and 
 put together, taken in their plain and popular sense, that in which 
 the readers were sure to understand them (Roberts v. Camden , 9 
 East, 96), bear the construction that the plaintiff was an unprincipled 
 grocer (Cent. Diet.) ; that he was dishonest in his business, for he 
 advertised Davey 's teas and coffees with a view to deceive the public ; 
 and that he sold inferior articles, this being one of the characteristics 
 of unscrupulous traders. While the defendant had the undoubted 
 right to praise his own wares, he had no right to single out the plain- 
 
 1 This case is somewhat abridged. — Ed. 
 
DAVEY V. DAYEY. 
 
 97 
 
 SECT. II.] 
 
 tiff and not only denounce his wares, but, in connection therewith, 
 impugn his business integrity. Such a publication could have but one 
 purpose, namely, to injure the plaintiff in his business, and it is, 
 therefore, clearly libellous per se. Fowles v. Bowen , 30 N. Y. 20 ; 
 Moore v. Francis , 121 N. Y. 199, 23 N. E. 1127 ; Chenery v. Good- 
 rich, 98 Mass. 224; Mattice v. Wilcox , 71 Hun, 485, 24 N. Y. Supp. 
 1060, affirmed 147 1ST. Y. 624, 42 N. E. 270. 
 
 Disparagement as to Conduct in Trade. — Ingram v. Lawson , 6 Bing. N. C. 212; 
 Solomon v. Lawson , 8 Q. B. 823; Keener v. Beckett , L. R. 7 Q. B. 11; Lattimer v. News , 
 25 L. T. n. s. 44; Henwood v. Hamson, L. R. 7 C. P. 606; Eeddon Co. v. Ass'n, 1894, 1 Q. B. 
 139; Australian Co. v. Bennett , 1894, A. C. 284; R. R. v. Press Co., 48 Fed. 206; American 
 Co. v. Gates, 85 Fed. 729; Johnson v. Bradstreet Co., 77 Ga. 172; Boynton v. Stocking Co., 
 146 Mass. 219; Sherman v. Burham, 107 Mich. 189; Sunderlin v. Bradstreet Co., 48 N. Y. 
 188; Bradstreet Co. v. Gill, 72 Tex. 115. — Ed. 
 
98 
 
 PENNYMAN V . RABANKS. 
 
 [CHAP. X. 
 
 ( b ) OF GOODS. 
 
 PENNYMAN v. RABANKS. 
 
 In the Queen’s Bench, Michaelmas Term, 1596. 
 
 [Reported in Croke, Elizabeth, 427.] 
 
 Action upon the case for slandering his title. For that he said to 
 J. S., who was in speech to buy the plaintiff’s land, “ I know one that 
 hath two leases of his land, who will not part with them at any reason- 
 able rate,” ubi revera nulla talis dimissio facta fuit. The defendant 
 justifies by reason of two several leases by parol made unto himself. 
 The plaintiff replies de injuria sua propria absque tali causa. Issue 
 was joined, and found for the plaintiff. It was now moved in arrest of 
 judgment that an action lay not for these words ; because it appears by 
 the defendant’s justification that he intended of leases made of himself ; 
 and if a man claim estates, although they be false he shall not be pun- 
 ished. This was agreed by all the court, that no action lay against one 
 for saying that he himself had title or estate in lands, &c., although it 
 were false. But here the words in the declaration, as they are spoken, 
 being in the third person, be not intendable of himself, but of some 
 other, and import a slander to the plaintiff’s title ; and then his justifi- 
 cation afterwards shall not take away that action which before was 
 given to the plaintiff for the slandering of his title. Wherefore rule 
 was given that judgment should be entered for the plaintiff, unless 
 other matter was shown upon the third day of the next term. After- 
 wards, Pasch. 38 Eliz., it was adjudged for the plaintiff, Fenner 
 contradicente. 
 
[sect. II. 
 
 PITT V. DONOVAN. 
 
 99 
 
 PITT v. DONOVAN. 
 
 In the King’s Bench, June 29, 1813. 
 
 [Reported in 1 Maule ^ Selwyn , 639.] 
 
 Action for slander of title. Plea : general issue. 
 
 At the trial before Graham, B., it appeared that the plaintiff had 
 purchased certain lands at Bromesberrow from W. H. Y., and was about 
 to sell the same to one Barton, but that the defendant wrote two letters 
 to Barton warning him against completing the purchase, on the ground 
 that W. H. Y. was insane at the time of his conveyance to the plaintiff. 
 Barton thereupon declined to purchase the lands. It further appeared 
 that a term of years in the estate was vested in the defendant as trustee 
 for securing to Mrs. W. H. Y. her jointure, and that the defendant’s 
 wife was sister of W. H. Y., and his heir in the event of his dying 
 without issue. 
 
 After an investigation of man}’ hours the learned judge left the ques- 
 tion to the jury upon the evidence, stating to them, in the course of his 
 summing up, that in order to maintain the action some malice must be 
 fixed on the defendant, that is, the action must be injurious and pro- 
 ceeding from an improper motive ; that if the evidence satisfied them, 
 as men of good sense and good understanding, that Mr. Y. was insane, 
 or if the defendant entertained a persuasion that he was insane upon 
 such grounds as would have persuaded a man of sound sense and 
 knowledge of business, then the defendant would be entitled to a 
 verdict. 
 
 The jury found a verdict for the plaintiff, damages 40s. ; whereupon 
 a rule nisi was obtained in the last term for a new trial, on the ground 
 of a misdirection. 
 
 Dauncey , Abbott , and Puller , now showed cause. 1 
 
 The Attorney- General, Jervis, and W. E. Taunton , contra, were 
 stopped by the court. 
 
 Bayley, J. 2 I am of the same opinion. It seems to me that the 
 question for the consideration of the jury was, whether the defendant 
 really believed that which he made the subject of his communication. 
 I have no difficulty in saying that the defendant is not to be regarded 
 as a mere stranger in this case. I think that he had not only a right, 
 but, if he believed it to be true, that he was called upon to make the 
 communication ; for if at any subsequent time Mr. Y. should die with- 
 out issue, and afterwards the defendant should bring an ejectment to 
 try the sanity of this gentleman, it would afford matter for strong 
 observation against him, that he had suffered Burton to complete the 
 
 1 The statement of the case has been condensed ; the argument for the plaintiff, 
 and the concurring opinions of Lord Ellenborough, C. J., and Dampier, J., are 
 omitted. — Ed. 
 
 2 Le Blanc, J., had left the court. 
 
100 
 
 PITT V. DONOVAN. 
 
 [chap. I. 
 
 purchase of this estate and to pay his money for it, without communi- 
 cating to him that his title would be disputed. I think, therefore, that 
 if the defendant really believed this contract to be void for the want of 
 sanity in Y., it was not only his right but his duty to make the com- 
 munication. Then where a person who is not to be treated as a mere 
 stranger is sued in an action of this kind, two things are to be made 
 out ; first, that there is a want of probable cause ; and secondly, that 
 the party who made the communication acted maliciously. Now 
 whether a party acted maliciously depends upon his own motives and 
 on the view which the jury entertained of the mind of the party himself ; 
 and we cannot try what are the motives and feelings of particular men’s 
 minds by referring to the mind of some one other person ; therefore if 
 we refer to a mind that is sensible and reasonable, and which does not 
 judge under the same pressure as the mind of the person in question 
 might do, and make that sensible and reasonable mind the standard by 
 which to judge of the state of mind of the person who is under that 
 pressure, we shall be referring to an improper rule to judge by. The 
 question here is not wh^t judgment a sensible and reasonable man 
 would have formed in this case, but whether the defendant did or did 
 not entertain the opinion he communicated. I forbear to give any 
 opinion on the weight of evidence, but the short question is, whether 
 the defendant acted bona fide. That was the question for the jury to 
 decide, but was not left to them in that form ; that is, whether he acted 
 maliciously or not. I therefore feel myself bound to say that there 
 ought to be a new trial. Buie absolute. 
 
