C. A.

1903

GIBLAN

v.

NATIONAL

AMALGAMATED LABOURERS' UNION OF GREAT

IRELAND.

Stirling L.J.

an action special damage must be proved." This agrees with what is laid down by Bowen L.J. in the last sentence cited above, and is supported by the case of Barber v. Lesiter (1) to which Lord Brampton refers. In the present case damage has been found by the jury.

The question then arises whether the preventing the plaintiff from obtaining employment, by threats of calling out the BRITAIN AND union men unless he was dismissed, is an unlawful act on the part of Toomey and Williams acting in combination; and in considering this question there must be borne in mind the observation of Bowen L.J., just quoted, as to the necessity of using great care not to extend too far the doctrine of illegal conspiracy. In the Mogul Case (2) it was decided that acts done by traders in the exercise of their right to carry on a legal business were not illegal, although highly detrimental to another trader engaged in a similar and competing business. Fry L.J. puts the matter thus (3): "The right of the plaintiffs to trade is not an absolute but a qualified right-a right conditioned by the like right in the defendants and all Her Majesty's subjects, and a right therefore to trade subject to competition." So also every workman is entitled to dispose of his labour on his own terms; but that right is conditioned by the right of every other workman to do the like. In particular, each employee is, as I think, at liberty to decide for himself whether he will or will not work along with another individual in the same employ; and if all the workmen but one determine that they will not continue their labour in company with that one, they may inform their employer of their decision. On this I refer to what was said in Allen v. Flood (4) by Lord Watson (5) and Lord Davey. (6) Those who desire to exercise such a right must indeed proceed with care, for the law forbids in this connection various classes of acts. I think, however, that it is unnecessary on this occasion to discuss this part of the subject, for the fifth and sixth findings of the jury appear to me to negative any suggestion

(1) (1860) 7 C. B. (N.S.) 175.
(2) [1892] A. C. 25.

(3) 23 Q. B. D. 625.

(4) [1898] A. C. 1.

(5) [1898] A. C. at pp. 98-9.
(6) [1898] A. C. at p. 173.

that the acts of Williams and Toomey were done on behalf of
the fellow-labourers of the plaintiff, or in exercise of any right
of theirs to withdraw themselves from an employment in
which he took part. These acts were directed to inflict harm
on the plaintiff by preventing him from obtaining or retaining
employment, and consequently from earning his livelihood in
the only way in which he could do so. By their acts they,
Williams and Toomey, caused him as serious an injury as can
well be done to a working man; and that injury resulted in
damage. They did those acts from time to time, as the
plaintiff succeeded in obtaining employment, by going to his
employer and threatening that they would resort to the powers
which were, or were believed to be, vested in them as officers
of a trade union, and which involved a resort to the power
of numbers in a way which might and probably would cause
detriment to the employer. It may, in my opinion, be fairly
inferred from the evidence that this course of conduct was
intended to be continued until the plaintiff made terms satis-
factory to the trade union. Such acts, so persisted in, seem
to me to be in the nature of molestation or coercion; and
although they do not involve recourse to physical force, I
am far from satisfied that they are not such as to be illegal,
even if done by a single individual. Fry L.J. in the same
judgment in the Mogul Case (1) says: "I do not doubt that
it is unlawful and actionable for one man to interfere with
another's trade by fraud or misrepresentation, or by molest-
ing his customers, or those who would be his customers,
whether by physical obstruction or moral intimidation." It
is unnecessary, however, to decide this point, for these acts
which inflicted injury on the plaintiff, resulting in damage,
were done by two persons in combination, and amounted
to an interference with the plaintiff's rights no less serious
than that which was the subject of the action of Gregory
v. Duke of Brunswick (2), a case which has been treated as
an authority in the House of Lords in Quinn v. Leathem. (3)
It was there held that a conspiracy to hiss an actor off the
(1) 23 Q. B. D. 626.
(2) (1843–4) 6 Man. & G. 205, 953.
(3) [1901] A. C. at p. 503.

C. A.

1903

GIBLAN

V.

NATIONAL
AMALGA-

MATED

UNION OF
GREAT

IRELAND.

