Supreme Court Of Judicature. - LAW BPORET, March 15. {Befarc the MASTDP. of the ROLLs oizi LORDaJIusTIozs BOWEN and FRY.) THE S1oGUI STERIASHIP C03MANY (LnsITzD) Y. t'GREGOR, GOW, AMD CO. AND OTHERS. Tlho argpmepts in this case were resumed this mom- ing. The facts have already been fully reported in 5rhe Times. The plaintiffs were the owners of certain steamships known as the Afghan and Fathan. The defendants wera an association of large shipowning companies, who had united iD what they called a conference for the purpose of keeping to' themselves the homeward tea trade from China and of preventing the lowering of freights. For this purposc they had offered a rebate of 5 per cent. upon aIl treights paid by shippers in China to conference vessels,such rebate not to be paid to any shipper who shipped any tea in any vessels bat those belonging to the couference. They had also endeavoured to oppose in every way the Afghan and the Pathrn, and to render their attempts to get cargo unsuccessful. The plaintiffs then brought this action for the damage suffered hy them from the proceedings of the conference, vho had, as they alleged, bribed, coerecd, and induced shipgers to refrain from shipping cargoes in the plaintifls vessels. Lord Coleridge having held that this action would not lie, the plain- tiffs appealed. Sir Henry James, Q.C., Mlr. Crump, Q.C., Mr. Gorell Barnes, Q.C., and Mr. Sins Williams were for the plaintiffs ; and Sir Charles Russell, Q.C., Sir Horace Davey, Q.C., Mr. Finlay, Q.C., and Mr. I'ollard for the defendants. SIR HENRY JAMES, Q.C., continuing his argumrent, referred to the American cases bearing onthe question In " The State v. Gleddon " (59 " Amer. Rep.," 723), where there was a combination of workmen to force the masters to raise their wages, it was said that the primary, and not the ultimate object, of the conmbination must be regarded, and where the primary obiect was the ruin of the master the combination was illegal. In the recent case of " The State of New York v. North River Sugar Company," reported in the Railway Corporation Law Journal, published at New York on January 19, 1S89, vol. 5, p. 56, it was said that competition was the life of trade, and a combination to exclude competition to the detriment of the public was unlawful, and this rule was ap- plicable to every case. [LORD JuSTiCE BowEN.-No doubt the old views of combinations were strict, but is it so certain that a combination to raise prices is injurious to the public in the long run ? Must not such combinations in the end produce a lowering of prices?] No doubt the prices may be lowered during the fight, but ultimately, when the competitors are ruined, there will be a raising of prices. The con- spiracy is the offence, and it is immaterial whether they carry their object into effect or not. This was a combination with the intention of raising prices, and though they may have failed to do so that does not render the combination any the less illegal. [LORD JusTiCi FLY.-AXe there not two nestions ? First, whether it is a combination aimed at monopoly secondly, whether it is a combination the necessary result of which will be monopoly, whatever may have been the motive of the combination.] The combination itself is the 'offence. [LORD JUSTICE BoWEN.-I am not certain either whether these combinations, what- ever their object, are necessarily injurious to the public, or whether a combination to raise prices is necessarily injurious to the public according to modern commercial lights.] The object of this combination is detrimental to the public. [LOED JurSTICE BoWEm.- But if the combination succeeded, after driving off these competing vessels, in raising their rates enor- mously, the high rates would attract competition as a candle attracts moths.] The conference would lower its rates as it has done in this case to drive away the competitors. [The MASTER of the HIoTLS.-Then it depends which can hold out the longest, the ring or the outsiders.] Certainly. [LORD JUSTICE BOWRN.- The view of what is public policy has altered, and I do not think we are bound by the cases in which Judges have laid down the law on this point by the earlier light of other days.] The American cases which I have cited are modern, and refer to the public policy of present times. Some one must determine whether a combination is iDjurious to the public or not. I think that is a question of fact. [LOl.D JUSTic Bowvs;.- The Judges have always treated it as a question for themselves.] No doubt in former days Judges very much infringed on the province of the jury. In the case of the monopolies Lord Cole refers to a very ancient law --" Thou shalt not take in pledge the nether and the upper millstone, quia animam suaam appoMiit tibi (Deut. xxiv., 6)," and says that by this it appears that every man's trade maintains his life, and that therefore lie ought not to be deprived nor dispossessed of it any more than of his life. [LonD JUSTICE BOWEzN-Has it ever occurred to you, Sir Henry, that Lord Coke in one res- pect resembles the enemy of mankind, in that he can always quote Scripture when it suits his purpose ?] In " Stanton v. Allen" (5 " Denis's New York Re- ports," 434), and " Central Salt Company v. Guthrie " (35 " Ohio St. Reports," 666) similar combinations were held to be illegal, and contrary to public policy. The public have a right to require that the course of trade shall be kept free from tan- reasonable obstruction ( Erle, ' Law Affecting Trades Unions," 6.) [LoRD JUSTiCE BowEN.