SECT. II. 
 
 PAULL V . HALFERTY. 
 
 101 
 
 PAULL v. HALFERTY. 
 
 In the Supreme Court of Pennsylvania, 1869. 
 
 [Reported 63 Pa . St . 46. !] 
 
 The representation in this case was, that an experienced iron 
 manufacturer was of opinion that the iron ore in the land was but a 
 "pocket” or nest, that would suddenly run out, and that he had used 
 ore from the bank with other ores, in order to save it. This was a 
 most successful mode of depreciating the value of the land as mineral 
 land, and if this was false and malicious as well as injurious to the 
 plaintiff, why shall he not be indemnified ? The defendant did not 
 pretend to prove that Col. Mathiot ever did say what he imputed to 
 him, or that the fact, independently of him, was true. The witness, 
 the party in treaty for the land, says that in consequence of this com- 
 munication from the defendant, having confidence in him, he refused 
 to go on with the purchase, and thus the matter ended. As the use 
 of the words in question was not in se actionable, the plaintiff proved 
 their falsity, so far as observation, experience, judgment, and the 
 declarations of the defendant could go. This made a case for the 
 jury, and it would, we think, have been manifest error in the judge to 
 have affirmed the defendant’s point. 
 
 It would hardly be denied, I think, if one were falsely and mali- 
 ciously to represent that a piece of land and residence which a neigh- 
 bor was about to sell was very unhealthy, and thus break off an 
 advantageous sale, that this would be actionable, if damage was 
 shown. 
 
 For misrepresenting personal qualities, such as the imputation of 
 the want of chastity, by which an advantageous marriage was lost, 
 an action lies, although the words employed may not in themselves be 
 actionable. Moody v. Baker , 5 Cowen, 351, is of this sort, and there 
 are many such in the books. For falsely representing a ship as unsea- 
 worthy, an action lies : Ingram v. Lawson , 9 Car. & P. 326. This, 
 although the seaworthiness of the vessel might be claimed as “ a 
 standing refutation ” of the slander, being a thing easily ascertained. 
 I regard the text of Starkie on Slander, page 172, ed. of 1869, as quite 
 to the point in a case of this kind. It is there said, “ where a party 
 is prevented from selling, exchanging, or making any advantageous 
 disposition of land or other property, in consequence of the imper- 
 tinent interference of the defendant, he may maintain an action for 
 the inconvenience he has suffered.” Burr. R. 2622 is cited for this 
 by the learned author. With all these analogies and principles to 
 sustain the ruling of the learned judge, we think he committed no 
 error in answering the defendant’s first point as he did. 
 
 1 This case is abridged. — Ed. 
 
102 
 
 HATCHARD V . MEGE. 
 
 [CHAP. I. 
 
 HATCHARD v. MEGE and Others. 
 
 In the Queen’s Bench Division, April 1, 1887. 
 
 [Reported in 18 Queen’s Bench Division Reports, 771.] 
 
 Day, J. 1 This is an application to set aside a nonsuit, which was 
 directed by the Lord Chief Justice on the opening statement of counsel, 
 and the question is whether the nonsuit was properly entered. 
 
 The statement of claim alleged that the defendants wrote and pub- 
 lished “ of and concerning the plaintiff and his said trade as a wine- 
 merchant and importer the following false and malicious libel, that is 
 to say : — 
 
 “ 4 Caution : Delmonico Champagne. Messrs. Delbeck & Co., finding 
 that wine stated to be Delmonico champagne is being advertised for 
 sale in Great Britain, hereb} 7 give notice that such wine cannot be the 
 wine it is represented to be, as no champagne shipped under that name 
 can be genuine unless it has their names on their labels. Messrs. 
 Delbeck & Co. further give notice that if such wine be shipped from 
 France they will take proceedings to stop such shipments, and such 
 other proceedings in England as they may be advised/ thereby mean- 
 ing that the plaintiff had no right to use his said registered trade-mark 
 or brand for champagne imported or sold by him, and that in using 
 such trade-mark or brand he was acting fraudulently, and endeavoring 
 to pass off an inferior champagne as being of the manufacture of 
 Messrs. Delbeck & Co., and that the champagne imported and sold by 
 the plaintiff was not genuine wine, and that no person other than the 
 defendants had the right to use the word ‘ Delmonico ’ as a trade-mark 
 or brand, or part of a trade-mark or brand, of champagne in the United 
 Kingdom.” 
 
 The publication there set out is complained of as a libel on the plain- 
 tiff in relation to his trade. It is substantially a warning not to buy 
 Delmonico champagne because it is not genuine. The statement of 
 claim alleges that the publication is false and malicious ,* that would be 
 a question for the jury ; it is not for us to consider the facts of the 
 case ; we can only look at what was opened by the plaintiff’s counsel 
 and what appears on the pleadings. The innuendo charges that the 
 defendants intended to convey the meaning that the plaintiff had no 
 right to use his trade-mark or brand, and that the wine he sold was not 
 genuine. It may be that the publication bears that meaning, and that 
 the words used import dishonesty. The plaintiff has died, and the 
 question to be decided is how much, if any part, of the cause of action 
 survives. The statute 4 Edw. 3, c. 7, and the course of practice, make 
 it clear that a civil action for libel dies with the death of the person 
 libelled. It does not come within the spirit, and certainly not within 
 the letter of the statute. There is, however, a further question whether 
 
 1 Only the opinion of Day, J., is given. Wills, J., concurred. — Ed. 
 
SECT. II.] 
 
 HATCHARD V. MEGE. 
 
 103 
 
 a right of action can survive because injury to the plaintiffs trade-mark 
 is alleged. Injury to trade is constantly alleged in actions for libel, and 
 therefore that does not affect the question of survivorship. In the 
 present case the second part of the statement of claim may be sub- 
 divided into two separate and distinct claims. The first is for ordinal 
 defamation, either independently of the plaintiff’s trade, affecting his 
 character b} 7 charging him with being a dishonest man, or defamation 
 of him in his trade by charging him with being a dishonest wine- 
 merchant. That claim would not survive, for it is nothing more than 
 a claim in respect of a libel on an individual. But this publication may 
 be construed to mean that the plaintiff had no right to use his trade- 
 mark. This is not properly a libel, but is rather in the nature of 
 slander of title, which is well defined in Odgers on Libel and Slander, 
 c. v., p. 137, in the following passage : “ But wholly apart from these 
 cases there is a branch of the law (generally known by the inappropri- 
 ate but convenient name — slander of title) which permits an action to 
 be brought against any one who maliciously decries the plaintiff’s goods 
 or some other thing belonging to him, and thereby produces special 
 damage to the plaintiff. This is obviously no part of the law of defa- 
 mation, for the plaintiff’s reputation remains uninjured ; it is realty an 
 action on the case for maliciously acting in such a way as to inflict loss 
 upon the plaintiff. All the preceding rules dispensing with proof of 
 malice and special damage are therefore wholly inapplicable to cases of 
 this kind. Here, as in all other actions on the case, there must be et 
 damnum et injuria . The injuria consists in the unlawful words 
 
 maliciously spoken, and the damnum is the consequent money loss to 
 the plaintiff.” 
 
