both parties to maintain a high price for coal, but that they differed in policy, the defendants, with no intent to injure the masters, proclaiming "stop days," so as to limit pro duction contrary to the owners' views of their interest. The Court said that in all the cases cited to him of recoveries for procuring breach of contract the element of actual malice was regarded as essential, thus differing with Crompton, J., in Lumley v. Gye, whose dictum that "with notice" is equivalent to "wrongfully and maliciously" the Court did not consider good law, if it meant that a mere notice of the contract's existence raises an irrebuttable presumption of malice; since that would prevent a brother from persuading a sister to quit an unhealthful employment, and render everyone who, with such notice, should employ B, who had broken a contract with A, guilty of tort toward A. From the cases cited the Court deduced the rule that what a man does in the use of his own property or exercise of his own trade for his own advantage is not actionable, although it injure another and seem selfish and unreasonable; while the same thing is actionable, if done on purpose to harm or to injure another, without reference to the actor's own lawful gain, or the lawful enjoyment of his own rights; in the decision of which question the good sense of the tribunal before which it came would have to analyze the circumstances and discover on which side of the line. each case fell. Having found in the discharge of this function that the acts of the individual defendants were not unlawful or malicious, and that there is good authority for saying that a combination entered into for the mere purpose of doing a lawful act cannot constitute an actionable conspiracy, unless entered into with a malicious intention of damaging the plaintiff, and actually causing him damage; the Court found for the defendants; but, adding, in obvious and excusable incertitude, the suggestion that in the event of reversal it would be necessary to look into the matter of damages, urged the parties to agree among themselves. What are we to conclude then, from this examination of the Tubwomen's rule? Apparently this: That at no 1 Citing Lumley v. Gye, supra ; Bowen v. Hall [1881], 6 Q. B. D. 333. The Mogul case, supra; Reg. v. Rowlands [1851] 17 Q. B. 671; and other cases supra. time has every confederation of men for a common purpose been unlawful; but at every time, and at the present moment, such a combination, whether of laborers or capitalists, may become liable civilly, and, except as the common law has been modified by statute, criminally, although its purpose be only to do that which its individual members might do without incurring legal liability; furthermore, that such combinations may be unlawful in the sense of being unenforceable inter se, even when they do not subject their members to liability in actions, civil or criminal. We also seem justified by weight of authority in concluding that, while the existence of malice alone does not give rise to a cause of action, bare intent being fluctuating, as said in Starling's case, and not actionable, and while, generally speaking, the motive of a sole actor will not subject him to legal liability for an act within his right, and involving no breach of legal duty, even though damage result therefrom to a third person, nevertheless liability for crimes, of which conspiracy is one, does depend upon intent, except in certain statutory offences absolutely forbidden; and so, too, in a well-defined class of civil cases, including not only libel, malicious prosecution and abuse of process, but also cases of fraud, evil intent is the criterion by which legal liability is fixed. Nor are we without authority for saying that such an expression as "There can be no conspiracy to do a lawful act" is a mere begging of the question. To be sure, the gist of conspiracy is an agreement; but an agreement to do something harmful and unjustifiable, not something beneficial; to infringe the rights of those against whom the conspiracy is directed, not merely to exercise rights to the incidental injury of third persons; and consequently the intent of the conspirators becomes an element in determin ing, not only their criminal, but also their civil, liability; especially now that the remedy of those aggrieved is coming to be that of injunction and not that by indictment. Finally we may still say, as did Mr. (afterwards "Sir") James Fitz-James Stephen forty years ago: "The law of conspiracy as it stands is an awkward and unsightly, but in some respects highly convenient, patch upon an old and ragged garment." WILLIAM A. PURRINGTON. THE STEEL CORPORATION CASES. On April 1, 1902, the directors of the United States Steel Corporation adopted a resolution providing for a conversion of $200,000,000 of its preferred capital stock into second mortgage bonds of the corporation, to be effected by the redemption and retirement of the stock, “out of the bonds or the proceeds of the bonds." In addition, $50,000,000 of these bonds were to be issued for cash at par. The scheme was made expressly contingent upon its adoption by the shareholders, and required the opening of the bond subscription to all the holders of preferred stock. At the same time a tentative contract was authorized by the directors, also contingent on adoption by the stockholders, known as the Bankers' Contract, whereby a banking house, on behalf of itself and others to be associated with it in a syndicate, agreed to take $100,000,000 of the bond issue; $80,000,000 in exchange for stock