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is a proper subject of consideration. It does not necessarily follow, however, because we cause some one to change his trade or business relations with a third person with the knowledge on our part that such acts will certainly cause injury to the third person, that our motive is wrong in law. Such injurious acts though prima facie wrong may be susceptible of explanation. One might induce an employee to leave his employer besuch employment is unhealthy or immoral, or induce a customer to quit trading with a certain grocer because he sells unwholesome food or for many other reasons, which we presume the law would consider proper and justifiable motives. If we say that influencing another in the conduct of his business to the injury of a third person is illegal if done maliciously, we are dependent upon the definition of malice. The proposition is not as simple as it seems. Malice is perhaps best defined as the intent to injure another without right or justifiable cause. In other words certain acts are malicious because they are unlawful and unlawful because they are malicious. Our definition leaves us reasoning in a circle. We are left without any serviceable general rule, and must depend largely upon the policy of the law in different classes of cases to determine whether or not acts are right and justifiable. "Competition," it is said in a well known leading case," "exists when two or more persons seek to possess or to enjoy the same thing." follows," says the same authority, "that the success of one must be the failure of another, and no principle of law enables us to interfere with or to moderate that success or that failure so long as it is due to mere competition." In every day business that which different ones, for the most part, compete for and strive to possess is the trade or patronage of others; i. e., the privilege of doing just what the name indicates, "trading" or exchanging. What means can we lawfully employ to induce people to exchange commodities or deal with us rather than with some one else? What more

7 Payne v. W. A. R. R. Co., 81 Tenn. 507.

"It

8 State v. Coella (Wash.), 28 Pac. Rep. 28; Lovett v. State, 11 South. Rep. 550; Territory v. Egan, 3 Dak. 119; Buckley v. Knapp, 48 Mo. 152; Michell v. Wall, 111 Mass. 498; Tuttle v. Bishop, 30 Conn. 80.

9 Mogul Steamship Co. v. McGregor, Gow & Co., 23 L. R. (Q. B. D.) 598.

ness.

reasonable and natural way is there than to give those with whom we deal more than any one else would give them in exchange for what they have to offer us? A tradesman may persuade customers to deal with him by reducing the price at which he sells his commodities, or one who wishes to contract his labor or services by reducing the price at which he will work. We know of no limit placed upon competition which consists of securing customers by selling commodities cheap or even by giving them away or by performing services for a less price than others charge. 10 Apparent injustice is often done to individuals and injury to society along this line, however, without legal liability. Large trusts and combinations often crowd out smaller concerns in this manner. The trust finds some outside firm selling commodities in a certain place. Immediately the trust cuts prices so that that line of business can be carried on in that place only at a loss. The outside firm has not sufficient capital to carry on the fight, and must give up busiWhen it is out of the way the trust can charge whatever price it pleases. Such a proceeding has two features that are objectionable in law. It contemplates driving ing other tradesmen whose rights should be respected out of the business, and it has in view a fixing of prices by stifling competition. Yet we know no authority that holds that a reduction in price of commodities or charge for services for the direct purpose of securing and retaining the trade or patronage of those who may wish to purchase those commodities or employ such labor is illegal, although such reduction may be a part of the plan to drive others out of that business, and in that manner secure a monopoly of the business and raise the prices. This phase of the question was quite thoroughly discussed in The Mogul Steamship Co. v. McGregor, Gow & Co., the opinions filed in the report of which case contains a most valuable discussion of the limits and privileges of competition. In this case a certain number of steamship companies combined to control freight rates from certain Chinese ports to England, and to compel all rival ships to abandon carrying freight between these

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10 Mogul Steamship Co. v. McGregor, Gow & Co., 23 L. R. (Q. B. D.) 598.