 It appears, therefore, that the first and last parts of the innuendo in 
 the present case suggest slander of title. As appears from the pas- 
 sage I have read, an action for slander of title is not an action for libel, 
 but is rather in the nature of an action on the case for maliciously 
 injuring a person in respect of his estate by asserting that he has no 
 title to it. The action differs from an action for libel in this, that 
 malice is not implied from the fact of publication, but must be proved, 
 and that the falsehood of the statement complained of, and the exist- 
 ence of special damage, must also be proved in order to entitle the 
 plaintiff to recover. The question whether the publication is false and 
 malicious is for the jury. Here, I think, special damage is alleged by 
 the statement of claim, and if the plaintiff could have shown injury to 
 the sale of the wine which he sold under his trade-mark, he would have 
 been entitled to recover, arid that is a cause of action which survives. 
 
 For these reasons I am of opinion that the nonsuit was right so far 
 as it related to the claim in respect of a personal libel, but was wrong 
 as to the claim in respect of so much of the publication as impugned 
 the plaintiff’s right to sell under his trade-mark or brand. 
 
 There will, therefore, be an order for a new trial, but it will be 
 limited to this latter part of the claim. Order for a new trial . 
 
104 
 
 LEWIN V. WELSBACH LIGHT CO. 
 
 [CHAP. I. 
 
 LEWIN v. WELSBACH LIGHT CO. 
 
 In the Circuit Court of the United States, 1897. 
 
 [Reported 81 Fed. Rep. 904.] 
 
 Dallas, Circuit Judge. The bill sets forth that the complainants 
 are now endeavoring to become active competitors of the defendants 
 in the sale of incandescent lights, etc., and that one of the defendants 
 manufactures such lights, etc., and the other of them is engaged in 
 selling goods made by the former. It states that the Welsbach Light 
 Company has brought suit against these complainants, in this court, 
 for alleged infringement of a certain patent, and that the complain- 
 ants have duly appeared in that suit. It avers that the patent so sued 
 upon is solely for a process, and that the complainants cannot be held 
 to be infringers thereof, because, as alleged, they are not manufactur- 
 ers, but are exclusively engaged in selling the products of a certain 
 manufacturer, against whom the Welsbach Light Company has brought 
 suit, in the Southern district of New York, for alleged infringement 
 of the same patent, and which suit the said manufacturer, who is 
 amply responsible, is vigorously contesting. The bill also avers that 
 the patent referred to is now invalid, under section 4887 of the Re- 
 vised Statutes, by reason of the expiration of a certain Spanish patent 
 for, as alleged, the same invention. The foregoing is the substance 
 of paragraphs 1 to 8 of the bill. The gist of the complaint is pre- 
 sented in the paragraphs which follow, and may, I think, be fairly 
 reduced to the statement that the defendants in this suit, with know- 
 ledge of the matters already mentioned, and with intent to destroy the 
 complainants’ business, have conspired to threaten, intimidate, and 
 prevent the customers, present and prospective, of the latter, from 
 dealing with them, “ by the systematic and formulated plans, methods, 
 and concerted conduct and action, in manner and form following,” 
 namely, by publishing and distributing “ false, injurious, malicious, 
 scandalous, threatening, and intimidating circulars or printed letters,” 
 containing intimidating threats of suit on the patent before referred 
 to ; by distributing such circulars among the customers and prospec- 
 tive customers of the complainants, and among the trade and the pub- 
 lic generally ; by spying upon the complainants’ business, with the 
 aid of detectives and others, and thus ascertaining their customers ; 
 by causing the defendants’ attorneys to write letters to the complain- 
 ants’ customers (so ascertained), threatening suit against them on the 
 patent aforesaid ; and by causing the agents of the defendants to call 
 upon the customers of the complainants and make like threats. The 
 prayers are for an injunction to restrain the commission of the acts 
 complained of, and for a decree ior such damages as may be found by 
 a jury upon a feigned issue to be awarded. 
 
 The allegation that the patent under which the defendants justify 
 
SECT. II.] LEWIN V. WELSBACH LIGHT CO. 105 
 
 is invalid, and, even if valid, is not infringed by the complainants, is 
 one which, of course, might be made in defense of the suit which it is 
 admitted the defendants have brought against the complainants. 
 However impregnable that defense may be thought to be, it must be 
 maintained in that proceeding before its availabilty can be assumed 
 or adjudged in another. It is a mistake to suppose that, by demur- 
 ring, the defendants have conceded its sufficiency. The demurrer 
 avers that the bill does not show title to the relief sought, but this 
 averment involves neither admission nor denial of invalidity or of 
 noninfringement, but simply challenges the right of the complainants 
 to have either of those questions tried in the manner they propose; 
 and in my opinion, it is clear that they are not entitled to have them 
 tried in this suit. Accordingly, the only legitimate inquiry now is : 
 Are the acts and conduct of the defendants, as alleged in the bill, 
 such as a court of equity should restrain the owner of a presumptively 
 valid patent from doing and pursuing? What, then, does the bill 
 allege that the defendants have actually done to the injury of the 
 complainants ? If nothing more were alleged than that the defendants 
 have given notice, in good faith and in temperate language, of their 
 purpose to proceed against alleged infringers, I would have no hesita- 
 tion in holding that they had not exceeded their right. But the bill 
 goes somewhat further. It alleges the intent of the defendants to be, 
 not to protect and maintain their own rights, but, under color and pre- 
 tense of that object, to destroy the complainants’ business, in advance 
 of any adjudication of the question of their right to maintain and con- 
 tinue it, and that, in pursuance of such intent, the circulars or letters 
 complained of have not been properly framed, but are “ false, inju- 
 rious, malicious, scandalous, threatening, and intimidating.” It is not 
 manifestly impossible that this allegation may be sustained, and in 
 such manner as to entitle the complainants to relief, though I may 
 say that it does not seem to me to be probable, in view of the fact that 
 the complainants have themselves been sued on the patent, that the 
 defendants’ good faith in notifying their purpose to proceed against 
 other alleged infringers (if that is the substance of all they have done) 
 can be successfully attacked ; and the criticism of defendants’ counsel 
 upon the omission to set out any of the circulars in the bill calls atten- 
 tion to a matter which may be not without significance. If, upon the 
 one hand, those circulars should turn out to be such notices as the de- 
 fendants could rightfully give ; or if, on the other hand, they shall, 
 when produced, appear to be mere libels, — this suit could not be sus- 
 tained. But my examination of the case, as it is now presented, has 
 led me to believe that the bill should be retained, but that the ques- 
 tions which have been adverted to should be reserved for further con- 
 sideration hereafter ; and, accordingly, the demurrer is overruled, but 
 without prejudice, and with leave to the defendants to again present 
 the same matter by answer. 
 
106 
 
 WEST. COS. MANURE CO. V. LAWES MANURE CO. [CHAP. I. 
 
 THE WESTERN COUNTIES MANURE CO. v. THE LAWES 
 CHEMICAL MANURE CO. 
 
 In the Exchequer, June 9, 1874. 
 
 [Reported in Law Reports, 9 Exchequer, 218.] 
 