-I shotld like to be quite sure that this combination is not a trades union within the Trades UJnion Act, 1876.] We will consider that point. If the combinatton is for an immoral or an improper object, or for an object in- jurious to the public, it is illegal, although its object may not be, strictlv speaking, unlawful. Mr. CRUMP, Q.C., following on the same side, said that even assuming a combination to fix prices or to obtain a monopoly for itself was lawful, nevertheless directly that combination embarked on a crusade against a particular rival trader, whom it indicated, it became illegal. The defendants here had selected a rival trader, and had expressed their determination to drive him away from the port of Hankow and to pre- vent him from trading at that port. SIRlIoRAcEDAvEY, Q.C., forthedefendants,saidthat most novel doctrines had been propounded in support of the plaintiffs' case. The pleadings themselves showed no cause of action. The plaintiffs were not driven away from the trade. T'hey secured full cargoes, while the conference vessels went away enipty. Their real complaint was not that they had been pzevented from trading, but that, owing to the competition of the defendants, they lad been unable to obtain the high rate of freight they desired. The defendants kept up regular lines of vessels between En7land and China during the bad season, as well as the tea harvest and in order not to injure each-,other they had agreed as to the rate of freight to be asked by them. No one denied that the plaintiffs had a per- fect right to send their vessels to Bank-ow. The lefendants were enabled to offer the shippers superior terms, and thev did offer them ; and in this way the plaintiffs were compelled to accept a lower rate of freight than they desired. That was the only damage which they had sustained. There were therefore, in his opinion, no great legal dificulties in the case. [The MASCTER. of the RoLLbS.-Is not the effect of the agreement to shut the plaintiffs out ? ] iNo, they can come and compete with the defendants. [The- MASTRP. Of the Rou.s.-But they cannot do so successfully without asking the defendants to let them trade.] The freight depends on the supply and demand in respect of tonnage. The agreement was entered into by the defend,auts for the legitimate purpose of pro- tecting their freight and of protecting themselves from the vessels trading to Australia, who might come just at the tea harvest for the purpose of takig the cream of the trade, leaving the skim milk of the dull seasonfor the defendants. [The MASTER of the RoLrs. -But is not a combination of persons to give a rebate such as this unlawful, even although it would not bh unlawful for individuals to do so ? ] No. There is no case in the books of an action, the gist of which is the conspiracy. -The act done must be tortious, and the conSpiracy may be an aggravation of that. Here the only opposition to the plaintiffs' ships was the competition of the defendants. There is neither authority nor principle of law to prevent such competition. The argunents for the defendants were not con. cluded when the Court rose. (Before LORDS; JUSTICES CoTTO'N, LnDLtm , and Lops.) ROBINSON V. IVERT. This was an appeal by the plaintiff, Robert Henry Robinson, from a judgment of Sir H. Fox-Bristowe, the Vice Chancellor of the County Palatine of Lan- caster, dated the 20th of November last, refusing the plaintiff any relief in his action. It appeared that on the 28th of February, 1887, the defendants, George Kilvert, Nicholas Kilvert, and Harry Vernon Kilvert, as trustees of the late Nicholas Kilvert, agreed to let to the plaintiff the ground fSoor of a warehobase situate in Garden-street, Manchester, for the term ot seven years from the 25th ot March of that year. The plaintiff, as the defendants were aware, took the warehouse for the purpose of carrying on the business of a paper and twine merchant. The plaintiff went into possession of the ground floor of the warehouse, and had since. carried on the business tbere, as Robinson and Co., of a paper and twine merchant. No formal lease was ever e;ecuted. Some time after the, date of the agreement the defendants commenced carrying on the bisiness of paper box makers in the cellar below the premises taken by the plaintiff, and the plaintiff alleged that the defendants bad carried on, and threatened to continue to carry on, such business in Euch a manner ar to cause a nuisance to the plaintiff and to injure him in carrying on his business. and that, in particular, the defendants had so heated and were stilF so hcating and drying the air in the plaintiff's warehouse as to injure the paper there stored, and to cause damage to the plaintiff in his business and to disturb the plaintiff in the quiet enjoyment and use of the premises demised to him by the defendants. The plaintiff accordingly brougbt an action against the defendants, claiming -an iljunctien to restrain them from contin,ing or repeating the injuries complained of, or committing any injuries of a like kind in respect of the deminsed premises. The plaintig also claimed damages for the acts complained of. The defendants' case was that in the cellar below the premises let to the plaintiff under the agreement there was, at the time of"the commencement of the plaintiff's tenancy (as theplaintiff well knew), a boiler wbich had been used for a packing business formerly carried on in the cellar, and that since the plaintiff's teuancy the defendants hbd resumed the use of the boiler