11 23 L. R. (Q. B. D.) 598.

points. Lord Esher in a dissenting opinion says: "It follows that the act of the defendants in lowering their freights far beyond a lowering for any purpose of tradethat is to say, so low that if they continued it they themselves could not carry on tradewas not an act done in the exercise of their own free right to trade, but was an act done evidently for the purpose of interfering with, i. e., with intent to interfere with, the plaintiff's right to a free course of trade, and was, therefore, a wrongful act as against the plaintiffs' right; and as injury ensued to the plaintiffs, they had also in respect of such act a right of action against the defendants." The majority of the court, however, decided against this contention, and in so doing followed the greater weight of authority found in the decisions. The opinion of the majority of the court treated the subject mentioned above as follows: "To say that a man is to trade freely but that he is to stop short of any act which is calculated to harm other trades men 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 not fair or reasonable. The offering of reduced rates by the defendants in the present case is said to have been "unfair." "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 crop of apparently unfruitful prices in order by driving competition away to reap a fuller harvest of profit in the future." We may gather from the majority decision in this case that where trade is the subject of competition we may secure such trade in any way which increases that which we give or decreases that which we demand in exchange whether it be labor, money or merchandise. But the trade for its own sake must be the object sought. We do not believe we are permitted to go to the same length in securing the trade of another solely to drive

him out of the business with no purpose after we have secured it, of retaining the trade, and with no desire for it except as a means of injuring our rival. The law does not recognize the right of any one to deliberately make the destruction of another his means of advantage. If injury to another follows as an incident to my lawful attempt to secure trade advantage the law will not hold me lia. ble, even if such injury must have been anticipated; but if in my plan trade advantage becomes the incident which is to be secured somehow through the destruction of another as a necessary means, the law will hold me liable. The following illustration will indi cate one way in which this question is frequently presented: Tradesmen in some par ticular line of business combine to control prices. Some one in that line of business refuses to join the organization or be bound by its prices, and sells or works for a less price greatly to the injury, perhaps, of all in that line of business, because it lowers the price for all. Suppose now, in order to break up the business of this obstinate or independ ent one, or in order to coerce him to raise his prices, the combination at a loss to itself and admittedly with no intention of securing the trade of the one whom it is seeking to injure, but solely to injure or coerce him, opens up an office or store next door and cuts prices away below cost, and thus drives the one whom they seek to injure out of business. We believe such actions would be illegal and that damages could be recovered. We know of no authorities directly upon this point, but if such a case were presented to the court and it were clearly shown that this cut rate was intended to injure and destroy the business of another and not to secure another's trade, we believe the court would not be bound by the privileges of trade compe tition, for it would not be a competi tion for trade. The law will not follows in transaction through two or more stages order to find the intended benefit when s third person is injured, and will not allow an indirect or remote trade advantage to excuse such injury. We are perhaps most likely to be confused and misled in this particular, namely, to think because the law permits us for the most part, as we have noticed, to con duct our own trade relations, in whatever

way we think will most benefit our trade or business that the law is especially interested in our particular trade, and will allow us to secure trade advantage, or do that which we expect will secure trade advantage, by indirect means and in a roundabout way regardless of the rights of others. The law has no such inclination. This point is quite clearly brought out in the case of Delz v. Winfree quoted above. The several dealers in beef cattle could combine and agree that they would not sell to a certain butcher, although their motive in so doing was for coercion and with intention to cause injury to the butcher, but the law did not permit them by inducing another dealer also to refuse to sell to the butcher, to accomplish by indirection the same result which they would have been permitted to accomplish through their own acts directly. The case of Curran v. Galen, 12 cited above, affords another illustration. In this case defendants had procured the discharge of the plaintiff from service because he did not belong to the association of which they were members, and the plaintiff brought suit for damages sustained through loss of service. The court said: "The defendants had a perfect right, as we have seen, to unite with this or any other labor organization, but they had no right to insist that others should do so, and when they make plaintiff's refusal to join it a pretext for depriving him of his right to labor they interfere with his personal liberty in a manner and to an extent the law will not countenance, and their action, instead of offering a protection to, operates as a restraint upon 'honest labor.' It seems quite clear from the authorities, 18 that if one maliciously induces another to terminate or modify his business relations with a third person to the injury of such third person, it is not necessary that the one thus influencing the other should use either force, fraud, threats or intimidations in order to render him liable for damages done to the third party. The expressions used by the authorities are "persuading," "procuring," "enticing," "influencing" and like terms. In Bowen v. Hall,

13

12 22 N. Y. S. 826. Ante p. 254.

