of the Typographical Union to the trades council that that union had withdrawn its indorsement from the Times, "in strict conformity with the lawful purposes and objects for which the said council was organized, all the organizations represented in the council, the individual members thereof, and their friends and sympathizers, did withhold their patronage from the said Newark Times, in a peaceable, quiet, orderly, and lawful manner." The resolutions of the unions admit that thereby the circulation of the paper has been considerably reduced. That the distribution of the circular and copy of the resolutions adopted by the various unions has been effective and damaging is also shown by the withdrawal of advertisements from the paper by Mr. Davis, Messrs. Spielman, Strack & Co., L. Bamberger & Co., and Hahne & Co. It is true that Mr. Byron, who was appointed by the trades council a member of a committee in regard to the controversy between the printers in the Times office and the proprietor, and the only member of the committee who acted as such, says that he saw these parties, but that at no time did he make any threat or intimidate or coerce any of the said advertisers or patrons of the Times, nor did he "even personally solicit or request any of them to take any advertising or patronage from the paper"; but some person (whether Mr. Byron or whoever he may have been can make no difference) left no less than four copies of the resolutions, purporting to have been passed by four different organizations, with Mr. Davis, an advertiser, and some one also left with other advertisers copies of the resolutions, and these resolutions expressly call upon persons to cease buying, handling, or advertising in the Times, and suggest that, even if they have contracts for advertisements, it will be better for them to leave the space entirely blank than to prejudice the thousands of dollars of trade which labor will be compelled to withhold so long as their advertisements appear, and such advertisers did withdraw their patronage, giving as their reasons the receipt of these papers and the intimation contained therein. It is objected that this is hearsay evidence, but it was the declaration of the party made at the time of giving the order, and in explanation thereof, and is competent in that connection.

It thus clearly appears that an injury to the complainant's business, in circulation and advertising, resulting from the acts of the defendants, comprising a large number of persons and associations acting in concert, has not only been inflicted, but threatens to be continued. Is this illegal on the part of the defendants? Not in the sense of being criminal, and punishable as such; for, in my judgment, the case does not, as seems to be assumed by some in similar cases, require an expression of opinion on that point, for two reasons: First. The jurisdiction of the criminal and civil remedies for acts the result of

a conspiracy spring from different sources; for while the statute, in the former, now requires an overt act, at common law the act of conspiring constituted the crime. On the other hand, the injury done intentionally, and without legal excuse, or maliciously, is the gist of the civil remedy. Second. And, as a consequence, while it is a short, proper, and effective way to dispose of a claim of defendants that their act was in the exercise of a legal right, to show that it was criminal, the jurisdiction of this court to interfere by injunction cannot be based on any such conclusion, but must arise from conditions which involve well-established grounds of equity juris liction. When, therefore, the question is here asked if causing injury to the complainant's business is illegal, it is meant, is it an actionable wrong? That is, has the complainant a remedy by civil action against the defendants therefor, or are the defendants privileged to do the acts charged, in the manner and under the circumstances complained of, even though the natural result thereof be an injury to complainant's business? On the solution of this question depends the claim of the defendants that they have acted within their legal rights.

No unprejudiced person at this day wishes to place any obstacle in the way of labor organizations conducting their operations within lawful limits. It is unfortunate that, despite the warning and counsel of accredited leaders, the reckless and revengeful among the members, with the vicious and lawless always to be found among the idle, so often take advantage of labor demonstrations to commit acts of violence against persons and property, and thus weaken the sympathy of the public with the system. Yet every one must acknowledge that organization has accomplished much in the past for the benefit of the workingman, and recognize its possibilities to secure to them, in the future, the enjoyment of other privileges. But, while engaged in this laudable purpose, those who give direction to affairs should not attempt to secure their ends by infringing the lawful rights of others. When they are accused of so doing, it is the province of the courts, when the question is properly presented, to define and protect the rights of those brought within their jurisdiction. In discharging this duty, judges can only decide on established principles and rules, and are not empowered to create rights or initiate new powers or privileges. That is a legislative, not a judicial, function. It would seem to be unneces sary to state such elementary truths, were it not that other views appear to be entertained by some. The defendants claim, and they are entitled to be credited with being sincere in the contention, that they believe they have, in all matters complained of, acted strictly within the lines of their legal rights. This position justifies us in assuming that if they had not believed so, and had not been satisfied they were correct in law, the acts chal

lenged would not have been committed, and, if now convinced they are wrong, will not again be attempted.

