sive of the question under consideration. A judgment was entered up in the District Court, under a warrant of attorney in a judgment note made in Pennsylvania, which authorized any attorney in any court of record within the United States to confess judgment against the maker of the note. A petition was filed by the maker of the note to have the judgment declared void, and the court so ordered.

"On appeal the Supreme Court said: 'It is claimed by appellant that the principles of the common law authorizing a warrant of attorney to confess judgment are in force in this State, and that the provisions of our Code respecting the recovery of judgment by action are merely cumulative. We do not think this position is correct. The whole subject of recovery and rendition of judgment is fully reviewed in the Code, and the course to be pursued in obtaining judgment is specifically pointed out. A confession of judgment pertains to the remedy. A party seeking to enforce here a contract made in another State must do so in accordance with the laws of the State. Parties cannot, by contract made in another State, ingraft upon our procedure here remedies which our laws do not contemplate nor authorize.' Hamilton v. Schoenberger, 47 Iowa, 385.

** *

ent earnestness, and we have carefully examined the various propositions discussed and authorities cited in the light of the suggestions thus made by counsel, and after having fully considered the case, we are disposed to concur with the Appellate Court, both in its conclusions, and in the process of reasoning by which those conclusions are reached. The judgment of the Appellate Court will therefore be affirmed.

CRAIG, C. J. (dissenting). I do not concur in this decision. Forcible detainer is a mere civil proceeding authorized by the statute, under which the owner of lands may recover possession where the possession is unlawfully withheld. Forcible detainer is not an action of tort. At an early day this doctrine was announced in Robinson v. Crummer, 5 Gil. 222. It is there said: "At common law, the party was liable to indictment, and might be convicted of either a forcible entry or a forcible detainer, each being considered a distinct offense. Not so under our statute. The proceeding is purely a civil remedy, the sole object of which is to regain the possession that has been invaded."

If it be true that a judgment could not be confessed under a cognovit in forcible detainer at common law upon the ground that the action was a tort, that fact does not, in my judgment, establish the doctrine that a judgment could not be entered under a cognovit in forcible detainer, as that action is known and recognized under our statute. A cognovit to confess a judgment on a note, bond or contract for a debt may be given, and a judgment rendered under such a cognovit has always been regarded as valid and binding. If

"A fortiori, parties within the State cannot by contract ingraft upon the procedure prescribed for a summary proceeding, a remedy or practice not warranted by the statute. While parties by cousent may waive rights, they cannot thus amend the law. A fundamental requisite to the validity of a judgment is that the court should have jurisdiction of the subject-matter and of the parties. A judgment against a defend-binding and obligatory on a contract to pay money, ant, who has not been served at all with process, and who has not appeared, is a nullity. The record shows no process to the defendant, and no appearance by him, but shows a departure from the course specifically pointed out by the statute, and an attempt to give jurisdiction of the defendant, and enter judgment against him in a manner which the statute does not contemplate nor authorize.

"A confession of judgment upon a warrant of attorney in an action of forcible detainer in a court of record is as irregular and unauthorized as it would be in a Justice's Court. Such court of record does not proceed in forcible detainer by virtue of its power as a court of general jurisdiction, but derives its authority wholly from the statute, and in such proceeding is therefore to be treated as a court of special and limited jurisdiction. 2 Phil. Ev. 946, Cow. & H. notes; Burns v. Nash, supra. A court of special and limited jurisdiction, like a Justice's Court, has no authority to enter a judgment by confession on a warrant of attorney, even in a case where such judgment would be authorized in a court of record by the common law. Alberty v. Dawson, 1 Bin. 105.

"From no point of view are we able to sustain the authority of the court to enter the judgment appealed from. We have carefully examined the question, and re-examined the views expressed in the opinion of Mr. Justice McAllister in Burns v. Nash, supra, and such re-examination has tended to confirm us in the position there announced. The court had no power to enter the judgment in this form of proceeding on the warrant of attorney contained in the lease, and the judgment is therefore coram non judice and void, and must be reversed."

Williams & Thompson, for appellant.

Moses & Newman, for appellee.

Per CURIAM (after stating the facts as above). We are satisfied with and adopt the foregoing opinion of the Appellate Court. Counsel for the appellant have furnished us with a brief criticising both the conclusions and reasoning of the opinion with great appar

why not on a contract to surrender possession of a lot or tract of land? A judgment rendered on a note or bond grows out of a breach of contract. So too a judgment for forcible detainer grows out of a breach of contract; and, if a cognovit to render judgment in the one case may be sustained upon principle, I see no reason why it may not in the other.

