to labor. If a man uses the benefit which his labor is or will be to another, by threatening to withhold it or agreeing to bestow it, or by actually withholding it or bestowing it, for the purpose of inducing, procuring, or compelling that other to commit an unlawful act, the withholding or bestowing his labor for such a purpose is itself an unlawful and criminal act, or a boycott. It is lawful for a combination to sell the labor of those engaged in it for the highest price obtainable, and on the best terms. And when any number of men unite to sell their labor it is a lawful combination, so long as they do not conspire to control the business of other persons; such conspiracy is clearly unlawful and in opposition to the common law. The mechanic is not obliged to labor for any particular price. He has a right to fix his own price, but he has no right to say that no other mechanic shall work for less wages. If workingmen ask wages which an employer cannot afford to pay, they have no right to say that no others shall accept lower wages. Such dictation would be productive of derangement and confusion which would injure trade; and the mere inducing one to break a contract with the intent to do the employer injury is malice of itself.10

4. Civil Liability.—That those who establish a boycott by conspiring to injure a man in business, are criminally liable is well-settled. But they are not only criminally but civilly liable. No man can justify damaging another in his commercial business by fraud or misrepresentation. Intimidation, obstruction, and molestation are unlawful; so is the intentional procurement of a violation of individual rights, contractual or other, when there is no just cause for it. The intentional driving away of customers by show of violence;" the impeding or threatening servants or workmen ;12 the inducing persons under personal contracts to break their contracts,13 are instances of such unlawful acts, which make the actor liable to the injured party in a civil action. The rule is that whenever any persons enter into an indictable conspiracy, and that agree

9 People v. Fisher, 14 Wend. (N. Y.) 18.

19 Chipley v. Atkinson, 23 Fla. 213; Bowen v. Hall, 6 Q. B. D. 333; Lumley v. Gye, 2 El. & B. 216. 11 Tarleton v. McGawley, Peak, N. P. C. 270.

12 Garrett v. Taylor, Cro. Jac. 567.

13 Bowen v. Hall, 6 Q. B. 333; Lumley v. Gye, 2 El. & B. 216.

ment is carried into execution by the conspirators by means of unlawful acts which produce private injury to some person, that person has a cause of action against the conspirators. 14 So a common carrier company against whom a conspiracy is directed by a combination of locomotive engineers, which is injured by acts of such combination, has a cause of action for its loss against all of those engaged in the conspiracy.15 The facts in this case are these: P. M. Arthur, the chief executive of the Brotherhood of Locomotive Engineers, promulgated an order that there was a "legal" strike in force upon the Toledo, Ann Arbor and North Michigan Railroad, which order required the employees of connecting railroads not to handle and deliver any cars of freight in course of transportation from one State to another to said railroad or handle any of its cars of freight. This strike was caused because the railroad company refused to pay its engineers higher wages, and, hence, this boycott. It was decided by the court that the chief executive, Arthur, and all the members of the brotherhood engaged in causing loss to the railroad company by the boycott were liable for any actual loss inflicted in pursuance of this conspiracy; that the gist of any such action must be not in the combination or conspiracy, but in the actual loss occasioned thereby. No civil liability arose from the mere promulgation of the order of a "legal" strike, or its attempted enforcement, unless injury was done. But whenever a man or body of men do an act which in law and in fact is an unlawful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie.16 If a single engineer, with intent to injure a railroad corporation, could, by threatening to quit or by actually quitting for the purpose, induce his employer to inflict a loss upon a 14 Steamship Co. v. McGregor, 23 Q. B. 598, 624; Bowen v. Hall, 6 Q. B. D. 333, 337; Lumley v. Gye, 2 El. & B. 216. See, also, Rice v. Manley,66 N. Y.82; Benton v. Pratt, 2 Wend. (N. Y.) 385; Buffalo Lubricating Oil Co. v. Standard Oil Co., 106 N. Y. 669; Steamship Co. v. McKenna, 30 Fed. Rep. 48; Carew v. Ruther. ford, 106 Mass. 1; Moores v. Bricklayers' Union, 23 Weekly Law Bul. 48.