Are the defendants, then, privileged knowingly to inflict this injury on the complainants. 8 Harv. Law Rev. 1. A man's business is property. By the first section of the bill of rights of the constitution of New Jersey, the right of acquiring, possessing, and protecting property is classed, as a natural and inalienable right which all men have, with those of enjoying and defending life and liberty, and of pursuing and obtaining safety and happiness. This is an echo of Magna Charta, repeated in the Declaration of Independence. Mr. Justice Bradley, in the Slaughterhouse Cases, 16 Wall. 36, at page 116, says: "For the preservation, exercise, and enjoyment of these rights life, liberty, and the pursuit of happiness], the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right he cannot be a freeman. This right to choose one's calling is an essential part of that liberty which it is the object of the government to protect, and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed." Mr. Barr's business of publishing the paper, with the incidents of its circulation and advertising, was as much his property as were the type and presses upon which the paper was printed. A harmful interference with the circulation and with the advertising in his paper was therefore an injury to his property. It was Mr. Barr's personal right, without interference or dictation from any person or persons, to employ in the prosecution of his business such mechanical appliances as were safe and healthful, and to employ in the production of his paper such persons and lawful means as he might choose. It is said in Hilton v. Eckersley, 6 El. & Bl., at page 74: "It is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it [his business] on according to his own discretion and choice." Beatty, J., in Coeur, etc., Min. Co. v. Miners' Union, 51 Fed. 260, says: "Whatever enthusiasts may hope for, in this country every owner of property may work it as he will, by whom he pleases, at such wages and upon such terms as he can make; and every laborer may work or not, as he sees fit, for whom and at such wages as he pleases; and neither can dictate to the other how he shall use his own, whether of property, time, or skill." Sir William Earle, in his book entitled "The Law Relating to Trades Unions," which, Lord Esher has said, is a book more full of careful and accurate law than is to be found in many judgments, says, at page 13: These propositions assume that a person has a right to do as he chooses with his own, whether labor or capital, within the limit set by law; that a right involves a prohibition against the infringement thereof; and that

a prohibition involves a remedy for the violation thereof." At page 12: "Every person has a right under the law, as between him and his fellow subjects, to full freedom in disposing of his own labor or his own capital, according to his own will. It follows that every other person is subject to the correlative duty arising therefrom, and is prohibited from any obstruction of the fullest exercise of this right which can be made compatible with the exercise of similar rights by others. Every act causing an obstruction to another, in the exercise of the right, comprised within this description, done, not in the exercise of the actor's own right, but for the purpose of obstruction, would, if damage should be caused thereby to the party obstructed, be a violation of this prohibition; and the violation of this prohibition by a single person is a wrong, to be remedied either by action or indictment, as the case may be. It is equally wrong whether it be done by one or by many, subject to this observation: that a combination of many to do a wrong, in a matter where the public has an interest, is a substantive offense of conspiracy."

This freedom of business action lies at the foundation of all commercial and industrial enterprise. Men are willing to embark capital, time, and experience therein. because they can confidently assume that they will be able to control their affairs according to their own ideas, when the same are not in conflict with law. If this privilege is denied them, if the courts cannot protect them from interference by those who are not interested with them, if the management of business is to be taken from the owner and assumed by, it may be, irresponsible strangers, then we will have come to the time when capital will seek other than industrial channels for investment, when enterprise and development will be crippled, when interstate railroads, canals, and means of transportation will become dependent on the paternalism of the national government, and the factory and the workshop subject to the uncertain chances of co-operative systems. The acts of the defendants directly infringe upon the exercise of this right by Mr. Barr. True, explicitly in words, they recognize the right, and protest earnestly that they have no wish to interfere with him in the management of his business, with such means as he may select; but is it not perfectly apparent that the only purpose of the movement is to force him to abandon his determination to use plate matter in the make up of his newspaper? Certain members of Typographical Union No. 103 who were employés in his newspaper office abandoned his employment. This they had a perfect right to do under the law. No man can be required to work for another unless he so desires, and it is his right, outside of contractual duties, to cease an employment which is distasteful to him, and, within the limit authorized by the statute of 1883,