Again, in Fabri v. Bryan, 80 Ill. 182, this court held that, where a lease contains a license to the landlord to enter into possession of the leased premises without process of law, and expel and remove the tenant, and use such force as may be necessary in doing so, the landlord may enter and remove the tenant after the expiration of the term, and the tenant cannot maintain an action of trespass against the landlord. If, as held, the tenant may make a lawful contract with the landlord, under which the latter may enter and remove the tenant, what principle of law forbids the tenant from incorporating in a lease a provision under which, upon default of surrendering possession at the end of the term, a judgment for possession may be confessed in a court of competent jurisdiction?

WILKIN, J. I concur in the views expressed by Chief Justice Craig.

MAGRUDER, J. I concur in the dissenting opinion of Chief Justice Craig.

and shippers in China as shipped their tea exclusively in vessels belonging to members of the association a rebate of five per cent on all freights paid by them. The plaintiffs, who were rival ship-owners, trading between China and Europe, were excluded by the defendants from all the benefits of the association, and in consequence of such exclusion sustained damage. Held, that the association, being formed by the defendants with the view of keeping the trade in their own hands, and not with the intention of ruining the trade of the plaintiffs, or through any personal malice or ill will toward them, was not unlawful, and that no action for a conspiracy was maintainable.

ACTION tried before Lord Coleridge, C. J., without

a jury, in which the plaintiffs claimed damages for a conspiracy to prevent them from carrying on their trade between London and China, and an injunction against the continuance of the alleged wrongful acts.

The plaintiffs were a shipping company incorporated for the purpose of acquiring shares in certain steamships-the Sikh, Afghan, Pathan and Ghazee-and became the owners of a large number of shares in these ships, which were built for and employed in the China and Australian trades. The defendants were an associated body of ship-owners trading (among other places) between China and London, who formed themselves into a conference or association for the purpose of keeping up the rate of freights in the tea trade between China and Europe, and securing that trade to themselves by allowing a rebate of five per cent on all freights paid by shippers who shipped tea from Europe in conference Vessels only. The defendants alleged (and as is found in the judgment, truly alleged), that the large profits derived from the tea freights alone enabled them to keep up a regular line of communication all the year round between England and China, and that without a practical monopoly of the tea trade they must cease to do so. The plaintiffs were admitted to the benefits of this conference for the season of 1884, when the following circular was widely distributed by the defendants among the merchants engaged in the China trade:

"SHANGHAI, 10th May, 1884. "To those exporters who confine their shipments of tea and general cargo from China to Europe (not including the Mediterranean and Black Sea ports) to the P. & O. Steam Navigation Co.'s, Messagerie Maritime Co.'s, Ocean Steamship Co.'s, Glen, Castle, Shire, and Ben lines, and to the steamships Oopack and Ningchow, we shall be happy to allow a rebate of five per cent on the freight charged.

Exporters claiming the returns will be required to sign a declaration that they have not made nor been interested in any shipments of tea or general cargo to Europe (excepting the ports above named) by any other than the said lines.

'Shipments by the steamships Afghan, Pathan and Ghazee on their present voyage from Hankow will not prejudice claims for returns.

Each line to be responsible for its own returns only, which will be payable half-yearly, commencing 30th October next.

"Shipments by an outside steamer at any of the ports in China or at Hong Kong will exclude the firm making such shipments from participation in the return during the whole six-monthly period within which they have been made, even although its other branches may have given entire support to the above lines.

"The foregoing agreement on our part to be in force from the present date till 30th April, 1886."

In May, 1885, the defendants issued and widely distributed among the merchants in the China trade the

following circular, which had the effect of excluding the plaintiffs from the benefits of the couference:

"SHANGHAI, 11th May, 1885. "Referring to our circular dated 10th May, 1884, we beg to remind you that shipments for London by the steamships Pathan, Afghan and Aberdeen, or by other non-conference steamers at any of the ports in China or at Hong Kong, will exclude the firm making such shipments from participation in the return during the whole six-monthly period in which they have been made, even although the firm elsewhere may have given exclusive support to the conference lines."

