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is a proper subject of consideration. It does reasonable and natural way is there than to not necessarily follow, bowever, because we give those with wbom we deal more than any cause some one to change his trade or busi- one else would give them in exchange for ness relations with a third person with the what they bave to offer us? A tradesman knowledge on our part that such acts will may persuade customers to deal with him by certainly cause injury to the third person, reducing the price at which he sells his comthat our motive is wrong in law. Such in- modities, or one who wishes to contract his jurious acts thougb prima facie wrong may labor or services by reducing the price at be susceptible of explanation.? One might which he will work. We know of no limit induce an employee to leave his employer be- placed upon competition which consists of sesuch employment is unhealthy or immoral, curing customers by selling commodities or induce a customer to quit trading with a cheap or even by giving them away or by certain grocer because he sells unwholesome performing services for a less price than food or for many other reasons, which we others charge. Apparent injustice is often presume the law would consider proper and done to individuals and injury to society justifiable motives. If we say that influenc-along this line, however, without legal liaing another in the conduct of his business to bility. Large trusts and combinations often the injury of a third person is illegal if done crowd out smaller concerns in this manner. maliciously, we are dependent upon the de- The trust finds some outside firm selling comfinition of malice. The proposition is not as modities in a certain place. Immediately the simple as it seems. Malice is perhaps best trust cuts prices so that that line of business defined as the intent to injure another with- can be carried on in that place only at a loss. out right or justifiable cause.8 In other 'The outside firm bas not sufficient capital to words certain acts are malicious because they carry on the fight, and must give up busiare unlawful and unlawful because they are
When it is out of the way the trust malicious. Our definition leaves us reason- can charge whatever price it pleases. Such ing in a circle. We are left without any a proceeding has two features that are observiceable general rule, and must depend jectionable in law. It contemplates driving largely upon the policy of the law in differing other tradesmen whose rights should be ent classes of cases to determine whether or respected out of the business, and it has in not acts are right and justifiable. “Com- view a fixing of prices by stifling competition. petition,” it is said in a well known leading | Yet we know no authority that holds that a case, a "exists when two or more persons seek reduction in price of commodities or charge to possess or to enjoy the same thing.” “It for services for the direct purpose of securfollows,” says the same authority, that the ing and retaining the trade or patronage of success of one must be the failure of another, those who may wish to purchase those comand no principle of law enables us to in- modities or employ such labor is illegal, alterfere with or to moderate that success though such reduction may be a part of the or that failure so long as it is due to mere plan to drive others out of that business, and competition.” In every day business that in that manner secure a monopoly of the which different ones, for the most part, business and raise the prices. This phase of compete for and strive to possess is the the question was quite thoroughly discussed trade or patronage of others; i. e., the in The Mogul Steamship Co. v. McGregor, privilege of doing just what the name in- Gow & Co.," the opinions filed in the report dicates, “trading" or exchanging. What of which case contains a most valuable dismeans can we lawfully employ to induce peo- cussion of the limits and privileges of comple to exchange commodities or deal with us petition. In this case a certain number of rather than with some one else? What more steamship companies combined to control
freight rates from certain Chinese ports to ? Payne v. W. A. R. R. Co., 81 Tenn. 507.
England, and to compel all rival ships to 8 State v. Coella (Wash.), 28 Pac. Rep. 28; Lovett v. State, 11 South. Rep. 550; Territory v. Egan, 3 Dak.
abandon carrying freight between these 119; Buckley v. Knapp, 48 Mo. 152; Michell v. Wall, 111 Mass. 498; Tuttle v. Bishop, 30 Conn. 80.
10 Mogul Steamship Co. v. McGregor, Gow & Co.. • Mogul Steamship Co. v. McGregor, Gow & Co., 23 23 L. R. (Q. B. D.) 598. L. R. (Q. B. D.) 598.