Stirling L.J.

stage, and so injure him in his trade or calling, was illegal, and that acts done in pursuance of such a conspiracy were not excused by shewing that the actor was an unfit person to appear before the public. So here, the acts of the defendants Williams and Toomey were not excused, in my opinion, LABOURERS' by the fact that the plaintiff had been guilty of defalcations and owed a considerable sum to the trade union. I do not BRITAIN AND in the least extenuate the wrongs suffered by the trade union at the hands of the plaintiff: I think he behaved badly and the trade union shewed him great forbearance: still, even a criminal ought not to be persecuted but to be punished according to law. If the plaintiff was guilty of a criminal offence he might and ought to have been prosecuted, in which case the appropriate punishment would have been meted out to him by a legal tribunal. If he failed to pay a just debt, the law provides ample means for enforcing payment of it. In certain cases, though not universally, the non-payment of a debt is punishable by imprisonment. The plaintiff might possibly have been punished in this way: an attempt to punish him was made and was defeated on technical grounds only; but, so far as I can see, the attempt might have been repeated with a fair prospect of success. This was not done, but Williams and Toomey adopted the course which has resulted in the present action. If the existence of the default or debt were admitted as a valid excuse for depriving a defaulter or debtor of his employment, a punishment might be inflicted on him far greater than that which is allowed by law.

I come, therefore, to the conclusion that the defendants Williams and Toomey were guilty of a tort in respect of which they are liable to the plaintiff in this action; and I pass on to consider whether the defendants, the trade union, are also liable.

Now, Williams and Toomey were the servants and agents of the trade union; and the principle which governs the liability of the last-named defendants for the acts of their agents is expressed with great clearness by Willes J. in delivering the judgment of the Court of Exchequer Chamber in

Barwick v. English Joint Stock Bank. (1) He says: "The general rule is, that the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the master's benefit, though no express command or privity of the master be proved." This principle was expressly held to be applicable to trade unions in Taff Vale Ry. Co. v. Amalgamated Society of Engineers. (2)

Under

IRELAND.

Stirling L.J.

It is, then, to be inquired whether Williams and Toomey BRITAIN AND committed the acts complained of in the course of the service of the trade union and for the benefit of that body. the rules of the union it was part of the duties of the executive committee to protect its funds from misappropriation, with power to prosecute any officer of the union or member or other person who appropriated, misapplied, or withheld the funds of the union. The executive committee clearly had power to direct the officers of the union to recover the funds misappropriated by the plaintiff. Further, in the absence of the executive committee, Williams, the general secretary, had full power to take any action for the executive committee that the rules allowed. It must be taken that Williams and Toomey, in doing what they did, were acting as officers of the union charged with the duty of recovering the misappropriated fund from the plaintiff. What they did was a tort. Further, it was committed for the benefit of the union. It seems to me that all the conditions pointed out by Willes J. were satisfied. It was said, however, that the acts of the defendants Williams and Toomey were beyond the powers of the executive committee as defined by rule 14. It may be that, if a member of the trade union had applied to the Court to interfere by way of injunction to restrain those two defendants from committing the acts of which the plaintiff complains, the Court would have seen its way to interfere, on the principles laid down in Howden v. Yorkshire Miners' Association (3); but the question is a different one when the plaintiff complains of a wrong which has actually been committed by the agents of the trade union. The case of Poulton v. London and South Western (1) L. R. 2 Ex. 259, at p. 265. (3) [1903] 1 K. B. 308.

(2) [1901] A. C. 426, at p. 433.

C. A.

1903

GIBLAN

v.

NATIONAL
AMALGA-

MATED

UNION OF

Ry. Co. (1) was relied on by counsel. It was there held that where the servant of a railway company committed a wrong which the company, under the Acts incorporating it, had no power to do, the company was not liable. There, if all the shareholders of the railway company had met and purported LABOURERS' to confer authority on the servant to do what he did, they could not have bound the company. In the present case the BRITAIN AND members of the trade union are under no such incapacity: if they all concurred they could have conferred authority on Williams and Toomey to do what they did. I think that the present case falls within the principles laid down in Limpus v. London General Omnibus Co. (2) rather than within Poulton v. London and South Western Ry. Co. (1), and consequently that the trade union is liable.

GREAT

IRELAND.

Stirling L.J.

I think, therefore, that this appeal ought to be allowed.

[The appeal was allowed with costs, liberty being given to the plaintiff to apply for an injunction, if necessary, to restrain any further wrongful acts by the defendants, or any of them.]

Appeal allowed.

Solicitors George David & Evans, Cardiff; Meyrick &
Davies, Cardiff.