settlement of any dispute, for none had existence." (Lord Brampton, p. 528, and see remarks of Lord MacNaghten, p. 511.) This language seems to leave room for the inference that there are conditions under which a boycott by employees might be justified. So Allen v. Flood, App. Cas. (1898) 1, was distinguished by Lord Shand (p. 514), as a case where the purpose of the defendant was to promote his own trade interest. That the acts here involved were not "in contemplation or furtherance of a trade dispute between employers and workmen❞ within the meaning of the Conspiracy & Protection of Property Act of 1875, see pp. 511, 541.

It seems clear that the term maliciously, as used in the finding above referred to, was understood as having reference to malice in law rather than to malice in fact, that is, merely to an act done in the absence of any relation of which the act was a natural incident or outgrowth. Thus it was said by Lord Shand (p. 515): "The defendants have no such defense as legitimate trade competition. Their acts were wrongful and malicious in the sense found by the jury, that is to say, they acted by conspiracy not for any purpose of advancing their own interests as workmen, but for the sole purpose of injuring the plaintiff in his trade." With reference to the meaning of the words "wrongfully and maliciously" the jury had been charged (pp. 500, 512), that "they had to consider whether the intent and actions of the defendants went beyond the limits which would not be actionable, namely, securing

or advancing their own interests or those of their trade by reasonable means, including lawful combination, or whether their acts as proved were intended and calculated to injure the plaintiff in his trade through a combination and with a common purpose to prevent the free action of his customers and servants in dealing with him, and with the effect of actually injuring him as distinguished from acts legitimately done to secure or advance their own interests." See elaborate discussion of effect of Quinn v. Leathem and of Allen v. Flood in Booth v. Burgess, 65 Atl. 226, 234 (Ct. Ch. N. J., 1906).

Similarly in Gray v. Building Trades Council, 91 Minn. 171; 97 N. W. 663; 63 L. R. A. 753; 103 Am. St. Rep. 477 (1903), an injunction was allowed to employers against a boycott by a labor union, or rather association composed of delegates from different unions, instituted for the purpose of compelling the employment of union labor only, there being no contention as to wages.

An injunction was allowed under like conditions in Loewe v. California State Federation of Labor, 139 Fed. 71 (C. C. Cal., 1905), where the complainants were extensively engaged in manufacturing and the defendants were large labor organizations, comprised in the American Federation of Labor "having jurisdiction over all classes of labor throughout the United States, and having in the neighborhood of 2,000,000 members." Loewe v. California State Federation of Labor was applied in Seattle Brewing &

Malting Co. v. Hansen, 144 Fed. 1011 (C. C. Cal., 1905). So in Lohse Patent Door Co. v. Fuelle, 114 S. W. 997 (Supm. Ct. Mo., 1908), where such was the purpose of the boycott, an injunction was allowed against the action of unions in prohibiting their members from working for builders, contractors and others using materials manufactured by the plaintiff.

It was, however, held not illegal in Gray v. Building Trades Council, to notify customers or prospective customers, that such employers were "unfair" (91 Minn. 184; 97 N. W. 668; 63 L. R. A. 760), it not appearing that such notification had any special significance or portended injury or was intended as a threat or intimidation. See, however, writ of injunction in Loewe v. California State Federation of Labor.

In Jensen v. Cooks' & Waiters' Union, 39 Wash. 531; 81 Pac. 1069; 4 L. R. A. N. S. 302 (1905), the acts held illegal included the congregation of pickets about the entrance to the employer's place of business, who induced persons to refrain from patronizing him.

In People v. McFarlin, 43 Misc. 591; 89 N. Y. Suppl. 52 (Monroe County Ct., 1904), where, as expressly stated, there was no violence or threat to do any violent act, such a boycott, under like conditions, was held within the prohibition of N. Y. Penal Code, § 168, subd. 5, against conspiring "to prevent another from exercising a lawful trade or calling," and an indictment therefor was sustained. Here, too, the prohibition of § 168, subd. 6, against conspiring "to commit

any act injurious to trade or commerce" was held applicable to the action of the members of the unions (who comprised in their membership by far the larger part of those employed in Rochester in carpenter and joiner work), in threatening employers engaged in the business of building, with a boycott unless they agreed to purchase materials only of such manufacturers as had received the approval of the union. This, on the ground that the members of the union would thereby be in a position "materially to limit and restrain the entire business of construction of buildings and the manufacture of woodworking material in Rochester and to control the supply as well as the price of labor in those factories and on those buildings." Reference was also made in this connection to the anti-trust act (L. 1899, c. 690; see § 224).