11 23 L. R. (Q. B. D.) 598.
points. Lord Esher in a dissenting opinion him out of the business with no purpose after says:
"It follows that the act of the de- we have secured it, of retaining the trade, fendants in lowering their freights far be- and with no desire for it except as a means yond a lowering for any purpose of trade-of injuring our rival.
of injuring our rival. The law does not recthat is to say, so low that if they continued ognize the right of any one to deliberately it tbey themselves could not carry on trade- make the destruction of another his means of was not an act done in the exercise of their
advantage. If injury to another follows as own free right to trade, but was an act done an incident to my lawful attempt to secure evidently for the purpose of interfering with,
trade advantage the law will not hold me liai. e., with intent to interfere with, the ble, even if such injury must have been anplaintiff's right to a free course of trade, ticipated; but it in my plan trade advantage and was, therefore, a wrongful act as becomes the incident which is to be secured against the plaintiffs' right; and as injury somehow through the destruction of another ensued to the plaintiffs, they had also
as a necessary means, the law will bold me in respect of such act a right of action
liable. The following illustration will indi. against the defendants.” The n:ajority of
cate one way in wbich this question is frethe court, however, decided against this con- quently presented: Tradesmen in some partention, and in so doing followed the greater ticular line of business combine to control weight of authority found in the decisions.
prices. Some one in that line of business The opinion of the majority of the court refuses to join the organization or be bound treated the subject mentioned above as fol
by its prices, and sells or works for a less lows: "To say that a man is to trade freely price greatly to the injury, perhaps, of all but that he is to stop short of any act which in that line of business, because it lowers the is calculated to harm other trades men and
price for all. Suppose now, in order to break which is designed to attract business to his
up the business of this obstinate or independown shop would be a strange and impossible
ent one, or in order to coerce him to raise counsel of perfection. But we were told that his prices, the combination at a loss to itself competition ceases to be the lawful exercise of
and admittedly with no intention of securing trade and so to be a lawful excuse for what
the trade of the one whom it is seeking to will harm another if carried to a length which
injure, but solely to injure or coerce biu, is not fair or reasonable. The offering of
opens up an office or store next door and reduced rates by the defendants in the pres
cuts prices away below cost, and thus ent case is said to have been "unfair."
drives the one
whom they seek to in"And what is to be the definition of a 'fair jure out of business.
We beliere freight? It is said that it ought to be a nor- such actions would be illegal and that mal rate of freight such as is reasonably re- damages could be recovered. We know of munerative to the sbipowner. But over no authorities directly upon this point, but if what period of time is the average of this such a case were presented to the court and reasonable remunerativeness to be calculated ?
it were clearly shown that this cut rate was All commercial men with capital are ac- intended to injure and destroy the business quainted with the ordinary expedient of sow- of another and not to secure another's ing one year a crop of apparently unfruitful
trade, we believe the court would not be prices in order by driving competition away bound by the privileges of trade compe to reap a fuller harvest of profit in the fu
tition, for it would not be a competiture." We may gather from the majority tion for trade. The law will not folowi decision in this case that where trade is the
transaction through two or more subject of competition we may secure such order to find the intended benefit when s trade in any way which increases that which
third person is injured, and will not allows? we give or decreases that wbich we demand indirect or remote trade advantage to escuse in exchange whether it be labor, money or such injury. We are perhaps most likely to merchandise. But the trade for its own sake be confused and misled in this particular
, must be the object sought. We do not be- | namely, to think because the law permits us lieve we are permitted to go to the same length
for the most part, as we have noticed, to catia in securing the trade of another solely to drive
duct our own trade relations, in whateret
way we think will most benefit our trade or the court says: "Merely to persuade the business that the law is especially interested person to break his contract may not be in our particular trade, and will allow us to wrongful in law or in fact, but if the persuasecure trade advantage, or do that which we sion be used for the direct purpose of injurexpect will secure trade advantage, by indi- | ing the plaintiff, it is actionable if injury enrect means and in a roundabout way regard- sues from it.” The malicious motive and less of the rights of others. The law has no resultant injury constitute the cause of acsuch inclination. This point is quite clearly tion. The particular means by which the brought out in the case of Delz v. Winfree result is accomplished is of secondary imquoted above. The several dealers in beef portance.
WILLIAM H. TUTTLE. cattle could combine and agree that they Chicago, Ill. would not sell to a certain butcher, al. though their motive in so doing was for coercion and with intention to cause injury
ATTACHMENT-INTERVENTION-BURDEN OF to the butcher, but the law did not permit
PROOF them by inducing another dealer also to re
DANIEL V. SOLOMON. fuse to sell to the butcher, to accomplish by indirection the same result which they would
Court of Appeals of the District of Columbia. have been permitted to accomplish through The right of junior attacbment or execution credit. their own acts directly. The case of Curran ors, to intervene in an attachment ruit, and deny the v. Galen,12 cited above, affords another illus
grounds of attachment set out in the plaintiff's affi.