it is lawful for a number to combine to leave the service of their employer. If the defendants had stopped here, they would have been clearly within the exercise of their legal rights. But the members of the Typographical Union No. 103 were not content to stand on this right. They, through the Essex Trades Council, are affiliated with other unions, and aggregate a body in a single county of this state which boasts (and 1 have no doubt truly) of a purchasing power of $400,000 a week. The bare declaration by the Typographical Union that it no longer recognized the Newark Times was, according to Mr. Beckmeyer's affidavit, suffilcient, under this perfect organization, to render it incumbent upon every member of these different unions to withhold his patronage from it. Not only this, but by the passage of the resolutions mentioned by the different unions, and the distribution thereof among advertisers, a moral intimidation was brought to bear upon the latter to further cripple the paper, either by wholly withdrawing their advertisements, or by leaving spaces, a most effective method of calling attention to the fact that the paper was under the ban of organized labor. Why this action? It must have had a purpose. None of the different labor organizations, or the members thereof, except the Typographical Union No. 103, had or has any grievance against the complainant. Their action, in the language of the times, was purely sympathetic. As to the Typographical Union, its members had no complaint against Mr. Barr, except that he used certain appliances which were not acceptable to the union. He paid the wages fixed by, and employed only members of, the union. The withdrawal of certain of the members from his employment was solely because he chose to use plate matter interdicted by the union, and it is plain if the complainant would forego his own judgment in the management of his business in this regard, and comply with the wishes and determination of the Typographical Union with reference thereto, all matters being as they were, the whole difficulty would be at an end. To effect this purpose, therefore, the Typographical Union, through the trades council, enlisted the co-operation of the other organizations, in an attempt to so impair the success of the newspaper that the complainant would be forced to accept the alternative proposed, rather than sustain the loss.

We return to the question whether defendants' acts are actionable. Malicious injury to the business of another has long been held to give a right of action to the injured party. Garret v. Taylor, Cro. Jac. 567; Keeble v. Hickeringill, 11 East, 574; Gunter v. Astor, 4 Moore, 12, 10 E. C. L. 357; Lumley v. Gye, 2 El. & Bl. 216; Gregory v. Duke of Brunswick, 6 Madd. & G. 205; Young v. Hichens, 6 Q. B. 606; Temperton v. Russell (1893) 1 Q. B. 715; Carew v. Rutherford, 106

Mass. 1; Walker v. Cronin, 107 Mass. 555; Van Horn v. Van Horn, 52 N. J. Law, 281, 20 Atl. 485, affirmed 28 Atl. 669; Lucke v. Assembly (Md.) 26 Atl. 505; Curran v. Galen (Sup.) 22 N. Y. Supp. 826; Bradley v. Pierson, 148 Pa. St. 502, 24 Atl. 65; Ryan v. Brewing Co. (Sup.) 13 N. Y. Supp. G60; Moores v. Union, 23 Wkly. Cin. Law Bull. 48, 7 Ry. & Corp. Law J. 108; Delz v. Winfree (Tex. Sup.) 16 S. W. 111; Olive v. Van Patten (Tex. Civ. App.) 25 S. W. 428; Jackson v. Stanfield (Ind. Sup.) 36 N. E. 345; Railroad Co. v. Greenwood (Tex. Civ. App.) 21 S. W. 559; Chipley v. Atkinson, 23 Fla. 206, 1 South. 943; Haskins v. Royster, 70 N. C. 601; Bixby v. Dunlap, 56 N. H. 456, 22 Am. Rep. 475, note; Mapstrick v. Ramge, 9 Neb. 390, 2 N. W. 739.

In Carew ▾ Rutherford, 106 Mass. 1, Chief Justice Chapman says, at page 15: "Freedom is the policy of this country. But freedom does not imply a right in one person, either alone or in combination with others, to disturb or annoy another, either directly or indirectly, in his lawful business or occupation, or to threaten him with annoyance or injury, for the sake of compelling him to buy his peace." Mr. Justice Van Syckel in Van Horn v. Van Horn, 56 N. J. Law, 318, 28 Atl. 669, after reviewing the cases involving the recovery of damages in an action on the case as for a conspiracy, says, at page 523, 56 N. J. Law, and page 669, 28 Atl.: "The rule is to be deduced from these cases, and one which has the most ample support, is that, while a trader may lawfully engage in the sharpest competition with those in a like business by holding out extraordinary inducements, by representing his own wares to be better and cheaper than those of others, yet, when he oversteps that line, and commits an act with the malicious intent of inflicting injury upon his rival's business, his conduct is illegal, and, if damage results from it, the injured party is entitled to redress. Nor does it matter whether the wrongdoer effects his object by persuasion or by false representation. The courts look through the instrumentality or means used to the wrong perpetrated with the malicious intent, and base the right of action upon that." The right of action depends, then, not so much upon the nature of the act as upon the intent with which it is done, always assuming that injury has attended the doing of it. Judge Taft in Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 730, with reference to a condition similar to that presented here, says, at page 738: "Ordinarily, when such a combination of persons does not use violence, actual or threatened, to accomplish their purpose, it is difficult to point out with clearness the illegal means or end which makes the combination an unlawful conspiracy; for it is generally lawful for the combiners to withdraw their intercourse and its benefits from any person, and to announce their intention of doing so, and it is

