wished and intended, what the other party wished and intended, and what were the conditions of their agreement, and to see that these were properly recorded, the labours of lawyers and judges would be immensely facilitated. That was the aim of ancient wisdom, and we would do well to make it our own.

HENRY H. BROWN.

III. CONSPIRACY IN CIVIL ACTIONS.

THE

`HE question of the effect of pre-concert and combination in Civil law is beset with difficulty and obscurity, arising partly from the ambiguity of judges' words when touching on the subject. One point is clearthat mere conspiracy, though often indictable, is never actionable, unless some act, which produces damage, has been done in pursuance of it. Whether that act must be one in itself unlawful, or whether, through the mere fact of having been done in pursuance of conspiracy, it may become so, is a point on which the statements of opinion differ. Whether a conspiracy to harm another person, to do some act which is intended to inflict loss upon him and does inflict it, may not give a cause of action, though the same act done with the same intention by an individual would not constitute a wrong and would not be actionable, is not altogether clear. In considering both these questions it is well to bear in mind the fact that in individual action object merely constitutes motive, while in the action of many acting on agreement it takes an ulterior, substantive form through becoming the subject of an agreement. But whether the Civil law takes any notice of that agreement except in so far as pre-concert and combination may intensify effect, whether it regards it as an unlawful act, though, admittedly, not actionable unless some act pro

ducing damage springs from it, is, at least, very doubtful. These are the questions whose position is sought to be here dealt with.

The case of Quinn v. Leathem1 decided in fact that malicious interference with another's trade or labour proceeding from pre-concert and combination is unlawful, but it did not decide that it was the presence of pre-concert and combination that rendered it unlawful, because in order to do this the Lords should have held (1) as a fact, that there was nothing unlawful-conspiracy apart-in the acts by which the defendants effected their interference; and (2), as law, that malicious interference with another's trade or labour—again conspiracy apart—unless by acts in themselves unlawful, is not unlawful, as seemed to have been laid down by Allen v. Flood.?

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When Quinn v. Leathem (the title of the case was Leathem v. Craig till it was brought to the House of Lords) was tried, Allen v. Flood was as yet an authority for the doctrine that malicious interference with another's trade or labour, though by acts not unlawful in themselves, was unlawful. The first and second questions which Fitzgibbon, L.J., left to the jury were—(1) Did the defendants or any of them wrongfully and maliciously induce the customers or servants of the plaintiff named in the evidence to refuse to deal with the plaintiff? (2) Did the defendants or any two or more of them maliciously conspire to induce the plaintiff's customers or servants named in the evidence or any of them not to deal with the plaintiff or not to continue in his employment, and were such persons so induced not to do so? To both questions the jury answered-Yes—and, upon the second finding, the judgment for the plaintiff was upheld, successively, by the Queen's Bench and the Court of Appeal, in Ireland. When the case came before the Irish Queen's Bench the decision 1 L. R. [1901], A. C. 495. 2 L. R. [1898], A.C., p. 1. 3 8 2 I. R. [1899], 667.

of the House of Lords in Allen v. Flood had been given. Throughout all the judgments of the members of the Court rings a tone of lament over that decision. Indeed, the judgment of the late Mr. Justice O'Brien is largely devoted openly to deploring it and to arguments adduced to show that it was wrong. With respectful resentment, they say that they are bound to hold that the acts of the defendants, had they been the work of an individual only, would not have been actionable, but they say-and here their judgment is especially noteworthy-that the decision in Allen v. Flood has not done away with the inherent wrongfulness of the acts done by the defendants in their case or by Allen in his, and that it has only declared them not to be actionable when done by an individual—and that, being wrongful, being done maliciously in order to injure another, they are, by the Common law, actionable when done in pursuance of a conspiracy. Will the premiss of their argument stand scrutiny? The House of Lords said that Allen's action was not unlawful. What force has the adjective "wrongful," used by the Irish judges, if the word "unlawful" cannot be substituted for it? If it means that, though inherently unlawful, such acts are, for certain reasons, in some cases, declared not to be actionable, the decision of the Lords in Allen v. Flood distinctly negatives such a theory, which resembles rather that favoured by the minority of the House.