18 Lumley v. Gye, 2 El. & Bl. 216; Bowen v. Hall, 6 L. R. (Q. B. D.) 333; Carew v. Rutherford, 106 Mass. 1; Walker v. Cronin, 107 Mass. 555; Chipley v. Atkinson, 1 South. Rep. 934; Delz v. Winfree, 16 S. W. Rep. 111.

the court says: "Merely to persuade the person to break his contract may not be wrongful in law or in fact, but if the persuasion be used for the direct purpose of injuring the plaintiff, it is actionable if injury ensues from it." The malicious motive and resultant injury constitute the cause of action. The particular means by which the result is accomplished is of secondary importance. WILLIAM H. TUTTLE.

Chicago, Ill.

ATTACHMENT-INTERVENTION-BURDEN OF PROOF.

DANIEL v. SOLOMON.

Court of Appeals of the District of Columbia.

The right of junior attachment or execution creditors, to intervene in an attachment suit, and deny the grounds of attachment set out in the plaintiff's affidavit, exists independently of statutory provisions.

An execution issued by a justice of the peace and placed in the hands of a constable, creates such an interest in goods of the execution debtor, seized under a prior attachment, as will entitle the execution creditor to intervene in the attachment suit, though there has been, and can be, no actual levy of the ex ecution on such goods.

The petition of an intervening creditor in an attachment should aver that the debtor has no other prop. erty than that attached, to which the intervener can resort for satisfaction of his claim; but the absence of such an averment, not having been taken advantage of in the court below, cannot be availed of on appeal.

Upon the intervention of junior attachment or exe cution creditors in an attachment suit, denying the grounds of attachment set out in the affidavit, the burden is on the plaintiff to prove the existence of those grounds as stated; but if fraud and collusion between the original parties be alleged, the burden will be upon the interveners to prove that fact.

MR. JUSTICE SHEPARD delivered the opinion of the court:

The appellants, Daniel and Blumenthal, have appealed from a judgment of the Supreme Court of the District of Columbia, dismissing a petition of intervention filed by them in an action of debt depending in said court between Elias Solomon as plaintiff, and Stern and Livingston as defendants. Solomon commenced said suit December 26, 1896, upon two notes amounting together to the sum of $1,400. At the same time he sued out a writ of attachment against them on the ground that they had assigned, disposed of and secreted, and were about to assign, dispose of and secrete, their property, with intent to hinder, delay and defraud their creditors. The writ of attachment was executed by the marshal by seizing the goods

of the defendants.

On January 21, 1897, appellants filed their plea 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 have 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 dismissal 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 because 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. If 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 modified 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 has not since been repeated. Comp. Stat. D. C. p. 222, Sec. 1; Arnott v. Cooper, I 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. Ency. Law, 478; Freeman, Executions, Sec. 199. In the view that we have taken of the case, that question is of no practical importance and need not be decided. There was no way in which the constable could have made an actual levy of intervener's writ upon the property. It had been seized by the marshal under the attachment and was thereby put beyond the interference of any other court or officer. Hagan v. Lucas, 10 Pet. 400; Covell v. Hyman, 111 U. S. 176. Whilst the writ might have been delivered to the marshal for execution (R. S. D. C. Sec. 912), the constable was the regular executive officer of the justice's court, charged by law with the execution of its process. R. S. D. C. Sec. 1038. Had the writ been delivered to the marshal himself, he could not have reseized the property and held it thereunder. There is no express provision of law requiring or authorizing him to indorse a subsequent execution as levied upon the property subject to the attachment, though he might probably be permitted to do so, in order to fix a right thereunder to claim the surplus after the discharge of the prior writ, or to contest its priority or validity.