equally lawful for the others, of their own motion, to do that which the combiners seek to compel them to do. Such combinations are said to be unlawful conspiracies, though the acts in themselves, and considered singly, are innocent, when the acts are done with malice, i. e. with the intention to injure another without lawful excuse,"-citing many authorities. In Bowen v. Hall, 6 Q. B. Div. 333, it is said: "If the persuasion be used for the indirect purpose of injuring the plaintiff, or of benefiting the defendant at the expense of the plaintiff, it is a malicious act, which is in law and in fact a wrong act, and therefore a wrongful act, and therefore an actionable act if injury ensues from it. Bowen, L. J., in Steamship Co. v. McGregor, 23 Q. B. Div. 608: "Now, intentionally to do that which is calculated, in the ordinary course of events, to damage, and which does in fact damage, another in that other person's property or trade, is actionable, if done without just cause or excuse. Such intentional action, when done without just cause or excuse, is what the law calls a malicious wrong." See, also, Temperton v. Russell, supra.

This renders necessary an inquiry as to the intent of the defendants, to ascertain if the case falls within the class in which it is held that a malicious motive in the defendant may make an act which would not be wrongful without the malice a wrongful act when done with malice. Steamship Co. v. McGregor, 23 Q. B. Div. 598-608. From the authorities, the test is, has the injury been inflicted intentionally and without legal excuse? When we speak, in this connection, of an act done with a malicious motive, it does not necessarily imply that the defendants were actuated in their proceedings by spite or malice against the complainant Mr. Barr, in the sense that their motive was to injure him personally, but that they desired to injure him in his business in order to force him not to do what he had a perfect right to do. Temperton v. Russell, supra. In this case the defendants have, I doubt not, no personal spite against Mr. Barr individually, and no desire to do him a personal injury. Nor do I suppose they wish to permanently injure his enterprise, for they undoubtedly want reemployment for those who left him. They only wish, by crippling his business, to compel him to accede to their views as to materials he shall use in the make up of his paper. They in fact claim that they had no intention to injure the business of the complainant, and that their only desire was for the protection of themselves. If the injury which has been sustained, or which is threatened, is not only the natural, but the inevitable, consequence of the defendants' acts, it is without effect for them to disclaim the intention to injure. It is folly for a man who deliberately thrusts a firebrand into a rick of hay to declare, after it has been destroyed, that he did not intend to burn it.

If a per

son deliberately discharges a loaded pistol at point-blank range, directly at the person of another, it is useless for him to say that he did not intend to maim his victim. The law, as a rule, presumes that a person intends the natural result of his act; and this is true with reference to civil as well as crim-. inal acts. "Courts are bound to look at things just as they are, to pass on facts just as they are developed, to treat the conduct of men just as it is, and to impute to them that intention which their acts and their conduct disclose was their intention." U. S. v. Kane, 23 Fed. 750. What other result than injury could ensue to the business of the Newark Times, published and circulated in Newark and its vicinity, if organizations of individuals representing there a purchasing power of $400,000 a week, each and every one not only determined not to patronize the paper or to buy it, but, by resolutions passed in their various organizations, call upon the trading community to cease advertising in it, with implied threats that the appearance of an advertisement by a tradesman in the paper would be a warning to the members of the organizations to avoid trading with such persons? Loss of business is the only natural result to be expected from such a condition of affairs, and, if continued, the failure of the enterprise would seem to be inevitable. That this is not an unfounded fear, we have it proved and admitted by the resolutions of the unions that the property of the complainant has already been injured by the acts of the defendants. The next inquiry is, have the defendants a legal excuse for doing the acts which have occasioned and threaten further damage to the complainant's business? They have set on foot, and to a certain extent have made effective, not only by organized labor, but by the public, a "boycott" of the complainant's newspaper. The circular issued by the trades council calls upon all friends of labor to "boycott" it,-to cease buying, cease handling, cease advertising in it. And herein this case differs from Mayer v. Association, 47 N. J. Eq. 519, 20 Atl. 492, so often referred to in the argument. While the bill in that case charged the defendants with the intention to boycott the complainant, there was no evidence to show any act committed or contemplated not fairly within the provisions of the act of 1883 (Supp. Revision, p. 774, § 30), which made it lawful "for any two or more persons to unite, combine or bind themselves, by oath, covenant, agreement, alliance or otherwise, to persuade, advise or encourage, by peaceable means, any person or persons to enter into any combination for or against leaving or entering into the employment of any person or persons or corporation." While it is entirely true, as is said in that opinion, that the policy of the law with reference to such combinations, formed for the purposes specified in the act,-namely, those whose object it is, by peaceable means, to persuade, advise, or encourage persons to