From this judgment Palles, C.B., dissented. In doing so he would seem to have been consistent with his own. judgment given eight years previously in Kearney v. Lloyd (26 L. R. Ir., 268), which he had expressly based on the ground that an act, not in itself unlawful, did not become so because done in pursuance of pre-concert, unless such pre-concert constituted a criminal conspiracy, and in Quinn v. Leathem he conceived (but the Lords held otherwise) that the criminality was obviated by the Conspiracy and Protection of Property Act 1875, s. 3.

In Kearney v. Lloyd, Palles, C.B., held that a conspiracy to harm-apart, of course, from any unlawfulness of the contemplated means-did not give a cause of action, unless the harm intended were a legal injury. Counsel had urged upon him that such a conspiracy was a criminal offence, but he held that to render it criminal-again, of course, the contemplation of unlawful means excepted-its object must be shown to have been one in itself unlawful.

As the main authority for his decision in Kearney v. Lloyd, the Lord Chief Baron had quoted the statements of Lord Holt, in Savile v. Roberts (1 Raym. (Ld.), 374). The action there was against an individual for malicious prosecution on a charge of misdemeanour, and, the statutes and the ancient writ of conspiracy dealing only with malicious prosecution when carried out in furtherance of a conspiracy, it was argued that, there being no conspiracy in that case, no action lay. Lord Holt replied, "Conspiracy is not the ground of these actions but the damages done to the party: for an action will not lie for the greatest conspiracy imaginable if nothing be put in execution, but if the party be damaged the action will lie. From whence it follows that the damage is the ground of the action, which is as great in the present case as if there had been a conspiracy. And F.N.B. 114 D. says that where two cause a man to be indicted, if it be false and malicious, he shall have conspiracy: where one he shall have case: so that the actions are founded upon one common foundation, but the number of the parties defendants determines it to the one or to the other."

Here conspiracy is spoken of in the narrower sense to which for a long time it remained restricted, that is, roughly, a combination falsely to accuse. As such, if the offence charged was a felony, the conspiracy itself was a Common law misdemeanour, and, for that purpose, the actual conspiracy was the gist of the offence. It is quite clear that no action will lie for conspiracy if nothing be put in execution.

For the purposes of a civil action the damage suffered in consequence of the conspiracy is the thing for which the action may be brought. It is unnecessary to refer to the fact that there are classes of wrongs of whose actionability damage is an essential part. It does not seem, then, that one must necessarily deduce from Lord Holt's statement the conclusion that an act causing damage may not be actionable as being a legal wrong when done in pursuance of conspiracy, which, when not so done, may not be actionable as not amounting to a legal wrong. Moreover, even if such a conclusion should seem necessarily deducible, one must bear in mind that all that Lord Holt had to decide was whether an action can be maintained for a malicious prosecution for a misdemeanour, though conspiracy be not alleged: so that a statement, if there be any, to the effect that conspiracy as such will never render actionable conduct not otherwise so would partake of the nature of obiter dicta.

The judgment of the Court of Queen's Bench in Quinn v. Leathem was upheld by the Irish Court of Appeal on the same grounds as those given by the former Court, and, finally, it was unanimously upheld in the House of Lords. The ratio decidendi of the judgments of their Lordships is not easy precisely to distinguish, but the most general ground seems to be that a combination with the objective of injuring a person in his trade or labour is unlawful. The use of the word "injure" occasions some obscurity, because it is not easy to determine whether it is used in its strictly legal sense, that is, to denote the infringement of a legal right or whether it includes mere harming.

In his judgment, dealing with the defendant's conspiracy, Lord Macnaghten asks (pp. 510, 511), “Does a conspiracy to injure resulting in damage give rise to civil liability? His Lordship thinks that "there is authority for that proposition and that it is founded in good sense." One of the authorities which he quotes, is the charge of the late Lord