For instances of injunctions allowed against boycotts instituted for the purpose of compelling employment of union labor only, see Purvis v. Local No. 500, United Brotherhood of Carpenters & Joiners, 214 Pa. St. 348; 63 Atl. 585; 12 L. R. A. N. S. 642; 112 Am. St. Rep. 757 (1906; see as to effect of act of June 16, 1891, P. L. 300); George Jonas Glass Co. v. Glass Bottle Blowers' Assoc., 66 Atl. 953 (Ct. Ch. N. J., 1907).

In Moores v. Bricklayers' Union, 7 Ry. & Corp. L. J. 108 (Super. Ct. Cin., 1889), an action was sustained against a labor union and members thereof, for damage consisting of withdrawal of custom caused by sending to the plaintiff's customers notice that members of the

union would not use material supplied by the plaintiff, the motive of such action being the refusal of the plaintiff to accede to the defendants' request to refuse to deal with persons (P. Bros.) with whom, as employees, they had a controversy. Here we submit that the real question was whether the relation between the defendants and P. Bros, was not such as to justify the defendants in using the boycott as a weapon. In this view the following considerations advanced by the court seem to us to be entirely irrelevant: "The dealings between P. Bros. and their material-men, or between such material-men and their customers, had not the remotest natural connection either with defendants' wages or their other terms of employment. There was no competition or possible contractual relation between plaintiffs and defendants, where their interests were naturally opposed. The right of the plaintiffs to sell their material was not one which in its exercise brought them into legitimate conflict with the right of defendants to dispose of their labor as they chose."

In Old Dominion Steamship Co. v. McKenna, 30 Fed. 48 (C. C. N. Y., 1887), the boycott was by what was known as the "Executive Board of the Ocean Association of the Longshoremen's Union." It would seem, though it does not distinctly so appear, that the employees in whose behalf the boycott was instituted were members thereof, but the court said that the defendants were "not in plaintiff's employ," and acted "without any legal justification, so far as appears,-a mere

dispute about wages, the merits of which are not stated, not being any legal justification.” So in Barr v. Essex Trades Council, 53 N. J. Eq. 101, 115, 136; 30 Atl. 881, 886, 894 (1894), an injunction was allowed on complaint of the proprietors of a newspaper (the "Newark Times") against a boycott by a number of labor unions representing different trades in Newark, and affiliated in a society or representative body. The members of only one of these unions had any grievance against the complainant, the action of the others being sympathetic. The injunction was one "restraining them from distributing or circulating any circulars, printed resolutions, bulletins or other publications containing appeals or threats against the Newark Times or the complainants, its publishers, with the design and tending to interfere with their business in publishing said paper, and from making any threats or using any intimidation to the dealers or advertisers in such newspaper, tending to cause them to withdraw their business from such newspaper." The grievance against the Times was its refusal to discontinue the use of "plate matter" for its paper (53 N. J. Eq. 106; 30 Atl. 883). Such boycott was held not legalized by the New Jersey act of 1883. See § 65; also Martin v. McFall, 65 N. J. Eq. 91; 55 Atl. 465 (1903). So in Casey v. Cincinnati Typographical Union, 45 Fed. 135; 12 L. R. A. 193 (C. C. Ohio, 1891), an injunction was granted under similar conditions, the grievance being the refusal of the proprietor to "unionize" his office, that is to

say, publish his paper according to the customs and regulations laid down and prescribed by the union, and pay wages at the rates fixed by it, and discharge all persons not members thereof. In Matthews v. Shankland, 25 Misc. 604; 56 N. Y. Suppl. 123 (Supm. Ct., Sp. T., 1898), Casey v. Cincinnati Typographical Union was followed on granting an injunction under similar conditions. So in Hopkins v. Oxley Stave Co., 83 Fed. 912; 28 C. C. A. 99 (8th C., 1897), members of labor organizations (lodges of the "Coopers' International Union" and the "Trades Assembly of Kansas City") were enjoined from conspiring to compel a corporation engaged in the manufacture of barrels and casks for packing purposes, to abandon the use of hooping machines, this object to be accomplished by dissuading the customers of the corporation from buying machine-hooped barrels and casks, such customers to be so dissuaded through fear, inspired by concerted action of the two organizations, that the members of all the labor organizations throughout the country, would be induced not to purchase any commodity that might be packed in such machinehooped barrels or casks. The dissenting opinion of Caldwell, J., though too declamatory in style for a judicial opinion, nevertheless seems to us to furnish by far the better reason, and is rich in suggestion. The court said (83 Fed. 921; 28 C. C. A. 108): "With one exception the members of the combination were not in the employ of the plaintiff company"; and it was also stated that no reduction of