15 Toledo, etc. Railroad Co. v. Pennsylvania Co., 54 Fed. Rep. 730.

16 Bowen v. Hall, 6 Q. B. D. 333, 337. See also, Lucke v. Cutters' Assembly (Md.), 26 Atl. Rep. 505.

parties raced for a distance, when Mr. Pond ran over a pile of sand in the highway. His carriage was overturned, and plaintiff thrown out and injured. The proofs are clear that Mr. Pond knew that a building was being erected by the side of this street, and that a mortar box and other materials were out in the street, in front of it. He stated that on a former trial he testified that he knew the street was incumbered by such materials, and thought that somebody was liable to get hurt there. Yet, in view of this knowledge, he carelessly drove his horse at the rate of more than six miles an hour in the street, contrary to the ordinances of the city. The court directed the jury: "If you find from the evidence in this case that the plaintiff would not have been injured but for the neglect of the city to give proper warning, then the plaintiff would be entitled to recover, unless you find that Mr. Pond knew of the obstruction to a portion of this street, and heedlessly drove over the obstruction; that he would be guilty of gross negligence, and plaintiff could not recover." Again the court said: "If the plaintiff in this case voluntarily entered the private convey. ance of Mr. Pond, and voluntarily trusted her person and safety, in that conveyance, to him, by voluntarily entering into the private conveyance of Mr. Pond,she adopted the conveyance, for the time being, as her own, and assumed the risk of the skill and care of the person guiding it. So, if you find that Mr. Pond was negligent, in driving fast, the plaintiff could not recover." The jury returned a verdict in favor of the defendant.

The only question presented by the brief of plaintiff's counsel is whether the negligence of Mr. Pond is imputable to the plaintiff. This question was settled in the affirmative in Railroad Co. v. Miller, 25 Mich. 274 (decided by this court in 1872), and has not since been departed from. Counsel claims that some doubt has been cast upon this doctrine by some of the later decisions, and cites Battishill v. Humphreys, 64 Mich. 503, 31 N. W. Rep. 894. In that case a child three years of age was run over by an engine upon a railroad operated by defendant, as receiver. The question was raised whether the negligence of the parents in permitting the child to go upon the track was imputable to the child. Mr. Justice Morse held that such negligence was not imputable to the child. The other justices expressed no opinion upon that point. In Shippy v. Village of Au Sable, 85 Mich. 280, 48 N. W. Rep. 584, the question whether the negligence of the parents was imputable to a child three years of age was again presented; and, upon a full hearing, it was the unanimous opinion of the court that such negligence was not imputable to the child. Other cases of like character have been presented to this court, involving that question; and the rule is now established that, when the child brings the action for negligent injuries, the negligence of the parents cannot be imputed to it. But the present case presents quite a different question. Here a person of the age of discretion voluntarily

enters a private conveyance of another, to ride, and by the carelessness of that person is injured. The rule laid down in the Miller Case, cited above, excludes a recovery. It has been too long settled to be now disturbed. In Schindler v. Railway Co., 87 Mich. 410, 49 N. W. Rep. 670, the rule was recognized. It was there said of the Miller Case: "This is the general rule, and has since been followed in this State." The rule was also recognized by this court in Cowan v. Railway Co., 84 Mich. 583, 48 N. W. Rep. 166. Judgment is affirmed.

NOTE. The cases upon the subject of imputed neg ligence are not harmonious, but the great weight of authority is against the contention that the negligence of the driver of a vehicle should be imputed to the passenger; the case of Thorogood v. Bryan & C. B. 115, which is considered the leading case sustaining the proposition, having been overruled in England and repudiated in this county, generally, though followed in some States. That was a case of the collision of two omnibuses. The action against the owner of one by a passenger of the other was defeated upon the ground of contributory negligence, upon the theory that the passenger was so identified with the driver of his vehicle as to be chargeable with his negligence. This decision seems to rest upon an inference that the driver is the agent of the passenger, or at least that he is under the direction and control of the passenger. The case was disregarded in Rigby v. Hewitt, 5 Exch. 239, and distinctly overruled in The Bernina, 12 Prob. Div. 58; Mills v. Armstrong, 13 App. Cas. 1. In the last case, Lord Herschell commented as follows upon the case of Thorogood v. Bryan: "In short, as far as I can see, the identification appears to be effective only to the extent of enabling another person, whose servants have been guilty of negligence, to defend himself by the allegation of contributory negligence on the part of the person injured. But the very question that had to be determined was whether the contributory negligence of the driver of the vehicle was a defense, as against the passenger, when suing another wrong-doer. To say that it is a defense, because the passenger is identified with the driver appears to be to beg the question, when it is not suggested that this identification results from any recognized principles of law, or has any other effect than to furnish that defense, the validity of which was the very point in issue." In Little v. Hackett, 116 U. S. 366, 6 Sup. Ct. Rep. 391, Mr. Justice Field uses the following language: "The truth is, the decision of Thorogood v. Bryan, rests upon indefensible grounds. The identification of the passenger with the negligent driver or the owner, without his co-operation or encouragement, is a gratuitous assumption. There is no such identity. The parties are not in the same position. The owner of a public conveyance is a carrier, and the driver, or the person managing it, is his servant. Neither of them is the servant of the passenger, and his asserted identity with them is contradicted by the daily experience of the world." The doctrine of Thorogood v. Bryan has met with similar treatment in most of the State courts of last resort, and, as to public conveyances, may be said not to state the law correctly. The reasons upon which these cases rest are equally conclusive in cases where the injured party was riding in a hired carriage with a driver from a livery stable; in cases where the passenger does not, as a matter of fact, exercise such control over the driver as to make him his servant. See Little

