by several persons, assuming that that act would have been lawful if done by one, but is unlawful if done by several as the result of a combination between them." Lopes, L.J., said, “Now it is clear that an action for conspiracy is not known to the law," adding that it is not the agreement to do an act which results in the infringement of legal rights, but the infringement itself which gives a cause of action.

But in Temperton v. Russell, Lopes, L.J., held that a conspiracy maliciously to prevent others from entering into contracts with the plaintiff was actionable. He considered that Gregory v. Duke of Brunswick and the dicta in the Mogul Case were authorities for so holding, as was also stated by Lord Esher in his judgment. But, above the ground of conspiracy, Lord Esher held that the presence of the malicious motive made the inducing not to make equally actionable with the inducing to break, contracts. A. L. Smith, L.J., considered that in accordance with what was said in Bowen v. Hall and in the Mogul Case the conspiracy was actionable. The reference to Bowen v. Hall would seem to be one to the opinion expressed there by Lord Esher as to the effect of malicious motive in the procurement of a breach of contract-which opinion the Lords, in Allen v. Flood, held not to be law. Thus, bearing in mind that Temperton v. Russell was decided in 1893, it may well be a matter of conjecture whether the malicious inducement not to make contracts would not have been held to be actionable apart from conspiracy, and whether the latter element was considered to be an essential part of the cause of action.

Probably some such view of the case of Temperton v. Russell was entertained by Bigham, J., when he gave judgment in Boots v. Grundy, for he there, unhesitatingly, held that a combination to harm another in his trade, even from the sole motive of harming, and resulting in such 1 L. R. [1893], 1 Q. B. 715. 2 6 Q. B. D. 333. 8 82 L. T. 769.

harm, is not actionable unless a legal right shall have been violated. Phillimore, J., dissenting, considered that such a combination, its object being purely malicious, was indictable and therefore actionable. He thought that there were cases, R. v. Warburton,1 for instance, which went to show that conspiracies whose object was not even the commission of a tort, are indictable-and he based his judgment, moreover, on the observations of Lords Bramwell, Hannen and Field in the Mogul Case, and the reservations as to conspiracy made by Lords Herschell and Macnaghten in Allen v. Flood. In the case of R. v. Warburton, referred to by Phillimore, J., a conspiracy on the part of a partner and another to defraud the former's co-partner was held to be an indictable offence, though the fraud did not constitute an actionable injury at law; but it was so held on the ground that it was a wrong for which a remedy lay in equity.

This judgment of Phillimore, J., is worthy of careful consideration as it touches upon the root of the whole question, and one can scarcely help feeling a desire for a definite decision of the final tribunal on the subject. Suppose that three corn dealers have, individually, made a contract with a speculator in corn to sell a cargo to him on its arrival, provided they do not sell it prior to that event. Before the cargo arrives they, merely with the spiteful object of causing the speculator to suffer heavily, agree that each one shall sell his cargo before arrival though it fetches a slightly lower price than that stipulated by the speculator, which agreement being carried out, the latter suffers a heavy loss. Has he a right of action against the dealers? It seems clear that if it had been the case of such a conditional contract with a single dealer only, who had subsequently, from the same motive, sold as above, the speculator would have had no cause of action. The

1 L. R. [1870], 1 C. C. R. 274.

comparison of the two cases introduces us to the main ground for distinguishing theoretically between the same external act when done in pursuance of a conspiracy and when done apart from it. The action of the single dealer lets itself, it is submitted, be divided into two, and no more than two, essential parts; one being the resolve or intention to harm, the other being the act of selling. The latter is a lawful act which he is quite entitled to do. Thus, it is clear that the two parts taken separately are outside the interference of the law. Therefore, it is again submitted, it must follow that, if taken together the law punishes them, it will have invaded the region of mere intention, because though it is, one must admit, the whole act of harming that it will be punishing, it will be punishing a man for the exercise of his absolute right merely on account of the intention which he had in exercising it. But the case of the three dealers is divisible into three essential parts intention in several minds; agreement-externalbetween these minds; and the ultimate act of selling. Thus, there is the presence of another act: that is the agreement an act which under various forms constitutes half the basis of the Common law. This was pointed out by the Court in Rex v. Mulcahy, when Willes, J., said: "When two agree to carry it (an object) into effect the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for criminal object or use of criminal means." Similarly, in the case of Rex v. Hamp, Lord Campbell, C. J., spoke the following words: Conspire is nothing: agreement is the thing."