davit, exists independently of statutory provisions, tration. In this case defendants bad pro
An execution issued by a justice of the peace and cured the discharge of the plaintiff from serv- placed in the hands of a constable, creates such an in. ice because he did not belong to the associa- terest in goods of the execution debtor, seized under
a prior attachment, as will entitle the execution tion of which they were members, and the
creditor to intervene in the attachment suit, though plaintiff brought suit for damages sustained
there has been, and can be, no actual levy of the ex through loss of service. The court said: ecution on such goods. “The defepdants had a perfect right, as we
The petition of an intervening creditor in an attach.
ment should aver that the debtor has no other prop. have seen, to unite with this or any other
erty than that attached, 10 which the intervener can labor organization, but they had no right to resort for satisfaction of his claim; but the absence of insist that others should do so, and when
such an averment, ot having been taken advantage
of in the court below, cannot be availed of op appeal. they make plaintiff's refusal to join it a pre
Upon the intervention of junior attachment or exe text for depriving him of bis right to labor
cution creditors in an attachment suit, denying the they interfere with his personal liberty in a grounds of attachment set out in the affidavit, the manner and to an extent the law will not
burden is on the plaintiff to prove the existence of
those grounds as stated; but it fraud and collusion countenance, and their action, instead of of.
between the original parties be alleged, the burden fering a protection to, operates as a restraint will be upon the interveners to prove that fact. upon 'honest labor.'” It seems quite clear
MR. JUSTICE SHEPARD delivered the opinion from the authorities, 13 that if one maliciously
of the court: induces another to terminate or modify his The appellants, Daniel and Blumenthal, have business relations with a third person to the appealed from a judgment of the Supreme Court injury of such third person, it is not neces.
of the District of Columbia, dismissing a petition
of intervention filed by them in an action of debt sary that the one thus influencing the other should use either force, fraud, threats or in
depending in said court between Elias Solomon
as plaintiff, and Stern and Livingston as defendtimidations in order to render him liable for
ants. Solomon commenced said suit December damages done to the third party. The ex- 26, 1896, upon two notes amounting together to pressions used by the authorities are "per
the sum of $1,400. At the same time he sued out suading," "procuring,” "enticing," "influ
a writ of attachment against them on the ground encing” and like terms.
that they had assigned, disposed of and secreted, In Bowen v. Hall,
and were about to assign, dispose of and secrete,
their property, with intent to hinder, delay and 12 22 N. Y. S. 826. Ante f. 334. 13 Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6
defraud their creditors. The writ of attachment L. R. (Q. B. D.) 333; Carew v. Rutherford, 106 Mass.
was executed by the marshal by seizing the goods 1; Walker v. Cronin, 107 Mass. 555; Chipley v. Atkin.
of the defendants. son, 1 South. Rep. 934; Delz v. Wipfree, 16 S. W. Rep.
On January 21, 1897, appellants filed their plea 111.
of intervention in which they alleged: (1) That
they had obtained a judgment against defendants for the sum of $162.50, besides costs, in the court of a justice of the peace of said district, and that a fi. fa. therein had been issued and delivered to a constable for execution. (2) That no real ground existed for plaintiff's attachment. (3) That the affidavit does not state facts justifying the attachment. (4) That defendants bave done all in their power to expedite a judgment in favor of the plaintiff, and have colluded, and are now colluding, with him for the purpose of enabling him to obtain an unlawful preference over the interveners and other creditors. (5) They pray to be allowed to contest the sufficiency of the affidavits of the plaintiff; to traverse the grounds of attachment stated in said affidavits, and to have an issue as to the existence of said grounds of attachment and the validity thereof.
The petition was sworn to and accompanied by a separate affidavit specifically denying that, at the time of suing out plaintiff's attachment the defendants had transferred and secreted, or were about to transfer and secrete, their goods for the purpose of hindering, delaying or defrauding the plaintiffs; and reiterating the charge of collusion between plaintiff and defendants. No objection was taken to the petition on any ground, and upon the motion of interveners an issue was framed: “Whether the ground of attachment set forth in the plaintiff's affidavit existed at the time of the issuance of the attachment?"
This was set down for trial by jury, and the court ruled that the interveners had the affirmative of the issue and that the burden of proof was upon them. To this ruling the interveners objected and reserved an exception. After the evidence was in, the court instructed the jury to find a verdict for the plaintiff, and thereupon entered a judgment dismissing the petition.