 Bramwell, B. 1 In this case our judgment must be for the plain- 
 tiffs. The case may be shortly stated thus. The plaintiffs trade in a 
 certain article of manure, and it is alleged that the defendants falsely 
 and maliciously published of and concerning that manure, and of and 
 concerning the plaintiffs’ trade and manufacture, a certain statement 
 which contains in it this, — that it was an article of low quality and 
 ought to be the cheapest of four, of which this is one, the others being 
 mentioned. So far an action would not be maintainable, because it is 
 not libelling an article to say that it is an article of low quality and 
 ought to be cheaper than others. That part is not specifically stated 
 to be untrue, but having been published as it is said of and concern- 
 ing the plaintiffs’ manufactures and trade, the declaration goes on and 
 says, “ meaning thereby that the artificial manures so manufactured 
 and traded in by the plaintiffs were artificial manures of inferior quality 
 to other artificial manures, and that they especially were of inferior 
 quality to the artificial manures of the defendants.” I think if it 
 stopped there it would not be the subject-matter of an action, even 
 with special damage resulting from it, because I do not see that it is 
 injurious to an article to say that it is of inferior quality. It may 
 attract certain customers, and it is a very good thing that people can 
 be found who will sell things of an inferior quality in order that they 
 may not be wasted. But what makes the action maintainable is the 
 allegation that follows : “ Whereas, in truth and in fact, the said arti- 
 ficial manures so manufactured and traded in by the plaintiffs were 
 not of inferior quality, and were not inferior in quality to the said 
 articles of manure of the defendants ; ” and by reason of the premises, 
 certain persons, who, if they had not been told that which was un- 
 true, would have continued to deal with the plaintiffs, are alleged to 
 have ceased to deal with them. So that it appears there was a state- 
 ment published by the defendants of the plaintiffs’ manufacture, which 
 is comparatively disparaging of that manufacture, which is untrue so 
 far as it disparages it, and which has been productive of special dam- 
 age to the plaintiffs ; and it is stated that that publication was made 
 falsely and “ maliciously,” which possibly may mean nothing more than 
 that it was made falsely, and without reasonable cause, calling for a 
 statement by the defendants on the subject. But if actual malice is 
 necessary — which I do not think is the case — the allegation is suffi- 
 cient. It seems to me, however, that where a plaintiff says, “ You have 
 without lawful cause made a false statement about my goods to their 
 
 1 Only the opinions of the court are given. — Ed. 
 
107 
 
 SECT. II.] WEST. COS. MANURE CO. V. LAWES MANURE CO. 
 
 comparative disparagement, which false statement has caused me to lose 
 customers,” an action is maintainable. 
 
 I do not go through the cases, but undoubtedly there is nothing in 
 any of them inconsistent with the judgment we now pronounce. The 
 only case that I will refer to is Young v. Macrae. 1 When examined 
 that case will be found to differ materially from this one. The dispar- 
 aging statement there was not expressly said to be untrue ; it was only 
 said generally that the libel was untrue, which it might be if onl}’ so 
 much of it was untrue as contained praise of the defendants’ own goods. 
 On the general principle, therefore, that an untrue statement disparag- 
 ing a man’s goods, published without lawful ^occasion, and causing him 
 special damage, is actionable, we give our judgment for the plaintiffs. 
 
 Pollock, B. I agree that our judgment in this case should be in 
 favor of the plaintiffs. This case, no doubt, involves first principles. 
 On the one hand, the law is strongly against the invention or creation 
 of any rights of action, but, on the other hand, where a wrong has 
 actually been suffered by one person in consequence of the conduct of 
 another, one is anxious to uphold as far as possible the maxim “ ubi 
 jus ibi remedium” It seems to me the present case comes within that 
 rule. Now, in the first place, this is not an action of libel. I think it 
 is entirely distinguishable from that class of cases. It is alleged in the 
 declaration that the matter complained of here was written. I think 
 that makes no distinction. I will not say more upon that than that the 
 difference between a written or verbal statement of the kind now com- 
 plained of and an ordinary defamatory statement is very clearly pointed 
 out by Tindal, C. J., in his judgment in Malachy v. Soper. This action 
 is, I think, in the nature of an action of slander of title, and comes 
 within the general rule laid down as to such actions in Conans’ Digest, 
 where it is said that an action lies when special damage is shown. 
 (Com. Dig. tit. Action on Case for Defamation, Gil.) 
 
 The only question, therefore, that seems to arise is, what is the fair 
 intention of the words? It is alleged that the defendants were con- 
 triving and intending to injure the plaintiffs in their business, and that 
 they falsely and maliciously printed and published the words in ques- 
 tion. Now I do not attach any special meaning to the word “ mali- 
 ciously,” except so far as it must be taken with the words “contriving 
 and intending to injure the plaintiffs.” I think that deprives the defend- 
 ants of what I may call any legal occasion or opportunity on which they 
 might use words of this kind. Therefore we have it stated that with- 
 out legal occasion, without any necessit} r , the defendants have used 
 language of and concerning the plaintiffs’ goods which not only are 
 false, but are such as to injure the plaintiffs in their business, and 
 special damage is alleged. When all these things concur it seems to 
 me a good cause of action is disclosed. With reference to the cases 
 that have been cited, Malachy v. Soper, Evans v. Harlow, 2 and Young 
 v. Macrae, 3 1 would only observe that, in the two first-mentioned cases, 
 
 1 3 B. & S. 264. 2 5 Q. B. 624. 3 3 B. & S. 264. 
 
108 
 
 HUBBUCK V. WILKINSON. 
 
 [CHAP. I. 
 
 there is no allegation of special damage, whilst the last is distinguish- 
 able on the grounds mentioned by my Brother Bramwell. Moreover, 
 there the Chief Justice in his judgment supposes a case very like the 
 present one, and states that, in his opinion, an action would lie in such 
 circumstances. Judgment for the plaintiff s. 
 
 HUBBUCK v. WILKINSON. 
 
 In the Court of Appeal, 1898. 
 
 [. Reported 1899, 1 Q. B. 86.1] 
 
 [Defendants conducted certain “ Paint-covering ” experiments. 
 Nine pounds of plaintiffs’ paint were used and the same amount of 
 the defendants. The expert reported that the defendants’ paint had 
 the advantage over the plaintiffs’ in every respect. The plaintiffs 
 alleged that the report was untrue ; that the paint of the plaintiffs 
 was in fact superior ; and that they had lost trade by means of the 
 publication of this report. Motion that no cause of action disclosed.] 
 
 Bindley, M. B-. We will now consider the circular in its other 
 aspect, namely, as a disparagement of the plaintiffs’ goods. From this 
 point of view the case is undistinguishable from Evans v. Harlow 2 and 
 Young v. Macraef where malice, falsehood, and damage were all 
 alleged, and yet it was held that what the defendant there published 
 was not actionable. The ground of the decision in both cases was that 
 for a person in trade to puff his own wares and to proclaim their 
 superiority over those of his rivals is not actionable. The principle 
 laid down in these cases has never been questioned, and it has been 
 emphatically approved in White v. Mellin . 4 The defendants in this 
 case give the results of some experiments with the two sorts of paint, 
 and in paragraph 5 of the statement of claim the plaintiffs say that 
 the report of the experiments is untrue, and that the trials were not 
 fairly made. But, supposing this to be the case, the result is not 
 altered. Paragraph 5 merely states more particularly what has been 
 already stated before in paragraph 3, where the general charge of 
 falsehood is made. Even if each particular charge of falsehood is 
 established, it will only come to this — that it is untrue that the de- 
 fendants’ paint is better than or equal to that of the plaintiffs, for 
 saying which no action lies. The particular reasons for making that 
 statement are immaterial if the statement itself is not actionable. 
 The statement of claim, then, as it stands, shows no reasonable cause 
 of action ; and the only other question is whether the plaintiffs should 
 have liberty to amend by stating special damage as distinguished 
 
 1 This case is somewhat abridged. — Ed. 
 8 [1895] A. C. 154. 
 
 2 5 Q. B. 624. 
 
 4 3 B. & S. 264. 
 
HTJBBUCK V. WILKINSON. 
 