2

It remains to be determined whether the agreement is an unlawful act—whether it is unlawful for two or more people to agree to cause harm to another merely for the purpose of harming him. In the case of the single dealer there is 1 L. R., 3 H. L. 306. 2 6 Cox, C. C. 167.

no purely malicious act, though there is an act dictated purely by a malicious motive. But in that of the three there is such an act, because the agreement is purely an agreement to harm. If it is an unlawful act, seeing that the loss suffered is the intended result of the act, ought not its infliction to constitute a legal injury? It is not contended for a moment that the bare agreement could constitute an actionable wrong, but that, analogously, to some other cases, such as slander of title or common instances of slander where the damage suffered from the act gives the cause of action, the infliction of loss proceeding from the agreement could form an actionable wrong. That the loss would spring directly from an intervening act-the selling-not in itself unlawful-would not, according to the opinion of Lord Brampton as to conspiracies for an unlawful object to be effected by means not unlawful, make any material difference it would simply be the completion of the first act-the agreement—and, being contemplated by it as the means of inflicting the loss, the damage becomes directly connected with the agreement.

Besides Boots v. Grundy, where the prevailing judgment was that of Bigham, J., Huttley v. Simmons1 is, also, an authority against the actionability of conspiracies to harm resulting in harm. There the jury found that the defendant had conspired with others to induce a man not to employ the plaintiff. Darling, J., reserved judgment till the Lords should have given their decision in Allen v. Flood. After that decision, Darling, J., in giving judgment, said that the case was not concluded by that decision, as in this case there had been a finding of conspiracy, but he considered himself bound by authority to come to the conclusion that conspiracy for an object harmful but not unlawful - holding in pursuance of the decision in Allen v. Flood that the object was not unlawful-did not render

1 L. R. [1898], 1 Q. B. 181.

actionable the loss suffered through the defendant's acts. He cited as authorities for his judgment dicta occurring in R. v. Warburton and in the judgment of Lord Coleridge, L.C.J., in the Mogul Case, and, especially, the case of Kearney v. Lloyd. In Quinn v. Leathem, alluding to the case, Lord Brampton said (p. 531), "If I rightly understand the judgment of Darling, J., in Huttley v. Simmons, he treated Allen v. Flood as a binding authority compelling him to hold that the object of the conspiracy as proved was not unlawful: in that view he rightly decided that the count for conspiracy could not be maintained. If he had held that, although the object of the conspiracy was unlawful, yet if the overt acts were not so, because they would not have been unlawful if done by one individual without any conspiracy and had decided on that ground, I should have differed."

One would probably feel much hesitation in holding such an agreement as that which has been suggested above, to be indictable. Apart from the unassailable category of combinations to commit a criminal offence, combinations to do an act harmful to public interests are those whose criminality is most firmly established. The cases that would seem to offer most authority for a contention that a conspiracy to harm is indictable are R. v. Journeymen Tailors of Cambridge and R. v. Eccles.2 In the former the defendants stood indicted for a conspiracy to raise wages: no breach of any statute was alleged or proved. In upholding the conviction the Court are reported to have said: "Yet it is not for refusing to work but for conspiring that they are indicted, and a conspiracy of any kind is illegal, although the matter about which they conspired might have been lawful for them or any of them to do if they had not conspired to do it, as appears in the case of The Tubwomen