1. Before considering the case on the errors assigned, certain preliminary questions raised by the appellee in support of the judgment must be disposed of. As we have seen, there was no objection taken to the leave to file the petition of intervention, and no demurrer thereto when filed. Now, for the first time, it is urged that the court had no power to permit or to entertain it.
Since a very early day, the right of one claiming title to, or an interest in, property that has been attached, to intervene in the cause and controvert the truth of the grounds of the attachment stated in the plaintiff's affidavit has been firmly established. Campbell v. Morris, 3 H. & McH. 552; Ranahan v. O'Neale, 3 G. & J. 298, 301; Stone v. Magruder, 10 G. & J. 383, 386; Carson v. White, 6 Gill, 17, 26; Clark v. Meixsell, 29 Md. 221, 227. The same practice has obtained in the Supreme Court of the District of Columbia, and has been repeatedly sanctioned by that court in General Term. United States v. Howgate, 2 Mackey, 408; Wallace v. Maroney, 6 Id. 221, 223, Reynolds v. Smith, 18 D. C. 27. Twice since the organization of this court the right of intervention has passed unquestioned. Robinson v.
Morrison, 2 App. D. C. 105, 120, 21 Wash. Law Rep. 579. Matthai v. Conway, 2 App. D. C. 45, 50, 21 Wash. Law Rep. 39. The point must now be regarded as settled.
It is true the interveners in this case do not claim ownership of the property, but a lien thereon and superior right to subject it to the satisfaction of their judgment. We see no difference in principle, however, between the right of intervention of one who claims title to the property and of one who asserts an interest through a lien by contract, or by operation of law under an execution or attachment. Clark v. Meixsell, 29 Md. 221; Buckman v. Buckman, 4 N. H. 319; Clough v. Curtis, 62 N. H. 409; Jacobs v. Hogan, 85 N. Y. 243; Drake on Attachments, Secs. 273, 275.
2. It is further urged that the petition of intervention is fatally defective in that it does not sufficiently appear from its allegations that the defendants in attachment had no other property upon which interveners might have levied their execution and obtained complete satisfaction. Had this objection been taken by demurrer and sustained, there would be no error in the dis. missal of the petition. But however important the fact, it was not jurisdictional; and whilst its omission was a grave defect in the petition, it was one that could, and doubtless would, have been supplied by immediate amendment had attention been directed to it at the proper time. It would be unjust now to hold, regardless of any error that may have been committed on the trial, that the judgment must nevertheless stand be. cause of that defect in the petition.
3. The next and last point offered in support of the judgment would be decisive if well taken. The right to intervene is founded on an interest in the attached property acquired by the issue, and delivery to an officer, of the execution. Il there be no such interest the defect is incurable. The necessity of some interest in the property, by way of claim of title or lien, or superior right to satisfaction, is essential to the right of intervention. Phillips v. Both, 58 Iowa, 499, 502; Scharff v. Chaffee, 68 Miss. 641; Tira v. Smith, 93 N. Y. 87.
At common law, the lien of a fi. fa. dated from its teste. Freeman, Executions, Sec. 135. This was moditied by the Act of Charles II., Sec. 16, 80 as to make the lien (as against all but innocent purchasers for value, perhaps), date from the delivery of the writ to the proper officer for exe. cution. That statute was in force in Maryland at the time of the cession of the territory of the dis• trict, and bas not since been repeated. Comp. Stat. D. C. p. 222, Sec. 1; Arnott v. Cooper, 1 H. & J. 471; Selby v. Magruder, 6 H. & J. 454; Furlong v. Edwards, 3 Md. 99, 113.
