land, the court said: "It is a general rule that a conspiracy cannot be made the subject of a civil action unless something is done, which, without the conspiracy, would give a right of action. The damage done is the gist of the action, not the conspiracy. Where the mischief contemplated is accomplished, the conspiracy becomes important, as it may affect the means and measures of redress. The party wronged may look beyond the actual participants in committing the injury and join with them as defendants all who conspired to accomplish it, and the fact of conspiracy may aggravate the wrong; but the simple act of conspiracy does not furnish a substantive ground of action."1 § 79. The Rule in England.-The rule, as established by the recent decisions of the English courts, is somewhat more tolerant of agreements in restraint of trade than the American decisions. In the recent leading case of the Mogul Steamship Company v. McGregor, the defendants, who were firms of shipowners, trading between China and Europe, with a view to obtaining for themselves a monopoly of the homeward tea trade, and thereby keeping up the rate of freight, formed themselves into an association, and offered to such merchants and shippers in China as shipped their tea exclusively in vessels belonging to members of the association a rebate of 5 per cent. on all freights paid by them. The plaintiffs, who were rival shipowners trading between China and Europe, were excluded by the defendants from all the benefits of the association, and, in consequence of such exclusion, sustained damages. It was held that the association, being formed by the defendants with the view of keeping the trade in their own hands, and not with procurement of the breach of a contract, if by such procurement damage was intended to result, and did result, to the plaintiff. Lumley v. Gye, 2 El. & Bl. 216; Brown v. Hall, L. R. 9 Q. B. Div. 333. In the opinion of Mr. Pollock (ubi supra), the difficulties in such cases disappear, or are greatly re duced, when the cause of action is considered as belonging to the class in which malice, in the sense of actual ill will, is a necessary element." Ibid. 1 Robertson v. Parks, 76 Md. 118; s. C., 24 Atl. Rep. 411, 413. See also Kimball v. Harman, 34 Md. 407; Cooley on Torts, 125. the intention of ruining the trade of the plaintiffs, or through any personal malice or ill will towards them, was not unlawful and that no action for conspiracy was maintainable.1 In the opinion in this case, Lord Justice 1 Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. Div. 598. This case was taken to the House of Lords and there affirmed. The opinions of Lords are elaborate, and state most fully the position of English courts upon this question. The case is reported in L. R. (1892) App. Cas. 25. At page 49, Lord Morris says: "My Lords, the facts of this case demonstrate that the defendants had no other, or further object, than to appropriate the trade of the plaintiffs. The means used were: Firstly, a rebate to those who dealt exclusively with them; secondly, the sending of ships to compete with the plaintiffs' ships; thirdly, the lowering of the freights; fourthly, the indemnifying other vessels that would compete with the plaintiffs'; fifthly, the dismissal of agents who were acting for them and the plaintiffs. The object was a lawful one. It is not illegal for a trader to aim at driving a competitor out of trade, provided the motive be his own gain by appropriation of the trade, and the means he uses be lawful weapons. Of the first four of the means used by the defendants, the rebate to customers and the lowering of the freights are the same in principle, being a bonus by the defendants to customers to come and deal exclusively with them. The sending of ships to compete, and the indemnifying other ships, was the competition' entered on by the defendants with the plaintiffs. The fifth means used, viz.: the dismissal of agents might be questionable according to the circumstances; but in the present case, the agents filled an irreconcilable position in being agents for the two rivals, the plaintiffs and the defendants. Dismissal under such circumstances became, perhaps, a necessary incident of the warfare in trade. All the acts done and the means used, by the defendants, were acts of competition for the trade. There was nothing in the defendants' acts to disturb any existing contract of the plaintiffs or induce any one to break such. Their action was aimed at making it unlikely that any one would enter into contracts with the plaintiffs, the defendants offering such competitive inducements as would probably prevent them. The use of rhetorical phrases in the correspondence cannot affect the real substance and meaning of it. Again, what one trader may do in respect of competition, a body or set of traders can lawfully do; otherwise, a large capitalist could do what a number of small capitalists, combining together, could not do, and thus a blow would be struck at the very principle of co-operation and joint stock enterprise. I entertain no doubt that a body of traders, whose motive object is to promote their own trade, can combine to acquire, and thereby in so far to injure the trade of competitors, provided they do no more than is incident to such motive object, and use no unlawful means. And the defendants' case clearly comes within the Bowen said: "To say that a man is to trade freely, but that he is to stop short at any act which is calculated to harm other tradesmen, and which is designed to attract business to his own shop, would be a strange and impossible counsel of perfection. But we were told that competition ceases to be the lawful exercise of trade, and so to be a lawful excuse for what will harm another, if carried to a length which is principle I have stated. Now, as to the contention that the combination was in restraint of trade, and, therefore, illegal: In the first place, was it in restraint of trade? It was a voluntary combination. It was not to continue for any fixed period, nor was there any penalty attached to a breach of the engagement. The operation of attempting to exclude others from the trade might be, and was, in fact, beneficial to freighters. Whenever a monopoly was likely to arise with a consequent rise of rates, competition would naturally arise. I cannot see why judges should be considered specially gifted with prescience of what may hamper or what may increase trade, or what is to be the test of adequate remuneration. In these days of instant communication with almost all parts of the world, competition is the life of