The statute of Charles aforesaid requires the officer to indorse upon each fi. fa. the date of its receipt for the apparent purpose of determining its priority, but provides nothing further to be done in order to fix and retain its lien upon property that may have been seized under a prior writ.

For the purposes of this case, at least, the action taken by the interveners should be regarded as the equivalent of an actual levy. Everything was done that could be lawfully done. The judgment was obtained and the writ issued and delivered to the regular officer of the court for execution. That officer could not take the property into his possession. All that he could do was to hold the writ, notify the marshal, perhaps, and remain in position to seize the property should the attachment be quashed, or its remainder, should a part only be required to discharge the prior writ. This we think was sufficient to authorize the judgment creditors to intervene and controvert the grounds of the attachment that bars the way to the enforcement of their execution.

4. This brings us to the consideration of the error assigned by the appellant. Did the court err in requiring the interveners to assume the burden of proving that the grounds of the attachment were not true? The statute authorizes the issuance of an attachment at the commencement, or during the pendency, of a suit upon an affidavit of the plaintiff alleging the existence of certain grounds, and "supported by the testimony of one or more witnesses." R. S. D. C. Sec. 782. Upon compliance with this section the attachment is issued by the clerk as a matter of course. As has been said by this court: "The duty of the clerk is ministerial. He makes no inquiry

into the truth or falsity of any facts stated in the affidavits. If they conform generally to the statute, and the undertaking is offered with satisfactory surety, he issues the writ at once." Weiler v. Chock, 4 App. D. C. 330, 22 Wash. Law Rep. 729.

The next section provides: "If the defendant, his agent or attorney, shall file an affidavit traversing the plaintiff's affidavit, the court shall determine whether the facts set forth in the plaintiff's affidavit are true, and whether there was just ground for issuing the writ of attachment; and if the facts do not sustain the affidavit, the court shall quash the writ of attachment or garnishment; and this issue may be tried by a judge at chambers on three days' notice.", R. S. D. C., Sec. 783.

When the affidavit is traversed, the issue is to be tried, at the demand of either party, upon oral evidence. Robinson v. Morrison, 2 App. D. C. 105, 116, 22 Wash. Law Rep. 35. We think that by the natural and proper construction of the statute the burden, on that trial, is cast upon the plaintiff to prove the existence of facts which justify the attachment. It does not say that the defendant shall disprove the facts alleged by the plaintiff, but that the court shall determine whether the facts alleged by the plaintiff are true, and shall quash his writ "if the facts do not sustain the affidavit.”

The writ of attachment is a harsh and severe process, though necessary in many cases for the proper protection of creditors. The right to have it is a privilège granted upon the alleged existence of certain facts. The affidavits required are prima facie sufficient to authorize the clerk to perform the ministerial act of its issuance; but this prima facie case is overthrown by the traverse under oath, and if the plaintiff offers no evidence to support the truth of his averments his attachment will and ought to fail. The affirmative is upon the plaintiff, and to require the defendant to take the burden of establishing a negative is to reverse the natural order of pleading and proof. There is certainly no hardship in imposing upon the former the burden of maintaining the advantage obtained by his writ. Having knowledge of the facts sufficient to justify him in making affidavit of their existence, he ought to be prepared with some evidence to prove his charges. Where the intent to defraud is charged in general terms, the defendant often might not know how and with what evidence to prepare to disprove the charge until informed by plaintiff's evidence of the specific acts from which the inference had been drawn.

The conclusion that we have reached after much consideration is, in our opinion, not only sound in principle, but supported by many well considered decision, which, when examined, will be seen, in so far as they may be influenced by statute at all, to be founded on provisions substantially like our own. Wright v. Rambo, 21 Gratt. 158, 162; Oliver v. Wilson, 29 Ga. 642, 645;

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