The plaintiffs by their statement of claim alleged a conspiracy on the part of the defendants to prevent the plaintiffs from obtaining cargoes for their steamers, such conspiracy consisting in a combination and agreement amongst the defendants, having by reason of such combination and agreement control of the homeward shipping trade, pursuant to which combination and agreement shippers were bribed, coerced and induced to agree to forbear, and to forbear, from shipping cargoes by the plaintiffs' steamers. In the alternative, the conspiracy was alleged to consist of a combination and agreemeut amongst the defendants, pursuant to which the defendants, with intent to injure the plaintiffs and prevent them obtaining cargoes for their steamers, agreed to refuse, and refused, to accept cargoes from shippers except upon the terms that the shippers should not ship any cargoes by the plaintiffs' steamers, and by threats of stopping the shipment of homeward cargoes altogether, which they had the power and intended to carry into effect, prevented shippers from shipping cargoes by plaintiffs' steamers. It is unnecessary for the purposes of this report to set out the defense except to say that the defendants denied the alleged conspiracy and combination, and further contended that the statement of claim disclosed no cause of action.

Sir Henry James, Q. C., Crump, Q. C., Barnes, Q. C., and Sims Williams, for plaintiffs.

Sir Charles Russell, Q. C., Sir Horace Davey, Q. C., Finlay, Q. C., and Pollard, for defendants.

LORD COLERIDGE, C. J. This case has stood over from causes not under my control for much longer than I could have desired, but at last I am able to give my opinion in it.

The plaintiffs are a company of ship-owners trading, or desirous of trading, between Australia and this country, taking China by the way; and desirous in particular of sharing in the transport of what has been called the "tea harvest," the time of which is in the late spring and early summer months, and the places for loading which, as far as this case is concerned, are Shanghai at the mouth of the Yangtze-kiang and Hankow, a place about 600 miles up the stream of that great river. The defendants are a number of great ship-owners, companies and private partnerships, trading for the most part from this country to China, and from China to this country direct, and who being desirous to keep this very valuable trade in their own hauds, and to prevent if they can the lowering of freight (the ruinous lowering, as they contend) which must follow, as they say, from absolutely unrestricted competition, entered into what they call a conference for the purpose of working the homeward trade, by offering a rebate of five per cent upon all freights paid by the shippers to the conference vessels, such rebate not to be paid to any shipper who shipped any tea at Shanghai or Hankow (the rebate was not confined to these ports, but I think that an immaterial circumstance) in any vessels but those belonging to the conference. The agreement between the members of the

conference was entered into in April, 1884; and during that year the now plaintiffs were admitted to share in its benefits. They were excluded in 1885. They refused to acquiesce in the exclusion, and a commercial conflict was the result, in which, as I understand, both sides suffered heavily, and it is for the loss which the plaintiffs say they suffered by the proceedings of the conference, who they allege "bribed, coerced and induced" shippers to forbear from ship-Rex v. de Berenger, 3 M. & S. 67, at p. 76. It is otherwise ping cargoes in the plaintiffs' vessels, that this action is brought. The question is, will the action lie? If I hold that it will, the damages are to be inquired into and settled elsewhere.

of the many cases which were cited in argument.
I believe, that fairly considered and rightly looked at,
every case, including the much-canvassed one of Rex
v. Turner, 13 East, 228, will be found to be consistent
with the principles I have stated, although there are
isolated dicta of very great judges, probably in their
actual terms-if the terms are rightly reported-going |
beyond the law, certainly quite at variance with each

other.

On one side are extreme cases, such as Keble v. Hickringill, 11 Mod. 74, 131, in which at first Lord Holt doubted, but finally gave judgment for the plaintiff; and Reg. v. Druitt, 10 Cox C. C. 592, in which, unless he is misreported, Bramwell, B., said he thought a combination to treat a man with "black looks" was an indictable misdemeanor (a decision, if it be one, which might assuredly land us in unexpected and singular results); and the very broad dictum of Pratt, C. J., in Rex v. Journeyman Tailors of Cambridge, 8 Mod. 11, that "a conspiracy of any kind is illegal, though the matter they conspired about might have been quite lawful for them to do." These are perhaps as extreme as can be found on one side; on the other is the questioned and possibly overruled case of Rex v. Turner, 13 Eust, 228, decided by Lord Ellenborough, C. J., and Grose, Le Blanc and Bayley, JJ. The view which Lord Ellenborough took of the facts of that case appears rather from his interlocutory observation at page 250 than from his judgment on the page following. It is difficult not to acquiesce in the good sense of Lord Ellenborough's observations, and speaking, as I wish, and indeed ought to speak, with grateful respect of Lord Campbell, I do not feel so sure that Lord Ellenborough was wrong simply because Lord Campbell, in Reg. v. Rowlands, 17 Q. B. D. 671, at p. 686, says he has no doubt it was so. Be that as it may, aud if Lord Ellenborough and the court did wrongly apply the principles of law in Rex v. Turner, 13 East, 228, the principles are clearly and forcibly stated in accordance with what I have endeavored to express by Lord Ellenborough himself. The case of Rex v. Eccles, 1 Leach C. C. 274, before Lord Mansfield, C. J., Willes and Buller, JJ., turned upon pleading; the motion was in arrest of judgment; the decision was that after verdict the indictment was good; and the case itself is expressly commented on, explained and distinguished by Lord Ellenborough in Rex v. Turner, 13 East, 228.