 109 
 
 SECT. II.] 
 
 from general damage. In Evans v. Harlow 1 all the members of the 
 court agreed that the declaration showed no cause of action. Pat- 
 teson, J., however, went on to say that an action for disparaging the 
 plaintiff’s goods would not lie unless the plaintiff alleged that by 
 reason of the disparagement he had been prevented from selling his 
 goods to some particular person. But in Young v. Macrae 2 it was 
 pointed out that there were different ways of disparaging a man’s 
 goods — that some false statements about them might be actionable 
 if special damage could be proved, and Western Counties Manure Co. 
 v. Lawes Chemical Manure Co . 8 was decided on this ground. But in 
 Young y. Macrae 4 it was also pointed out that, if the only false state- 
 ment complained of is that the defendant’s goods are better than the 
 plaintiff’s, such a statement is not actionable, even if the plaintiff 
 is damnified by it. The judgments of Cockburn, C. J., and of Wight- 
 man, J., who was a party to the decision in Evans v. Harlow , 5 are clear 
 upon this point. Lord Herschell expressed himself very emphatically 
 to the same effect in White v. Mellin , 6 and he expressed his clear 
 opinion that it could make no difference whether a defendant said 
 that his goods were better than the plaintiff’s generally, or whether 
 the particulars in which the plaintiff’s goods were said to be inferior 
 were specified. He pointed out with great force that, if actions in 
 such cases were held to lie, the courts would be constantly engaged in 
 trying the respective merits of the goods of rival traders, and the 
 pernicious practice of bringing actions for mere purposes of advertis- 
 ing would be greatly encouraged : see also British Empire Type Set- 
 ting Co. v. Linotype Co? The present plaintiffs’ case would not, 
 therefore, be improved by the allegation and proof of actual loss. In 
 other words, compliance with the master’s order requiring more de- 
 finite allegation of special damage would not improve the plaintiffs’ 
 case. The plaintiffs do allege actual loss attributable to the defend- 
 ants’ circular ; and, if proof of such loss would enable the plaintiffs 
 to maintain their action, it would be wrong summarily to strike out 
 their statement of claim, although it might have been open to a de- 
 murrer before the Judicature Acts : see on this point Ratcliff e v. 
 Evans . 8 We regard this case as falling within the principle estab- 
 lished by Evans v. Harlow , 9 Young v. Macrae,™ and White v. Mellin . u 
 It is not necessary to consider how the case would have stood, if the 
 defendants had not been rival traders simply puffing their own goods 
 and comparing theirs with those of the plaintiffs. If the defendants 
 had made untrue statements concerning the plaintiffs’ goods beyond 
 saying that they were inferior to, or, at all events, not better than, 
 those of the defendants, or if the defendants were not rivals in trade 
 and had no lawful excuse for what they said, it would not have been 
 right summarily to strike out the statement of claim as showing no 
 
 1 5 Q. B. 624. 2.3B. & S. 264. 
 
 4 3 B. & S. 264. 6 5 Q. B. 624. 
 
 7 79 L. T. 8. 8 [1892] 2 Q. B. 524. 
 
 10 3 B. & S. 264. 11 [1895] A. C. 154. 
 
 3 L. R. 9 Ex. 218. 
 
 6 [1895] A. C. 164-5. 
 » 5 Q. 13. 624. 
 
110 
 
 HUBBUCK V. WILKINSON. 
 
 [CHAP. I. 
 
 reasonable cause of action. But the circular complained of is such as 
 plainly to constitute no cause of action even if all the allegations in 
 the statement of claim are true. U nder these circumstances the appeal 
 must be allowed, with costs here and below ; and, as there is no reason 
 to suppose that the plaintiffs can improve their case by any amend- 
 ments they can make, the court ought to exercise the power conferred 
 upon it by Order xxv., r. 4, and order judgment to be entered for the 
 defendants. 
 
 Appeal allowed. 
 
 Disparagement of Goods unfair. — Fenv. Dixie, Wm. Jones, 444; Evans v. Harlow, 
 5 Q. B. 624; Young v. Macrae, 3 B. & S. 264; Manure Co. v. Manure Co., L. R. 9 Exch. 
 218; White v. Mellin, 1895, A. C. 154; Typesetting Co. v. Linotype Co., 79 L. T. 8; Hubbuck 
 v. Wilkinson, 1899, 1 Q. B. 86; Dooling v. Budget Co., 144 Mass. 258; Steketee v. Kirwin, 
 48 Mich. 322; Wilson v. Dubois, 35 Minn. 471; Weir v. Allen, 51 N. H. 177 ; Tobias v. Bor- 
 land, 4 Wend. 537; Lubricating Co. v. Oil Co., 42 Hun, 153; Pauli v. Halferty, 63 Pa. St. 
 46. — Ed. 
 
SECT. II.] 
 
 KEEBLE V. HICKERINGILL. 
 
 Ill 
 
 (c) COERCION. 
 
 (a) WITH FORCE. 
 
 GARRET v. TAYLOR. 
 
 In the King’s Bench, Easter Term, 1620. 
 
 [Reported in Croke, James, 567.] 
 
 Action on the case. Whereas he was a Freemason, and used to sell 
 stones, and to make stone buildings, and was possessed of a lease for 
 divers years to come of a stone-pit in Hedington, in the county of 
 Oxford, and digged divers stones there, as well to sell as to build 
 withal ; that the defendant, to discredit and to deprive him of the com- 
 modity of the said mine, imposed so many and so great threats upon 
 his workmen, and all comers disturbed, threatening to mayhem and 
 vex them with suits if they bought any stones ; whereupon they all 
 desisted from buying, and the others from working, &c. 
 
 After judgment by nihil dicit for the plaintiff, and damages found by 
 inquisition to fifteen pounds, it was moved in arrest of judgment, that 
 this action lay not ; for nothing is alleged but only words, and no act 
 nor insult : and causeless suits on fear are no cause of action. 
 
 Sed non allocatur : for the threatening to mayhem, and suits, whereby 
 they durst not work or buy, is a great damage to the plaintiff, and his 
 losing the benefit of his quarries a good cause of action : and although 
 it be not shown how he was possessed for years, by what title, &c., yet 
 that being but a conveyance to this action, was held to be well enough. 
 And adjudged for the plaintiff. 
 
 KEEBLE v. HICKERINGILL. 
 
 In the Queen’s Bench, Trinity Term, 1706. 
 
 [Reported in 11 East, 574, note.] 
 
 Action upon the case. Plaintiff declares that he was, 8th November 
 in the second year of the Queen, lawfully possessed of a close of land 
 called Minott’s Meadow, et de quodam vivario , vocato a decoy pond, 
 to which divers wild fowl used to resort and come : and the plaintiff had 
 at his own costs and charges prepared and procured divers decoy ducks, 
 nets, machines, and other engines for the decoying and taking of the 
 wild fowl, and enjoyed the benefit in taking them : the defendant know- 
 
112 
 
 KEEBLE V. HICKERINGILL. 
 
 [CHAP. I. 
 
 ing which, and intending to damnify the plaintiff in his vivary, and to 
 fright and drive away the wildfowl used to resort thither , and deprive 
 him of his profit , did, on the 8th of November, resort to the head of the 
 said pond and vivary, and did discharge six guns laden with gunpowder, 
 and with the noise and stink of the gunpowder did drive away the wild 
 fowl then being in the pond : and on the 11th and 12th days of Novem- 
 ber the defendant, with design to damnify the plaintiff, and fright 
 away the wild fowl, did place himself with a gun near the vivary, and 
 there did discharge the said gun several times that was then charged 
 with the gunpowder against the said decoy pond, whereby the wild fowl 
 were frighted away, and did forsake the said pond. Upon not guilty 
 pleaded, a verdict was found for the plaintiff and £20 damages. 
 