Founded in the fact that courts of justices of the peace are not considered courts of record, there is some question whether executions therefrom bind the property under the act aforesaid from the time of delivery to the officer, or from
the time of actual levy only. 12 Am. & Eng. into the truth or falsity of any facts stated in the Ency. Law, 478; Freeman, Executions, Sec. 199. affidavits. If they conform generally to the stat
In the view that we have taken of the case, that ute, and the undertaking is offered with satisquestion is of no practical importance and need factory surety, he issues the writ at once." Weiler not be decided. There was no way in which the v. Chock, 4 App. D. C. 330, 22 Wash. Law Rep. constable could have made an actual levy of in
729. tervener's writ upon the property. It had been The next section provides: “If the defendant, seized by the marshal under the attachment and his agent or attorney, shall file an affidavit was thereby put beyond the interference of any traversing the plaintiff's affidavit, the court shall other court or officer. Hagan v. Lucas, 10 Pet. determine whether the facts set forth in the 400; Covell v. Hyman, 111 U. S. 176. Whilst the plaintiff's affidavit are true, and whether there writ might have been delivered to the marshal for was just ground for issuing the writ of attachexecution (R. S. D. C. Sec. 912), the constable ment; and if the facts do not sustain the affidavit, was the regular executive officer of the justice's the court shall quash the writ of attachment or court, charged by law with the execution of its garnishment; and this issue may be tried by a process. R. S. D. C. Sec. 1038. Had the writ judge at chambers on three days' notice.", R. S. been delivered to the marshal bimself, he could D, C., Sec. 783. not have reseized the property and held it there- When the affidavit is traversed, the issue is to under. There is no express provision of law re- be tried, at the demand of either party, upon oral quiring or authorizing him to indorse a subse- evidence. Robinson v. Morrison, 2 App. D, C. quent execution as levied upon the property sub- 105, 116, 22 Wasb. Law Rep. 35. We think that ject to the attachment, though he might probably by the natural and proper construction of the be permitted to do so, in order to fix a right statute the burden, on that trial, is cast upon the thereunder to claim the surplus after the dis- plaintiff to prove the existence of facts which charge of the prior writ, or to contest its priority | justify the attachment. It does not say that the or validity.
defendant shall disprove the facts alleged by the The statute of Charles aforesaid requires the plaintiff, but that the court shall determine officer to indorse upon each fi. fa. the date of its whether the facts alleged by the plaintiff are receipt for the apparent purpose of determining true, and shall quash his writ "if the facts do not its priority, but provides nothing further to be sustain the affidavit." done in order to fix and retain its lien upon prop
The writ of attachment is a harsh and severe erty tbat may have been seized under a prior process, though necessary in many cases for the writ.
proper protection of creditors. The right to have For the purposes of this case, at least, the ac- it is a privilege granted upon the alleged existtion taken by the interveners should be regarded ence of certain facts. The affidavits required are as the equivalent of an actual levy. Everything prima facie sufficient to authorize the clerk to perwas done that could be lawfully done. The judg- form the ministerial act of its issuance; but this ment was obtained and the writ issued and de- prima facie case is overthrown by the traverse unlivered to the regular officer of the court for exe- der oath, and if the plaintiff offers no evidence to cution. That officer could not take the property support the truth of his averments his attachment into bis possession. All that he could do was to will and ought to fail. The affirmative is upon hold the writ, notify the marsbal, perhaps, and the plaintiff, and to require the defendant to take remain in position to seize the property should the burden of establishing a negative is to reverse the attachment be quashed, or its remainder, the natural order of pleading and proof. There should a part only be required to discharge the is certainly no hardship in imposing upon the prior writ. This we think was sufficient to au- former the burden of maintaining the advantage fborize the judgment creditors to intervene and obtained by his writ. Having knowledge of the controvert the grounds of the attachment that facts sufficient to justify him in making affidavit bars the way to the enforcement of their execu- of their existence, he ought to be prepared with tion.
some evidence to prove his charges. Where the 4. This brings us to the consideration of the intent to defraud is charged in general terms, the error assigned by the appellant. Did the court defendant often might not know how and with err in requiring the interveners to assume the what evidence to prepare to disprove the charge burden of proving that the grounds of the attach- until informed by plaintiff's evidence of the ment were not true? The statute authorizes the specific acts from which the inference had been issuance of an attachment at the commencement,
drawn. or during the pendency, of a suit upon an affi- The conclusion that we have reached after davit of the plaintiff alleging the existence of much consideration is, in our opinion, not only certain grounds, and supported by the testimony
sound in principle, but supported by many well of one or more witnesses.' R. S. D. C. Sec. 782. considered decision, which, when examined, will
Upon compliance with this section the attach- be seen, in so far as they may be influenced by ment is issued by the clerk as a matter of course. statute at all, to be founded on provisions subAs bas been said by this court: “The duty of stantially like our own. Wright v. Rambo, 21 the clerk is ministerial. He makes no inquiry Gratt. 158, 162; Oliver v. Wilson, 29 Ga. 642, 645;