trade, and I am not aware of any stage of competition called 'fair' intermediate between lawful and unlawful. The question of 'fairness' would be relegated to the idiosyncrasies of individual judges. I can see no limit to competition, except that you shall not invade the rights of another. But suppose the combination in this case was such as might be held to be in restraint of trade, what follows? It could not be enforced. None of the parties to it could sue each other. It might be held void, because its tendency might be held to be against the public interests. Does that make per se the combination illegal? What a fallacy would it be that what is void and not enforceable becomes a crime; and cases abound of agreements which the law would not enforce, but which are not illegal; which you may enter into, if you like, but which you will not get any assistance to enforce." Lord Hannen, at page 60, says: "In considering the question, however, of what was the motive of the combination, whether it was for the purpose of injuring others, or merely to benefit those combining, the fact of several agreeing to a common course of action may be important. There are some forms of injury which can only be effected by the combination of many. Thus, if several persons agree not to deal at all with a particular individual, as this could not, under ordinary circumstances, benefit the persons so agreeing, it might well lead to the conclusion that their real object was to injure the individual. But it appears to me that in the present case there is nothing indicating an intention to injure the plaintiffs except in so far as such injury would be the result of the defendants obtaining for themselves the benefits of the carrying trade, by giving better terms to customers than their rivals, the plaintiffs, were willing to offer." not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been 'unfair.' This seems to assume that, apart from fraud, intimidation, molestation or obstruction, of some other personal right in rem or in personam, there is some natural standard of 'fairness,' or 'reasonableness' (to be determined by the internal consciousness of judges and juries), beyond which competition ought not in law to go. There seems to be no authority, and I think, with submission, that there is no sufficient reason for such a proposition. It would impose a novel fetter upon trade. The defendants, we are told by the plaintiffs' counsel, might lawfully lower rates, provided they did not lower them beyond a 'fair freight,' whatever that may mean. But where is it established that there is any such restriction upon commerce? And what is to be the definition of a 'fair freight?' It is said that it ought to be a normal rate of freight, such as is reasonably remunerative to the shipowner. But over what period of time is the average of this reasonable remunerativeness to be calculated? All commercial men with capital are acquainted with the ordinary expedient of sowing one year a crop of apparently unfruitful prices, in order by driving competition away to reap a fuller harvest of profit in the future; and until the present argument at the bar it may be doubted whether shipowners or merchants were ever deemed to be bound by law to conform to some imaginary 'normal' standard of freights or prices, or that law courts had a right to say to them, in respect to their competitive tariffs, 'thus far shall thou go and no farther.' To attempt to limit English competition in this way would probably be as hopeless an endeavor as the experiment of King Canute. But on ordinary principles of law no such fetter on freedom of trade can, in my opinion, be warranted. A man is bound not to use his property so as to infringe upon another's rights. Sic utere tuo ut alienium non lædas. If engaged in actions which may involve danger to others he ought, speaking generally, to take reasonable care to avoid endangering them. But there is surely no doctrine of law which compels him to use his property in a way that judges and juries may consider reasonable. If there is no such fetter upon the use of property known to English law, why should there be any such a fetter upon trade?''1 § 80. Conspiracy by a Corporation.-It is well settled that an action may be maintained against a corporation to recover damages caused by a conspiracy. The leading case on this subject was an action brought against several defendants, some of whom were bodies corporate and some individuals, for the recovery of damages caused by an alleged conspiracy. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action in this particular, to-wit: that a corporation is not capable of being a party to a conspiracy. In the opinion in this case, the court said: "We 1 Mogul Steamship Co. v. McGregor, L. R. 23 Q. B. Div. 598, 615. 'Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669; s. C., 25 Cent. L. J. 587. See also Morton v. Metropolitan Life Ins. Co., 34 Hun, 367; affirmed in 103 N. Y. 645; Reed v. Home Sav. Bank, 130 Mass. 443; Krulevitz v. Eastern R. Co., 140 Mass. 573; s. C., 5 N. E. Rep. 500; Western News Co. v. Wilmarch, 33 Kan. 510; s. C., 6 Pac. Rep. 786; Samuels v. Evening Mail Ass'n, 9 Hun, 288; Howe Machine Co. v. Louder, 58 Ga. 64; Hawkins v. New Orleans Printing Co., 29 La. Ann. 134; Hewitt v. Pioneer Press Co., 23 Minn. 178; Turner v. Phoenix Ins. Co., 21 N. W. Rep. 326; Merrills v. Tariff Mfg. Co., 10 Conn. 384; Humes v. Knoxville, 1 Humph. 403; Illinois, etc. R. Co. v. Reedy, 17 Ill. 580; Hazen v. Boston Bridge Co., 2 Gray, 575; Bloodgood v. Mohawk, etc. R. Co., 18 Wend. 9; Goff v. Great Northern R. Co., 3 E. & E. 672; s. c., 30 L. J. Q. B. 140; Maund v. Monmouthshire Canal Co., 4 Man. & G. 452. "Another important legal proposition in the case is so clear upon principle, and so distinctly settled by authority, that nothing but confusion can flow from its discussion. It will bear no more than plain enumeration. A corporation is liable to the same extent and under the same circumstances as a natural person for the consequences of its wrongful acts, and will be held to respond, in a civil action at the suit of an injured party, for every grade and description of forcible, malicious or negligent tort or wrong which it commits, however foreign to its nature or beyond its granted powers the wrongful transaction or act may be. Life & Fire Ins. Co. v. Mechanics' Fire Ins. Co., 7 Wend. 31; Angell on Corp., §§ 382, 388. 391; Albert v. Savings Bank, 2 Maryl. Dec. 169; Goodspeed v. East Haddam Bank, 22 Conn. 541; Bissell v. Michigan Southern & Northern Indiana R. R. Co., 22 N. Y. 305, 309, per Selden, |