 Holt, C. J. I am of opinion that this action doth lie. It seems to 
 be new in its instance, but is not new in the reason or principle of it. 
 For, first, this using or making a decoy is lawful. Secondly, this em- 
 ployment of his ground to that use is profitable to the plaintiff, as is 
 the skill and management of that employment. As to the first, every 
 man that hath a property may employ it for his pleasure and profit, as 
 for alluring and procuring decoy ducks to come to his pond. To learn 
 the trade of seducing other ducks to come there in order to be taken is 
 not prohibited either by the law of the land or the moral law ; but it is 
 as lawful to use art to seduce them, to catch them, and destroy them 
 for the use of mankind, as to kill and destroy wild fowl or tame cattle. 
 Then when a man useth his art or his skill to take them, to sell and dis- 
 pose of for his profit ; this is his trade ; and he that hinders another in 
 his trade or livelihood is liable to an action for so hindering him. Why 
 otherwise are scandalous words spoken of a man in his profession 
 actionable, when without his profession the}' are not so? Though they 
 do not affect any damage, yet are they mischievous in themselves ; and 
 therefore in their own nature productive of damage ; and therefore an 
 action lies against him. Such are all words that are spoken of a man 
 to disparage him in his trade, that may bring damage to him ; though 
 they do not charge him with any crime that may make him obnoxious 
 to punishment ; as to say a merchant is broken, or that he is failing, or 
 is not able to pay his debts, 1 Roll. 60, 1 ; all the cases there put. 
 How much more, when the defendant doth an actual and real damage 
 to another when he is in the very act of receiving profit by his employ- 
 ment. Now there are two sorts of acts for doing damage to a man’s 
 employment, for which an action lies ; the one is in respect of a 
 man’s privilege ; the other is in respect of his property. In that of 
 a man’s franchise or privilege whereby he hath a fair, market, or ferry, 
 if another shall use the like liberty, though out of his limits, he shall 
 be liable to an action ; though by grant from the King. But therein is 
 the difference to be taken between a liberty in which the public hath a 
 benefit, and that wherein the public is not concerned. 22 H. 6. 14, 15. 
 The other is where a violent or malicious act is done to a man’s occupa- 
 tion, profession, or way of getting a livelihood ; there an action lies in 
 
SECT. II.] 
 
 IBOTTSON V. PEAT. 
 
 113 
 
 all cases. But if a man doth him damage by using the same employ- 
 ment ; as if Mr. Hickeringill had set up another decoy on his own 
 ground near the plaintiff’s, and that had spoiled the custom of the 
 plaintiff, no action would lie, because he had as much liberty to make 
 and use a decoy as the plaintiff. This is like the case of 11 H. 4, 47. 
 One schoolmaster sets up a new school to the damage of an ancient 
 school, and thereby the scholars are allured from the old school to come 
 to his new. (The action there was held not to lie.) But suppose Mr. 
 Hickeringill should lie in the way with his guns, and fright the boys 
 from going to school, and their parents would not let them go thither ; 
 sure that schoolmaster might have an action for the loss of his scholars. 
 29 E. 3, 18. A man hath a market, to which he hath toll for horses 
 sold : a man is bringing his horse to market to sell : a stranger hinders 
 and obstructs him from going thither to the market: an action lies, 
 because it imports damage. Action upon the case lies against one 
 that shall by threats fright away his tenants at will. 9 H. 7, 8 ; 21 
 H. 6, 31 ; 9 H. 7, 7 ; 14 Ed. 4, 7 ; Vide Rastal. 662 ; 2 Cro. 423. 
 Trespass was brought for beating his servant, whereby he was hin- 
 dered from taking his toll; the obstruction is a damage, though not 
 the loss of his service. 
 
 IBOTTSON v. PEAT. 
 
 In the Exchequer, May 1, 1865. 
 
 [Reported in 3 Hurlstone Sp Coltman, 644.] 
 
 Bramwell, B. 1 I am also of opinion that the plaintiff is entitled to 
 judgment. The declaration states that the plaintiff being possessed of 
 certain land, the defendant unlawfully and with intent to drive and 
 frighten away game then being on the land of the plaintiff, and to pre- 
 vent him from shooting them, fired rockets and combustibles close to 
 and over the land of the plaintiff, so as to be a nuisance to him. The 
 defendant by his plea admits that the matter alleged is true, but sets 
 up a right to do what is complained of for the purpose attributed to the 
 defendant in the declaration, viz., to prevent him from shooting the 
 game. Then what is the reason given? It is this: — “The game 
 
 1 0nly the opinion of Bramwell, B., ia given. Pollock, C. B., Martin and 
 Pigott, BB., concurred. — Ed. 
 
114 
 
 TARLETON V. M’GAWLEY. 
 
 [CHAP. I. 
 
 which I frightened was game which you enticed away from the Duke of 
 Rutland’s land, by placing corn and other food for them on your land ; 
 and therefore I, as the servant of the Duke, in order to prevent you 
 from shooting the game, and from continuing to entice them, did the 
 acts complained of.” In my opinion that is a bad plea. There is 
 nothing in point of law to prevent the plaintiff from doing that, which 
 the plea alleges he has done. I say “ in point of law,” because it can- 
 not be contended for a moment that any action would lie against the 
 plaintiff. As to the propriety of such conduct between gentlemen and 
 neighbors I say nothing. Where a person’s game is attracted from his 
 land, he ought to offer them stronger inducements to return to it. It is 
 like the case I referred to in the course of the argument, Chasemore v. 
 Richards, 1 which shows that if a man has the misfortune to lose his 
 spring by his neighbor digging a well, he must dig his own well deeper. 
 
 Judgment for the plaintiff. 
 
 TARLETON and Others v. M’GAWLEY. 
 
 At Nisi Prius, coram Lord Kenyon, C. J., December 21, 1804. 
 
 [ Reported, in Peake , 205.] 
 
 This was a special action on the case. The declaration stated that 
 the plaintiffs had sent a vessel called the “ Bannister,” with a crew on 
 board, under the command of one Thomas Smith, and loaded with 
 goods proper for trading with the natives, to a part of the coast of 
 Africa called Cameroon, to trade with the natives there. That while 
 the last-mentioned ship was lying off Cameroon, a canoe with some 
 natives on board came to the same for the purpose of establishing a 
 trade, and went back to the shore, of which defendant had notice. And 
 that he well knowing the premises, but contriving and maliciously in- 
 tending to hinder and deter the natives from trading with the said 
 Thomas Smith, for the benefit of the plaintiffs, with force and arms, 
 fired from a certain ship called the “ Othello,” of which he was master and 
 commander, a certain cannon loaded with gunpowder and shot, at the 
 said canoe, and killed one of the natives on board the same. Whereby 
 the natives of the said coast were deterred and hindered from trading 
 with the said T. Smith for the benefit , cfic., and plaintiffs lost their 
 trade. 
 
 Lord Kenyon. This action is brought by the plaintiffs to recover a 
 
 1 2 H. & N. 168 ; 7 H. L. 349. 
 
SECT. II.] MURDOCK, KERR & CO. V. WALKER. 115 
 
 satisfaction for a civil injur)’ which they have sustained. The injury 
 complained of is, that by the improper conduct of the defendant the 
 natives were prevented from trading with the plaintiffs. The whole of 
 the case is stated on the record, and if the parties desire it, the opinion 
 of the court may hereafter be taken whether it will support an action. 
 I am of opinion it will. Had this been an accidental thing, no action 
 could have been maintained ; but it is proved that the defendant had 
 expressed an intention not to permit any to trade, until a debt due 
 from the natives to himself was satisfied. If there was any court in that 
 country to which he could have applied for justice he might have done 
 so, but he had no right to take the law into his own hands. 
 
 MURDOCK, KERR & CO. v. WALKER etal. 
 
 In the Supreme Court of Pennsylvania, 1893. 
 
 [. Reported 152 Pa. St. 595.] 
 
 Bill in equity for injunction. 
 