for the purpose of-working machineryconnected with the business of paper bxomakers nowearried on by them inu the said cellar. IXbc defeoldants dened, that they had carried on such business in such a manner as to cause a nuisance to the plaintiff or to injure him in cavrying on his business, or that they threatened or intended so to do. Vice-Chancellor Bristowe gave judgment for the defendants, being of opinion that the case turned upon the'absence of any warranty, either express or implied,having been given by the defendants on entering into the agreement with the plaintiff that the premises about to be let were fit or the purpose of the plaintiff's business, and, in his Lordship's vlew of the case, the plaintiff had failed to establish his right to any relief. Accordingly the learned Judge dismissed thb action with costs. From that decision the plaintiff appealed. Mr. flenu Collins, Q.C., and Mr. Alfred Hopkinson were for the appellant ; Mr. M. Crackanthorpe Q.C., and Mr. Alexander C. Miaberly were for the respondents. At the conclusion of the arguments on the 8th inst., Their LoRDs}ips reserved judgment, which was de- livered this morning, affirming the decision of Vice- Chancellor Bristowe and dismissing the appeal with costs. LoP.D JUSTICE COTTONr said that the appellant was tenant under the respondents of the ground floor of a warehouse in MIanchester. After the agreement for the lease was entered into, the respondents were in possession of the floor or cellar beneath the premises occupied by the appellant. They began making paper boxes there, and. they required a considerable tempera- ture for the purpose of drving their-boxes, and other- wise for their business. They therefore connected a boiler with pipes for heating. their rooims by steam. The heat from the pipes, however, went up to the floor occupied by the appellant. The appellant carried on business as a twine and paper merchant. The paper stored by him consisted partly of brown paper and partly of tissue paper. There was no evidence of any injury being done to the twine stored by him, but the appellant alleged that the heat from the respondents' pi es injured his brown paper and caused him con- siderable loss. Vice-Cbancellor Bristowe beld that the respondents were not liable for that loss. The case seemed to be regarded by him as a different case to that placed before this Court. The learned Vice- Cbancelor had decided that there was no warranty, either express or implied, that the premises let to the appellant were fit for the purpose of his business. But the case was put before their Lordships in a somewhat different way. It was said that the respondents were committing a nuisance. It was also said that they were -interfering with the appellant's proper user of is premises. The heat from the pipes coming to the plairtiff's premises did not appear to be very considerable-some 80deg. Fahrenheit. If it had interfered with an ordinary user it might be a nuisance. But in no case had it been held that where a person was doing something which was not in itself noxious or a nuisance it became so because it caused injury to some particular person or trade. In his Lordship's opinion it would be wrong to say that a man comritted a nuisance by doing something which was not in itself noxious merely because he caused injury to some particular trade. It vwould be wrong to say that he was guilty of a nuisance when that which he was doing did not interfere with the ordinary enjoyment of life and the carrying on of an ordinary trade. The question of nuisance must therefore be set aside. Then the appellant contended that there was an implied covenant by the respondents of which this act of theirs was a, breach. The covenant suggested was that of quiet enjoyment, or a covenant not to interfere with the property granted by the respondents for the use of the appellant. Now, the evidence showed that when the appellant took the premises he said that he should use it as a paper warehouse. That indicated that the respondents knew that the appellant would use the warehouse for the purpose of storing paper. But there was nothing that would indicate that the appellant would carry on trade in this particular kind of paper-namely, brown paper and tissue paper. As to tissue paper, how- ever, it did not appear that injury was done to it by the heat. According to the evidence, the heat would not be iniurious to the business of an ordinary paper merchant. But brown paper was rendered brittle by dryness and lost weight. That, however, was not known to the respondents, and it would be wrong to hold that they did know it. The appellant was unable to make out any implied covenant on the respondents' part any more thal he was able to make out that they had committed a nuisance. If the appellant when he took the premises saw the boiler and found that the temperature was normal, he should have stipulated against any raising of the temperature of his floor. If that had been done, then possibly the parties might have come to some agreement in the matter. But they had not done that ; and it now remained for the appellant to see if he could not take some means of preventing the heat froni the respondents' pipes reaching the paper in his warehouse. In his Lord- ship's opinion the decision of Vice-Chancellor Bristewe was perfectly right, and the appeal failed and must be dismissed with costs. LORDS JusTIsCS LiND)LEY end LoPEs delivered judgments to the like effect. SUFIREAE COURT OF JUDICATURE. COIURT OF APPEAL.