The law of conspiracy, which is traced down, in Comyn’s Digest, and after him in the notes to Saunders’ Reports, and in several English judgments as well as in the judgment in Kearney v. Lloyd, 26 L. R. Ir. 268, from the obsolete writ of conspiracy, through the action on the case in the nature of conspiracy, with their several distinctions, and which was originally confined to false accusations of crime, has widened out by the expansion of social conditions and the increase of wickedness, until it embraces in its modern extent every kind of wrong committed by several against another, and has been applied in a multitude of instances where the law gives no remedy against an individual, which was the utmost that was determined by Allen v. Flood, [1898] A. C. 1.
... a malicious design to deprive a person of his livelihood, the malice being compounded both of the object, and the want of any just motive of personal right. For no one contended at any time that the object of drawing all persons into the pen of a trade union, was a ground of privilege like that which excused the act in The Mogul Steamship Co. v. M’Gregor, [1892] A. C. 25, where the defendants merely waged a war of rivalry in their trade. However, if “civil wrong” be understood in the sense of actionable wrong, the rule, so confined, is contrary to a multitude of cases, in which the action was adopted, and in which nevertheless it is most certain there was no legal remedy against a single defendant, even before the decision of Allen v. Flood, [1898] A. C. 1. Indeed, that is the express and special use of the action of conspiracy, without which it would find no real place in practice, though it is not impossible such an action could be maintained for what is actionable also in the case of an individual.
There was in this case a direct design to injure the plaintiff. That was malice alone. The act was not done in exercise of any right the defendants possessed. It was done through the agency of another person by improperly influencing his will; and that will was moved solely by their act, and would not otherwise have been exercised. It was done by numbers, to which the law attaches a new and altered quality of more formidable wrong—the foundation of conspiracy—which is a difference in things themselves that can never be taken out of the law, civil or criminal, whilst there is a difference between a man and an army. Lastly, there was the damage which was so unjust as itself to make the act malicious.
For the case put, of a person maliciously digging on his own land, and draining the well, of his neighbor, is no exception, and demonstrates the weakness of the argument which is founded on it. In that case the act could not be prohibited without interfering with the inherent right of property; and the right of the neighbor was subject to the right of the contiguous owner. The two rights were equal. The right absorbed the malice, and could not otherwise coexist with it. Here the defendants possessed no right which they could not otherwise exercise; and the right of the plaintiff to carry on his trade was not subject to any right in them. No right of interference with others, which the law could recognize, could attach to the aggressions of a trade union—to their plans for the revision of the relations between employers and employed—to proceedings conducting, by inevitable sequence, to what was lately expressed, with no less energy than the weight attaching to the author, as “the destructive demands of a class upon the fundamental laws on which civil order rests.”
Sir P. O’Brien, L. C. J., and Andrews, J., delivered opinions in favor of denying defendants’ motion.
Palles, C. B., dissented, because he felt himself “coerced by the judgment of the House of Lords in Allen v. Flood....”
The defendants’ motion was refused with costs.