 The bill averred that plaintiffs are job printers who employ a large 
 number of journeyman printers and pressmen ; that about October 1, 
 1891, the printers and pressmen, then employed by plaintiffs, refused 
 to work unless paid higher wages ; that plaintiffs offered them work 
 at the wages theretofore paid; defendants are members of associa- 
 tions known as Typographical Union No. 7, and Pressmen’s Union 
 No. 13, and the workmen employed by plaintiffs since October 1, 
 1891, are not members of said associations ; that, ever since October 1, 
 1891, defendants, with others unknown, have unlawfully combined 
 and conspired to prevent plaintiffs from taking into and retaining in 
 their employ printers, not members of said unions, who would work 
 at the wages plaintiffs were willing to pay, and to drive away work- 
 men employed by plaintiffs, with malicious intent to control and 
 injure the business of plaintiffs and to compel them to pay the wages 
 demanded by the workmen who left their employment, and to employ 
 only members of said unions, in pursuance of which conspiracy 
 defendants have attempted to accomplish their unlawful purpose by 
 threats, menaces, intimidation, and opprobrious epithets addressed to 
 plaintiffs’ workmen, by gathering in crowds about plaintiffs’ place 
 of business and places where plaintiffs’ workmen board, following 
 said workmen to and from their work, holding them up to the ridicule 
 and contempt of bystanders, and divers other means of violence and 
 intimidation; that such unlawful acts and conduct of defendants 
 
116 
 
 MURDOCK, KERR & CO. V. WALKER. 
 
 [CHAP. I. 
 
 have deprived plaintiffs of the services of many men who were ready 
 and willing to work, and impeded and damnified plaintiffs in their 
 business ; and that defendants intend to continue their unlawful 
 practices if not enjoined therefrom. The prayers were for injunction 
 and general relief. 
 
 Per Curiam, January 3, 1893: — 
 
 This is an appeal from the decree of the Court of Common Pleas 
 No. 3, of Allegheny County, restraining the defendants from gather- 
 ing about plaintiffs’ place of business, and from following the work- 
 men employed by plaintiffs, or who may hereafter be so employed, to 
 and from their work, and gathering about the boarding houses of said 
 workmen ; and from any and all manner of threats, menaces, intimi- 
 dation, opprobrious epithets, ridicule, and annoyance to and against 
 said workmen or any of them, for or on account of their working for 
 the plaintiffs. 
 
 The decree is affirmed, for the reasons given by the learned judge 
 of the court below in his opinion, and the appeal dismissed at the 
 costs of the appellants. 
 
 Force upon the Customer. — Anon., Y. B. 9 H. VII. 7 ; Garrett v. Taylor, Cro. Jac. 
 567 ; Iveson v. Moore, 12 Mod. 262 ; Tarleton v. McGaulev, Peake, 270 ; R. v. Hibbert, 13 
 Cox, 82 ; Re Debs, 158 U. S. 564 ; Mackall t\ Ratchford, *82 Fed. 41; Dixon v. Dixon, 33 
 La. Ann. 1261 ; Mobile v. Supply Co., 30 So. 445 ; R. R. v. Hunt, 55 Vt. 570. — Ed. 
 
SECT. II.] GRAHAM V. ST. CHARLES STREET R. R. CO., ETC. 117 
 
 ( b ) Without Force. 
 
 NOTE. 
 
 [Comyri’s Digest , Tit. Action, A. 1.] 
 
 In all cases where a man has temporal loss, or damage by the wrong 
 of another, he may have an action on the case to be repaired in dam- 
 ages. 
 
 [ NICHOL v. MAETYN. 
 
 Nisi Prius, 1799. 
 
 [Deported 2 Esp. 732.1] 
 
 This was a special action on the case against the defendant for 
 seducing the plaintiffs’ customers. The plaintiffs were wholesale 
 ironmongers ; the defendant had been employed as their traveller, 
 and the foundation of the action was that the defendant had told the 
 country shopkeepers on his last coming that he was himself going 
 into the same business after Christmas , and would then be obliged to 
 them for an order on his own account. 
 
 Lord Kenyon, Chief Justice. A servant, while engaged in the 
 service of his master, has no right to do any act which may injure 
 his trade or undermine his business ; but every one has a right, if he 
 can, to better his situation in the world ; and if he does it by means 
 not contrary to law it is damnum sine injuria ; this request of business 
 for himself was prospective. 
 
 GEAHAM v. ST. CHAELES STEEET EAILEOAD CO. AND 
 THOMAS NEWMAN. 
 
 In the Supreme Court of Louisiana, 1895. 
 
 [Reported 47 La. Ann. 215.] 
 
 Nicholls, C. J. The action is founded upon the following alle- 
 gations : That Newman is the foreman of the company, and as such 
 has the power of employing and discharging its employes ; that for a 
 considerable time, less than one year, he has persistently abused his 
 power to injure the plaintiff in his business of grocer ; that Newman 
 has instructed men in his employ that they must not deal at peti- 
 
 1 This case is abridged. — E d. 
 
118 
 
 ROBISON V. TEXAS PINE LAND ASSOCIATION. [CHAP. I. 
 
 tioner’s store, and that he would discharge them if they did j the in- 
 jury which he estimates at not less than five hundred dollars. 
 
 The issue before us is whether, while the plaintiff, engaged in a 
 lawful business, is legitimately earning his livelihood by and through 
 the patronage of others, the defendant, a corporation, and its foreman, 
 having the power of discharging large numbers of persons, can, with- 
 out incurring legal liability therefor, without justifiable cause, and 
 moved solely by malicious and wanton intent and design to injure the 
 plaintiff, use their power of employment and discharge upon persons 
 seeking employment from them, or already in their employ, so as to 
 cause those who are already dealing with the plaintiff to desist from 
 further doing so, and those who would desire to do so from carrying 
 out their wishes by threats of non-employment or discharge. In so 
 doing, the defendant would not only control their own will, action, and 
 conduct, but forcibly control and change, from pure motives of 
 malice, the choice and will of others to the injury and damage of the 
 plaintiff. 
 
 Remanded. 
 
 ROBISON v. TEXAS PINE LAND ASSOCIATION. 
 
 In the Court of Civil Appeals of Texas, 1897. 
 
 [ Reported 40 S. W. Rep . 843.] 
 
 James, C. J. The petition to which demurrers were sustained is 
 quite lengthy, and we copy appellant’s statement of its nature : “ The 
 suit is for damages growing out of the conduct of the defendant in 
 issuing checks at its store at Silsbee, Hardin County. The original 
 suit was for the value of $154 in value of defendant’s pay checks, and 
 for damages for boycotting plaintiff and breaking up his saloon busi- 
 ness, located about three miles from defendant’s store. The district 
 court held that there was a misjoinder of actions. The plaintiff then 
 dismissed the claim for the $154 in checks, and amended his petition, 
 claiming only the damages by the destruction of his business. The 
 checks are made of cardboard, l£ inches in diameter, with these words 
 printed around the outer edge : ‘ Texas Pine Land Association, Sils- 
 bee, Texas.’ And across the face these words : ‘ Good for $1 in mer- 
 chandise at the store. Not transferable.’ That some of said checks 
 are for smaller amounts than $1. That on the reverse side of checks 
 is the name ‘ Jas. L. Kirby ’ written thereon. The defendant opened 
 its store in 1894, and was engaged in cutting and shipping logs to 
 sawmills at Beaumont, and issued said checks in payment of wages 
 to its employes, who then took the same to the store, and purchased 
 such goods as were needed. That the words 1 Not transferable ’ are 
 upon each check, yet the employes of the defendant bought country 
 produce of the people, and paid for the same in checks, and that these 
 people, who were not employes of defendant, and never had been, 
 