enter into a combination for or against leaving or entering into the employment of another, it left still subject to the inhibition of law every other illegal combination. It did not legalize a conspiracy to injure a man's business, to be effected by means other than those of a combination to enter into or leave his employment; and a combination to injure a man in his business, by a concerted action on the part of an immense number of persons to cease dealing with him, and to persuade others to cease dealing with him, by threats to withdraw their custom from them, for the purpose of obliging him to accede to their demands, or, in other words, to boycott him, has not been made lawful by the statute. It is claimed by the affidavit of Mr. Beckmeyer that the term "boycott," as used in the circular and publications, has not the offensive signification sought to be placed upon it by the complainant's bill; "that it does not in any way mean, indicate, or imply any threats, violence, intimidation, or coercive action on the part of the said defendants, or any or either of them, or the members of any such organization; that such word has a technical meaning in the said labor organizations, and simply expresses and implies that the members of the said organizations should simply refrain from trading or dealing with those persons who oppose such organizations by their own actings and doings; that the use of the word is not intended, and does not in fact encourage, advise, or urge in any manner, whether violent or otherwise, attacks upon or against the said newspaper, or any person or business, but merely advises and encourages those who have earned their money, by giving their services and labor, to spend such money among those who are friendly to fair trade and fair dealings, and are in sympathy with the efforts of organized labor to advance its own interests and welfare by peaceable, proper, and lawful means, and not otherwise"; and, further, "that of his own knowledge, obtained from long intercourse and association with the various labor organizations, there is nothing in the use of the word "boycott" calculated or intended to intimidate or incite violence, or induce to coercive measures, or indicate any threat, and that its meaning is universally understood in the said organizations to have no other or greater effect than above stated," from which it is to be gathered that the use of the word "boycott" in the publicacations, as applied to the Times, would be regarded by the members of the various unions to mean only that they should refrain from trading or dealing with the complainant, and with those who oppose the organizations in their actions and doings with reference to the complainant. I do not see that this changes the character of the injury, but, even if it does so far as the members of the organizations are concerned, the difficulty is that these communications were addressed to the public, and indiscriminately circulated.

They were not intended only for members of the order by whom a technical signification would be given to the word “boycott,” but to the general public, who would read them, and give the word its accepted meaning. “Boycott" is defined in the Century Dictionary as “an organized attempt to coerce a person or party into compliance with some demand, by combining to abstain, or compel others to abstain, from having any business or social relations with him or it; an organized persecution of a person or company, as a means of coercion or intimidation, or of retaliation for some act, or refusal to act in a particular way." In 2 Am. & Eng. Enc. Law, p. 512, quoting Com. v. Shelton, 11 Va. Law J. 329: As "a conspiracy formed and intended directly or indirectly to prevent the carrying on of any lawful business, or to injure the business of any one by wrongfully preventing those who would be customers from buying anything from, or employing the representatives of, said business, by threats, intimidation, or other forcible means." In Anderson's Law Dictionary: "A combination between persons to suspend or discontinue dealings or patronage with another person or persons, because of refusal to comply with a request of him or them. The purpose is to constrain acquiescence or to force submission on the part of the individual who, by noncompliance with the demand, has rendered himself obnoxious to the immediate parties, and perhaps to their personal and fraternal associates." In Brace v. Evans, 3 Ry. & Corp. Law J. 561, it is said: "The word in itself implies a threat. In popular acceptation, it is an organized effort to exclude a person from business relations with others by persuasion, intimidation, and other acts, which tend to violence, and they coerce him, through fear of resulting injury, to submit to dictation in the management of his affairs." Judge Taft in Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. 746, says: "As usually understood, a 'boycott' is a combination of many to cause a loss to one person, by coercing others, against their will, to withdraw from him their beneficial business intercourse, through threats that, unless those others do so, the many will cause similar loss to them."

But the defendants insist, and counsel vigorously urge, that this particular boycott is not open to such adverse criticism, because "there was no violence, intimidation, coercion, or threats used, and that everything was done in a peaceful and orderly manner." How far is this claim borne out by the facts? It is true there was no public disturbance, no physical injury, no direct threats of personal violence, or of actual attack on or destruction of tangible property, as a means of intimidation or coercion. Force and violence, however, while they may enter largely into the question in a criminal prosecution, are not necessary factors in the right to a civil remedy. But, even in criminal law, I do not understand that intimidation, even when a stat