v. Hackett, supra; Missouri Pac. Ry. Co. v. Texas Pac. Ry Co., 41 Fed. Rep. 316; Larkin v. Railway Co. (Iowa), 52 N. W. Rep. 480; Railroad Co. v. Steibrenner, 47 N. J. Law, 161; Randolph v. O'Riorden (Mass.), 29 N. E. Rep. 583. The dissenting judges say that "in cases like the present the question becomes one of fact; the test of the passenger's responsibility for the negligence of the driver depending upon the passenger's control, or right of control, of the driver, so as to constitute the relation of master and servant between them. Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. Rep. 127; Cahill v. Railway Co. (Ky.), 18 S. W. Rep. 2; Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. Rep. 516; Dean v. Railroad Co., 129 Pa. St. 514, 18 Atl. Rep. 718; McCaffrey v. President, etc., (Sup.) 16 N. Y. Supp. 495; Masterson v. Railroad Co., 84 N. Y. 247; Noyes v. Boscawen, 64 N. H. 361, 10 Atl. Rep. 690; Follman v. City of Mankato, 35 Minn. 522, 29 N. W. Rep. 317; Railroad Co. v. Hogeland, 66 Md. 149, 7 Atl. Rep. 105; State v. Boston & M. R. Co., 80 Me. 430, 15 Atl. Rep. 36; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N. E. Rep. 452; Railroad Co. v. Spilker (Ind. Sup.), 33 N. E. Rep. 280. It should not be inferred that a passenger can shelter himself behind the fact that another is driving the vehicle in which he rides, and relieve himself from his own personal negligence. What degree of care should be required in the selection of a driver, or in observing and calling attention to dangers unnoticed by the driver, must depend upon the circumstances of each case.

It remains to inquire whether this question can be considered an open one in this State. The question before us is doubtless supposed by many to have been settled in the case of Railroad v. Miller, 25 Mich. 274, and it cannot be denied that the syllabus of that case would confirm the opinion. The facts in that case were these: The plaintiff, a woman, was riding with Eldridge, being in his employ. The wagon was struck upon a railway crossing, near which was a wood pile belonging to defendant, which obscured the view of the railroad. The only allusion to the question here discussed arose as follows: The court said: "So that the only negligence which can be claimed in the mode of running the train must rest upon the ground that the company, having obscured the view and deadened the sound of the approaching train by the mode of piling their wood, were bound, for that reason, to run at much less than their usual rate of speed, in approaching that crossing, or to keep a flagman there, or use some other extra means to warn people traveling the highway of the approach of trains from the west. The materiality of this question must depend upon another,-whether the plaintiff's own negligence, or that of Eldridge, who was driving the team, contributed to the injury, within the meaning of the generally settled rule upon this subject; for, as she was riding with Eldridge, the owner and driver of the team, any negligence of Eldridge equally affects her rights in this suit, as was properly held by the court." It will be noticed that the subject is passed without discussion, and the court proceeds with a lengthy review of the doctrine of contributory and comparative negligence. On page 286 the court states the established facts, among which are the following: "Eldridge was slightly deaf, but the plaintiff herself was not." "They kept on, still upon the walk (the train in sight), not stopping to listen, and looking neither to the right nor the left, neither up nor down the track. They are almost upon it. He (the witness) still thinks they will stop, but they move steadily on," etc. Again: "No logic can find in it, or extract from it (the evidence), the