There were a number of cases, of which Winsmore v. Greenbank, Willes, 577; Lumley v. Gye, 2 E. & B. 216, and Bowen v. Hall, 6 Q. B. D. 333, were examples, in which the question of conspiracy did not arise; but they were cited to show what cases of interference with what sort of contracts had been held actionable by the courts at the suit of one individual against another. Now all these cases bind me sitting here, and I neither question nor desire to evade their authority. But they do not help me much. I do not doubt the acts done by the defendants here, if done wrongfully and maliciously, or if done in furtherance of a wrongful or malicious combination, would be ground for an action on the case at the suit of one who suffered injury from them. The question comes at last to this, what was the character of these acts, and what was the motive of the defendants in doing them? The defendants are traders with enormous sums of money embarked in their adventures, and naturally and allowably desirous to reap a profit from their trade. They have a right to push their lawful trade by all lawful means. They have a right to endeavor by lawful means to keep their trade in their own hands, and by the same means to exclude others from its benefits if they can. Amongst lawful means is certainly included the inducing by profitable offers customers to deal with them rather than with their rivals. It follows that they may, if they think fit, endeavor to in

duce customers to deal with them exclusively by giv. ing notice that only to exclusive customers will they give the advantage of their profitable offers. I do not think it matters that the withdrawal of the advantages is out of all proportion to the injury on those who withdraw them by the customers, who decline to deal exclusively with them, dealing with other traders. It is a bargain which persons in the position of the defendants here had a right to make, and those who are parties to the bargain must take it or leave it as a whole. Of coercion, of bribing, I see no evidence; of inducing, in the sense in which that word is used in the class of cases to which Lumley v. Gye, 2 E. & B. 216, belongs, I see none either.

One word in passing only on the contention that this combination of the defendants was unlawful because it was in restraint of trade. It seems to me it was no more in restraint of trade, as that phrase is used for the purpose of avoiding contracts, than if two tailors in a village agreed to give their customers five per cent off their bills at Christmas on condition of their customers dealing with them and with them only. Restraint of trade, with deference, has in its legal sense nothing to do with this question.

But it is said that the motive of these acts was to ruin the plaintiffs, and that such a motive, it was held, will render the combination itself wrongful and malicious, and that if damage has resulted to the plaintiffs an action will lie. I concede that if the premises are established the conclusion follows. It is too late to dispute, if I desired it, as I do not, that a wrongful and malicious combination to ruin a man in his trade may be ground for such an action as this. Was then this combination such? The answer to this question has given me much trouble, and I confess to the weakness of having long doubted and hesitated before I could make up my mind. There can be no doubt that the defendants were determined, if they could, to exclude the plaintiffs from this trade. Strong expressions were drawn from some of them in cross-examination, and the telegrams and letters showed the im portance they attached to the matter, their resolute purpose to exclude the plaintiffs if they could, and to do so without any consideration for the results to the plaintiffs, if they were successfully excluded. This, I think, is made out, and I think no more is made out than this. Is this enough? It must be remembered that all trade is and must be in a sense selfish; trade not being infinite, nay the trade of a particular place or district being possibly very limited, what one man gains another loses. In the hand to hand war of commerce, as in the conflicts of public life, whether at the bar, in Parliament, in medicine, in engineering (I give examples only), men fight on without much thought of others, except a desire to excel or to defeat them. Very lofty minds, like Sir Philip Sidney with his cup of water, will not stoop to take an advantage if they think another wants it more. Our age, in spite of high authority to the contrary, is not without its Sir Philip Sidneys; but these are counsels of perfection which it would be silly indeed to make the measure of the rough business of the world as pursued by ordinary men of business. The line is in words difficult to draw, but I cannot see that these defendants have in fact passed the line which separates the reasonable and legitimate selfishness of traders from wrong and malice. In 1884 they admitted the plaintiffs to their conference; in 1885 they excluded them, and they were determined no doubt, if they could, to make the exclusion complete and effective, not from any personal malice or ill will to the plaintiffs as individuals, but because they were determined, if they could, to keep the trade to themselves; and if they permitted persons in the position of the plaintiffs to come in and share it they thought, and