SECT. II.] ROBISON V. TEXAS PINE LAND ASSOCIATION. 119 
 
 bought goods of defendant at its store, and paid for same in checks, 
 and said employes bought goods of defendant and paid in checks, and 
 said employes bought goods of defendant [plaintiff] and paid in 
 checks, and he in turn bought goods of plaintiff [defendant], and paid 
 for same in these checks, and traded some of the checks to others 
 who were not employes of defendant, who bought goods of defendant 
 and paid in checks ; and that the defendant knew of this trade in its 
 checks, and did not object thereto until the plaintiff had a great many 
 of them, and then refused to take the checks from him in payment 
 of goods, and refused to take checks from persons who had bought or 
 traded for same with plaintiff. And the defendant, for the purpose 
 of injuring plaintiff in his business, at a time after the plaintiff had 
 taken and received the checks of the defendant which he now has, 
 stated to its employes that it (defendant) would discharge each and 
 every one of its employes from its service in case any one of them 
 should buy goods, liquors, etc., or trade in any manner whatever with 
 the plaintiff ; and, further, the defendant then and there stated to its 
 clerks and other employes that it would not take up any checks, and 
 receive the same in payment of its goods, wares, and merchandise, 
 from any person whomsoever, when and where said checks had passed 
 through the hands of Jim Kobison, the plaintiff. Plaintiff further 
 alleges that he was at this time making a profit of $150 a month in 
 his business ; that among his customers were the defendant’s employes, 
 and other persons who used defendant’s checks, and that, by reason 
 of defendant’s order to its employes, he could no longer take the 
 checks, except a few, and his customers could not trade with him, 
 etc. ; and that he was thereby damaged by loss of trade in the amounts 
 as claimed.” The petition further disclosed that plaintiff was en- 
 gaged in selling goods of the same kind and quality as were sold at 
 defendant’s store to some of defendant’s employes and other people in 
 the neighborhood ; in other words, that they were, to some extent, 
 competitors in trade. There is also an allegation that defendant had, 
 by its agents and employes, and for its own dishonest and corrupt 
 purposes, and for the purpose of destroying the competition in trade 
 of plaintiff in the sale of goods, wares, and merchandise, threatened 
 its employes with discharge if they refused to sign a certain petition 
 for a local option election, or if they voted against the same, — plain- 
 tiff being engaged in the sale of liquors, — which election, if it had. 
 carried, would have closed up plaintiff’s business. This is alleged 
 probably to show the malice of defendant towards plaintiff. The 
 action upon the checks that had been taken by plaintiff in trade was 
 abandoned, and the prayer of the amended petition was for $650 
 actual and $1000 punitory damages, for loss of business through the 
 act of defendant in threatening its employes with discharge in case 
 they should trade with plaintiff, and in announcing its determination 
 not to honor any checks that passed through the hands of plaintiff. 
 
 The principles stated in Delz v. Winfree, 80 Tex. 400, 16 S. W. Ill, 
 apply in this case. See, also, Graham v. Railroad Co. (La.) 16 South 
 
120 KOBISON V. TEXAS PINE LAND ASSOCIATION. [CHAP. I. 
 
 806. According to plaintiff’s allegations, competition in trade existed 
 between plaintiff and defendant, and it was legitimate for defendant 
 to appropriate to itself all the customers it could command, even to 
 the extent of driving plaintiff out of business, provided the means 
 used for that purpose did not contravene any law, or violate a definite 
 legal right of plaintiff. The latter had no legal right to protection 
 against competition. He had no superior right to the trade of defend- 
 ant’s employes or that of other persons. Poll. Torts, 408. The 
 statute in reference to conspiracies against trade does not apply to 
 this case, where there is no combination, and when the acts com- 
 plained of as affecting competition are the acts of defendant alone. 
 If the defendant could so control its employes as to prevent their 
 dealing with plaintiff, or so control their wages as to divert them 
 from the channels of plaintiff’s business in favor of its own, we know 
 of no rule making it actionable. Had the defendant no proper in- 
 terest of its own to subserve in so doing, but had acted wantonly in 
 causing loss to plaintiff, the rule would be different. The fact that 
 defendant’s purpose by its acts was to break plaintiff up in business 
 would not give the cause of action, for that is the natural result of 
 successful competition. Defendant might at any time have stopped 
 the issuing of checks, and plaintiff could not have complained. It 
 had a right, if the employes were satisfied to work on such terms, 
 to pay the latter directly in goods, and he could not complain, or in 
 checks redeemable in goods only by them and certain other persons. 
 It could not be required to treat the checks as money in the hands 
 of other persons, which is practically a contention of plaintiff. If 
 they could stop the system altogether without giving a right of action 
 in tort, it would follow that they could place restrictions on the use 
 of checks without incurring such liability. This is not a suit to re- 
 cover the value of checks taken by appellant, but one in which he 
 seeks to recover in tort for the invasion of a right, when he fails to 
 show the existence of any right. A system whereby such checks 
 would be honored in the hands of any one except plaintiff was calcu- 
 lated to insure trade at defendant’s store, and diminish that of its 
 rival ; and, as plaintiff has no definite right to the public trade, he has 
 no legal right to complain that defendant absorbed it by the manner 
 of managing its business, and its relation with its employes. The 
 judgment is affirmed. 
 
SECT. IT.] 
 
 ALLEN V. FLOOD AND TAYLOR. 
 
 121 
 
 ALLEN v. FLOOD and TAYLOK. 
 
 In the House of Lords, 1898. 
 
 [Reported 1898, A. C. 1.1] 
 
 [Flood and Taylor were members of the Shipwright’s Union ; 
 Allen was delegate of the Society of Boilermakers. Allen threatened 
 the Glengall Iron Co. that unless Flood and Taylor were discharged, 
 he would call out the Boilermakers next day ; Flood and Taylor were 
 turned off, and subsequently sued Allen. The Divisional Court held 
 for the plaintiffs ; the Court of Appeal affirmed ; but the House of 
 Lords reversed. Part of the opinion of Lord Macnaughten was as 
 follows : — ] 
 
 Now before I proceed to consider the legal grounds on which Ken- 
 nedy, 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 dif- 
 ficulty if possible. The jury found that the settlement of this dis- 
 pute 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 
 
 1 This case is much abridged. — Ed. 
 
122 
 
 ALLEN V. FLOOD AND TAYLOR. 
 
 [CHAP. I. 
 
 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 find- 
 ing 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 communica- 
 tion 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 founda- 
 tion 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. 
 
ALLEN V . FLOOD AND TAYLOR. 
 
 123 
 
 SECT. II.] 
 
 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 imme- 
 diate agent is liable, and it may well be that the person in the back- 
 ground 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 cus- 
 tom, says something not slanderous or otherwise actionable or even 
 improper in itself to induce a friend of his not to employ the trades- 
 man 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 ques- 
 tions 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 com- 
 
r 
 
 124 ALLEN V. FLOOD AND TAYLOR. [CHAP. I. 
 
 monly known by the name of “ boycotting, ” and other forms of oppres- 
 sive combination, seem to me to depend on considerations which are, 
 I think, in the present case, conspicuously absent. 
 
 No Force upon the Customer. — Anon., Y. B. 11 H. IY. 47 ; Nichol v . Martyn, 2 Esp. 
 732 ; Rogers v . Dutt, 13 Moo. P. C. 209 ; Mogul S. S. Co. v . McGregor, 1892, A. C. 25 ; 
 Dueber Co. v . Howard Co., 66 Fed. 637; Gunther v . Altman, 60 N. E. 355 ; Fallon v . 
 Schilling, 29 Kans. 292 ; Hundley v . R. R., 48 S. W. 429 ; Graham v . R. R., 47 La. Ann. 
 214 ; Heyward v . Tileson, 75 Me. 225 ; Walker v . Cronin, 107 Mass. 505 ; Malian v . Brown, 
 13 Wend. 261 ; Payne v . R. R., 13 Lea 507; Robinson v. Land Co., 40 S. W. 843 ; Reycroft 
 v. Traintor, 68 Vt. 219. — Ed.