wages had been threatened by the company. To somewhat similar effect, see Rocky Mountain Bell Tel. Co. v. Montana Federation of Labor, 156 Fed. 809 (C. C. Mont., 1907). In Shine v. Fox, 156 Fed. 357; 86 C. C. A. 311 (8th C., 1907), Hopkins v. Oxley Stave Co. was followed as "indistinguishable."

In Thomas v. Cincinnati, N. O. & T. P. Ry. Co., 62 Fed. 803, 807 (C. C. Ohio, 1894), the plan of the boycott declared illegal was thus set forth: "Pullman cars are used on a large majority of the railways of the country. The members of the American Railway Union whose duty it was to handle Pullman cars on such railways were to refuse to do so, with the hope that the railway companies, fearing a strike, would decline further to haul them in their trains, and inflict a great pecuniary injury upon the Pullman Company. In case the railway companies failed to yield to the demand, every effort was to be made to tie up and cripple the doing of any business whatever by them, and particular attention was to be directed to the freight traffic, which it was known was their chief source of revenue. It was to be accomplished, not only by the then members of the union, but also by procuring, through persuasion and appeal, all employees not members, either to join the union or to strike without joining, by guaranteeing that, if they would strike, the union would not allow one of its members to return to work until they also were restored." The decision might, it would seem, have been sustained solely on the ground of the illegal

ity of inducing employees to quit their employment. See § 65. In this view it was unnecessary to inquire into the intent of the act of inducing, which was to induce the employer to refuse to deal with, in other words, to boycott, a third person. If, according to the authorities just considered, the relation of membership in the same labor organization is an insufficient basis for a boycott, a fortiori was the boycott illegal in that case, as it was instituted in behalf of persons (employees of the Pullman Palace Car Company) who were not members of the Railway Union. This decision was applied to the same general state of facts in U. S. v. Cassidy, 67 Fed. 698, 763 (D. C. Cal., 1895). In Brace v. Evans, 3 Ry. & Corp. L. J. 561 (Allegheny Co., Pa., Com. Pl., 1888), was held illegal a boycott instituted by persons not in the plaintiffs' employ, by reason of the failure of the plaintiffs to reinstate certain persons in employment as demanded. The boycott was held not to be legalized by Pennsylvania legislation of 1869, 1872, 1876, except by relieving the persons committing the acts specified, from the penalties of crime.

In Beck v. Railway Teamsters' Protective Union, 118 Mich. 497; 77 N. W. 13; 42 L. R. A. 407; 74 Am. St. Rep. 421 (1898), was involved the legality of the distribution by members of labor unions, in a controversy with employers, of the following circular: "Boycott J. B. & Son's Feed Mills; To Organized La

44 See decisions cited in § 62; article in 11 Yale Law Jour. 153

bor and Their Friends: The above firm has broken faith with the representatives of the Trades Council and the Railway Teamsters' Union, by annulling an agreement entered into with the above organizations in July last, that none but union men should be employed by that firm thereafter. They have now discharged their union men, and hired non-union men to take their places. We therefore ask all people who believe in living wages and fair treatment of employees to leave this firm and their product severely alone. Boycott B. & Son. By order of Detroit Trades Council." The court below, while enjoining certain acts by such members of the unions, very properly, in our view, excepted from the operation of the injunction "the peaceable distribution of circulars" (such as described above), "or circulars similar thereto, to customers of said B. & Sons, or to the public in the vicinity, but not in front of the mill or premises of B. & Sons, or inhibiting any peaceful appeal to refrain from their business relations with said B. & Sons." So was excepted "threatening to boycott except by violence, or boycotting by peaceful means, or the distribution of said boycott circulars, to said customers or to the public, or threatening to injure, affect or ruin the business of said customers of said B. & Sons or others, by any effort to compel or induce said customers or others to refrain from business relations with said B. & Sons, which effort shall not be accompanied with

(1901-2) on "Solidarity of Interest as Basis of Legality of Boycotting."