to be surrendered, and $20,000,000 for cash, with an option on such additional part of the issue not subscribed for by stockholders at large as it should desire. Upon the bonds so taken the syndicate was to receive a commission of four per cent., amounting to $4,000,000 on the guaranteed amount, and to not more than $10,000,000 in all. Each branch of this project was later approved and adopted in a separate resolution at a specially called stockholders' meeting. The validity of this scheme was attacked in two suits in the Court of Chancery of the State of New Jersey, known as the Berger1 and the Hodge suits. In each of them the bond issue was restrained by a preliminary decree of the Vice-Chancellor, which was afterwards reversed in the Court of Errors. In the first, or Berger suit, to which the corporation and the bankers' firm were the only parties. 1 Berger v. U. S. Steel Corporation (N. J. 1902) 53 Atl. 14 (in Chancery) S. C. 53 Atl. 68 (in Errors). 2 Hodge v. U. S. Steel Corporation (N. J. 1902) 53 Atl. 601 (in Chancery); S. C. 54 Atl. 1 (in Errors). defendant, the opinion of the highest court concerned itself with questions of corporate power; in the other, it considered chiefly the regularity of the corporate action, although in the later case complainant's counsel again raised, in a somewhat varied form, the objection of lack of statutory power. In the second litigation the directors of the corporation individually were added parties. The Vice-Chancellor granted an injunction to Mrs. Berger, enjoining so much of the bond issue as was not to be for cash, on the ground that a general statute of 1902, understood to have been passed with the special object of authorizing this issue of bonds, was essential to their issue, but was invalid under the New Jersey Constitution because impairing the obligation of the contract of the corporation. with its members, by subjecting existing non participating shareholders to a new mortgage lien, to the prejudice of their stock. This, upon the theory that a reserved legislative power to amend corporate charters does not extend to a change in the contract relations of the corporations even with their own members. This doctrine was in harmony with the current of New Jersey decisions,1 though hardly with jurisprudence elsewhere." The Court of Errors, while throwing doubt around the new Jersey doctrine, avoided a dissent from it by holding the Act of 1902 not essential to the issue of bonds in exchange for stock of the corporation, that power already existing under the law of 1896, and adjudging it not an enabling, but, on the contrary, a restrictive act. Inasmuch as the complainant's rights had accrued after and under the Act of 1896, they were subject to it. This result affords an interesting commentary on the uncertainty of curative legislation. The Act designed to facilitate the issue of bonds was, in order to save them, pronounced not an aid to them, but a restriction on them. It was further held, outside the point passed on by the Vice-Chancellor, that under the New Jersey statute corporations had power to purchase their own shares, either 1 Kean v. Johnson (1853) 9 N. J. Eq. 401. (1867) 18 N. J. Eq. 178. Zabriskie v. R. R. Co. 2 Mayor v. Railway Co. (1889) 113 N. Y. 311. Durfee v. Old Colony R. R. Co. (Mass. 1862) 5 Allen 230. Venner v. U. S. Steel Corp. (1902)、 116 Fed. Rep. 1012. 2 Wilgus on Corp. p. 1472, Note. for cash, or on credit, or in exchange, and to incur debt therefor, and had the further power to pay that debt by their obligations, and that, therefore, the issue of bonds in payment or redemption of the retired stock was within. the corporate powers. This was the very marrow of the controversy. Without noticing the minor aspects of the decision or entering into the details of the case, it may be said that the statute regulating the power to redeem or retire stock prescribed certain conditions precedent to its exercise. One of them made the Act available to companies "whose assets at such time after deducting the amount of its indebtedness, shall be certified in the judgment of the officers making such certificate to be at least equal to the amount of preferred stock issued and outstanding." Such a certificate was held by the Court to be not conclusive, but only presumptive evidence of the amount of assets; and much time was consumed in the second case in a dispute over the valuations made by the Company's officers. The statute also specified the "ways" which were conditional to its purchase, one of which was "by the purchase at not above par of certain shares for retirement." This was the way relied upon to sustain the retirement of this stock. On reading the opinions in both cases, it is noticeable that while all other phrases in these statutes have received careful consideration and instructive exposition, there was no discussion of the effect of the words “at not above par." In the final briefs in the Hodge case we find the obstacle to the conversion scheme created by these words pressed upon the attention of the Court, as overlooked in the Berger case, but apparently without avail. It was vigorously contended in behalf of the complainant that to countenance a purchase of stock by payment in securities of unfixed value was to afford cover for a purchase price above par; that the four per cent. commission to the syndicate in effect raised the price to 104, and that in all probability the bonds when issued would sell at a still higher figure. That the prophecy miscarried should not rob the argument of its value. It might have proved correct in the |