faintest manifestation of common prudence, which the circumstances demanded, in approaching the crossing." The court finds from the testimony of the plaintiff herself that neither Eldridge nor herself used any caution whatever. One of two things must be admitted, under the facts stated, viz.: (1) that plaintiff was relieved from all responsibility by the fact that she was riding with Eldridge, and was under no obligation to look for the train; or (2) that the failure to do so was contributory negligence upon her part which should have precluded a recovery by her, in which case the question of imputed negligence was unimportant. The opinion apparently takes the lat ter view, so far as plaintiff's own negligence is concerned, where it says, "I think the evidence tended affirmatively to prove actual and gross negligence on their part, which contributed directly to produce the injury complained of." From the finding, I think it may be said that the question before us was not necessarily involved in the Miller Case, and that it was not considered the controlling point. If it is to be treated as conclusive, against the overwhelming weight of authority in the United States and England, we shall apparently accept an incidental remark in an opinion as decisive upon an important principle, which deserved a full discussion before being settled. An examination will show that this decision has never since been applied, beyond a recognition of the doctrine in cases where it was not involved in the decision. It was mentioned and recognized in Cuddy v. Horn (Mich.), 10 N. W. Rep. 32, but the court disposed of the case upon the ground that the passenger upon a yacht had not control of the management. In Schindler v. Railway Co., 87 Mich. 411, 49 N. W. Rep. 670, the court again recognized the rule saying, that it was settled in Railway Co. v. Miller, but that it did not apply, because the defendant was guilty of wantonness. The plaintiff was a child riding with a neighbor. Mr. Justice Champlin, in a dissenting opinion, protested against the doctrine. 87 Mich. 419, 49 N. W. Rep. 670. In Battishill v. Humphreys, 64 Mich. 509, 31 N. W. Rep. 894, Mr. Justice Morse uses the following language: "I am not content to let the question pass as a settled one in this State. At least, I am not willing to assent to the proposition that the negligence of any other person can become the contributory negligence of a plaintiff, without his fault. 64 Mich. 508, 31 N. W. Rep. 894. In the case of Shippy v. Village of Au Sable, 85 Mich. 292, 48 N. W. Rep. 584, Mr. Justice Morse expressed satisfaction with the views in the Battishill Case, and added, "I am also satisfied that the great weight of authority in this country is opposed to the contention of the defendants." In neither of these cases was the doctrine of Railway Co. v. Miller applied. It seems, therefore, that the authority of the case of Railway Co. v. Miller has been repeatedly questioned. The time has atrived when the question must be settled. I think it should be in conformity to the weight of authority, and the better rule. The judgment should be reversed, and a new trial ordered."

JETSAM AND FLOTSAM. SUSPENSION OF CROSS-EXAMINATION TO PROVE EXISTENCE OF DOCUMENT.

The ruling of Judge Bradley in Pollard v. Breckenridge, sustaining the right of counsel who has a witness under cross-examination to suspend the crossexamination by leave of the court when the witnesses denies the writing or the existence of a supposed do

cument and to interfect, by calling other witness, the testimony desired to establish the existence of such document, in order to go on with the cross-examination by the aid thereof, applies, in a way per. haps new to many of the profession, a principle already well established, in other applications at least, in the modern practice of examining witnesses. There was a time when questions as to competency, for instance, of the witness must be determined before the witness was sworn in chief. It is now the general practice to allow a witness, after being sworn in chief, to be cross-examined as to compentency, and to allow the cross-examining counsel, if incompetency is not established, to interpose with other witnesses to establish it if he can, before allowing the di rect examination to go on. In the same way, if the incompentency suggested is not general, but partial, extending only, for instance, to qualify the witness to express an opinion, in order that the preliminary question may be determined by the judge before the evidence offered for the jury is received. The cur rent reports of the trial in Washington indicate that a similar principle was applied to cross-examination on credibility.

The defendant Breckenridge, stated that he had had no correspondence with the plaintiff during 1886. He was asked on cross-examination whether he had not written certain manuscript and placed it in the hands of a typewriter to be typewritten and sent to the plaintiff. The paper not being in possession of the cross examining counsel, and the copy that was claimed to have been made and sent to the plaintiff also not being in existence, the court ruled that the cross-examination might be suspended and proof made that defendant did write such manuscript (and of its contents), did have it copied, that the copy was received by the plaintiff and destroyed, and, such proof having been made, that the defendant might be cross-examined in regard to it, just the same as though the manuscript had been handed to him for that purpose.-University Law Review.

AN UNFORTUNATE CREDITOR.

A case in the last Texas Reports has brought up squarely the question whether two joint debtors, by agreeing with each other to become respectively principal and surety, and by notifiying the creditor of their agreement, may compel him to respect its terms, and to treat them thereafter as principal and surety. Hall v. Johnson, 24 S. W. Rep. 861, was the case of a continuing partner who agreed to indemnify his retiring copartner against payment of the firm debts; notice of this arrangement was given to the creditor. The majority of the court held that an extension of time given to the continuing partner discharged the retiring copartner, Fisher, C. J., dissenting. Each side marshalled its authorities (many of which are collected in 17 Amer. & Eng. Enc. Law, 1131) in full array, and the dissent went into a more extended examination of the principles involved.

The English courts, not content with the theoretical difficulty to the question, have still further compli cated the question by disputing the effect of the decision in Oakeley v. Pasheller, 10 Bligh (N. S.), 548, in the House of Lords in 1836. In Swire v. Redman, 1 Q. B. D. 536, the court held that notice to the creditor of the new arrangement did not oblige him to treat the debtors as principal and surety, and said that Oakeley v. Pasheller went on the ground that the creʻlitor had virtually assented to the new arrangement. Lord Justice Lindley, in his work on Partnership (5th edi tion, p. 252), considered this view of Oakeley v. Pasheller, to be correct; but now in Rouse v. Bradford

Banking Co., 38 Sol. Law Jour. 270, he says that Swire v. Redman took the wrong view of Oakeley v. Pasheller, and that the law is settled the other way. A. L. Smith, L. J, agreed with him, and Kay, L. J., took the contrary view.

These cases have tied the Gordian knot so tight that it needs a decision of the House of Lords to cut it; but in the United States the case may be decided on principle. If we free the question from all analogy as to the rights of mortgagees who have notice of a conveyance by the mortgagor, and of a covenant by the grantee to pay the mortgage debt, it is simply this: Can two joint debtors agree to become principal and surety, and compel the creditor to treat them as such? Surely not. The creditor has a legal right,-how can his debtors force him to relinquish it? Generally the position of his debtors will not be a matter of importance to a creditor, and therefore it will not seem so unjust that equity, in order "to do a great right," should do a "little wrong," by depriving him of his theoretical right. But it may be very material to him. Suppose he thinks that the surest way to secure full payment of the debt is to take the time note of one of the debtors. If they are still joint debtors he may safely do this, and still hold the other; if they are principal and surety he must take the risk of being able to prove that he expressed himself as "reserving all rights against the surety," a risk which was not part of his original contract, but which is now forced upon him against his will. It is no answer to say that there are complete precautions against this risk, for there is no reason why he should be compelled to take such precautions.

"The contention is that the two had a right to create a right in themselves, which, if observed, must derogate from the plaintiff's right, and then to say that it is inequitable in the plaintiff to act in derogation of this act so created. Surely the inequity begins earlier, and is in the defendant's derogating from the plaintiff's right without his consent." 1 Q. B. D. 542. This is the view of two of the Lords' Justices, for Lindley, L. J., although he does not think Swire v. Redman, to be law, says he should follow it if he were free to do so. If the Texas court is correct, the creditor must at his peril remember to state that he reserves all his rights against the retiring partner, and, further, must be able to prove that he did so. Fisher, C. J., seems to hit the truth when he says, 24 S. W. Rep. 866: "An Act of the Legislature, or a judicial decision, that reaches to this extent, would unquestionably be opposed to the spirit of the fundamental law that protects the inviolability of contracts."

An interesting article in support of this view may be found in 14 Canadian Law Times, 57; but it must be admitted that the preponderance of authority is other way. Harvard Law Review.

BOOK REVIEWS.

THE CRIMINAL CODE OF CANADA.

Besides what its subject indicates, this volume contains the Canada evidence act of 1893, the extradition act, the extradition convention with the United States, the fugitive offenders act and the house of commons debates on the code. The work is designed to give a full general view of the criminal law and procedure of Canada and is certainly invaluable there. It would seem also to be of interest to criminal practitioners in the United States. It is admirably prepared in clear type, has nearly a thousand pages and is published by Whiteford & Theoret, Montreal.