giving its aid to a bad or a faithless man. The dirt upon his hands must be his bad conduct in the transaction complained of. All complainants in equity are human beings, full of faults and sin, and I doubt if there is one case in ten in which the complainant is not somewhat to blame. If the complainant does equity himself, or offers to do it (except in those cases where the rule in pari delicto, etc., comes in), his hands are as clean as the court can require." Ansley v. Wilson, 50 Ga. 421. The plaintiff is not seeking to obtain any relief by virtue of his former connection with the club, and is not, therefore, in pari delicto with the defendants relatively to the cause of action which it brings against them. Its connection with the club ceased before filing the suit, and it has repudiated the club as an unholy alliance. Even in criminal law the locus pœnitentiæ is recognized. The aggressor may repent, and abandon his felonious enterprise, and place himself in a position where he may rightfully invoke the law of self-defense in a subsequent occurrence. Besides, an unlawful combination in restraint of trade is a wrong to the public, as well as to the injured individual. If a man confederates with a burglar to break and enter a house, but abandons the criminal project, his agreement to join in the burglary will not justify an infliction of an injury upon his person by the burglar, and deprive him of his right of self-defense, merely because of the prior agreement to do a criminal act and the abandonment of his unlawful intention. Independently of the conspiracy, the petition states a case of malicious interference with the plaintiff's contract of employment with its employees. At common law the remedies for breach of contract were confined to the contracting parties, and limited to direct damages and consequential damages proximately resulting from the act of him who is sued. This general rule admitted of one exception, and that was the right of action against a stranger for wrongfully enticing away a servant in violation of his contract of service with his master. The exception is said to have been based on the ancient statute of laborers. The early English cases limited the action to the enticement of menial servants, but the later cases, beginning with Lumley v. Gye, 2 El. & Bl. 216, have extended the doctrine beyond menial servants; and by the modern interpretation of this doctrine by the English courts the rule is extended to a malicious interference with any contract. A brief reference to a few English cases will serve to present the evolution and extension of the old common-law doctrine of malicious interference with a contract. Lumley v. Gye, 2 El. & Bl. 216, was a suit for the malicious procuring of an opera singer, who had agreed with the plaintiff to perform and sing at his theater, and nowhere else, for a certain time, to break her contract, and not perform or sing at the plaintiff's theater during the time for which she was engaged. It was there held that an action would lie for maliciously procuring a breach of contract to give exclusive personal service, provided the procurement was during the subsistence of the contract and produced damage; and that to sustain such an action it was not necessary that the employer and employee should stand in the strict relation of master and servant. The opinion was by a divided court. The majority of the judges were inclined to the opinion that an action would lie for the malicious procurement of the breach of any contract, though not for personal services, if by the procurement damage was intended to result, and did result, to the plaintiff. This case was followed in Bowen v. Hall, L. R. 6 Q. B. Div. 333. In 1893 the same question was before the court of appeal of the Queen's bench division (Temperton v. Russell [1893] 1 Q. B. Div. 715), and the cases of Lumley v. Gye and Bowen v. Hall were examined and approved; and these cases were there said to rest upon the principle that to maliciously procure a person to break a contractual relation, which all are bound by law to respect, is actionable; and that a right of action for maliciously procuring a breach of contract is not confined to contracts of personal service. By many it was thought that the House of Lord's case of Allen v. Flood [1898] A. C. 1, conflicted with the doctrine announced in Temperton v. Russell, or at least materially curtailed its scope. But in the later case of Quinn v. Leathem [1901] A. C. 495, both cases-Temperton v. Russell and Allen v. Flood—were elaborately reviewed and analyzed; and, after stating the scope and effect of the latter case, it was ruled that "a combination of two or more, without justification or excuse, to injure a man in his trade, by inducing his customers or servants to break their contracts with him, or not to deal with him or continue in his employment, is, if it results in damage to him, actionable." The Supreme Court of the United States approvingly cited the English cases of Lumley v. Gye and Bowen v. Hall, and reached the conclusion that, if one maliciously interferes with a contract to the injury of the other, the party injured may maintain an action against the wrongdoer. Angle v. Chicago, St. P. M. & O. R. Co. 151 U. S. 1, 38 L. ed. 55, 14 Sup. Ct. Rep. 240, Though this rule is not universal in all the courts of last resort of our sister states, it is believed to have been followed in most of them. In the carefully prepared opinion in Walker v. Cronin, 107 Mass. 555, the court decided that a manufacturer is entitled to maintain an action against a third person, who, with the unlawful purpose of preventing him from carrying on his business, wilfully induced many of his employees to leave his employment, whereby the manufacturer lost their services, and the profits and advantages which he would have derived therefrom. See also Moran V. Dunphy, 177 Mass. 485, 52 L. R. A. 115, 83 Am. St. Rep. 289, 59 N. E. 125. And the supreme court of North Carolina held in two cases (Haskins v. Royster, 70 N. C. 601, 16 Am. Rep. 780; Jones v. Stanly, 76 N. C. 355) that, if a person maliciously entices laborers or croppers to break their contract with their employer and desert his service, the employer may recover damages against such person. In this state it has been held that when one man employs a laborer to work on his farm, and another man, knowing of such contract of employment, entices, hires, or persuades the laborer to leave the service of the first employer during the time for which he was so employed, the law gives to the party injured a right of action to recover damages. Salter v. Howard, 43 Ga. 601. From the reasoning of McCay, J., in Barron v. Collins, 49 Ga. 580, it would appear that he was inclined to the opinion that an action for the malicious breach of contract was limited to cases of servants. The declaration in that case alleged that A, having contracted with one Charles Barron that he, the said Charles, should furnish himself and his two daughters and one George Barron to work as laborers on the plaintiff's land for the year 1872, the plaintiff to furnish the land and mules, and the said Charles to receive one third and plaintiff two thirds of the crop, and that the defendant, knowing the said contract had not been abandoned, but still existed, employed the said Charles, his two daughters, and the said George to work for him for the year 1872. It was held on demurrer that no good cause of action was set forth. In the opinion it was said that the gist of the action was enticing away plaintiff's servants; and that the contract between the plaintiff and Charles Barron did not create the relation of master and servant, but that Charles Barron was a contractor, and not a servant. However, within the limits of a very brief opinion, it was pointed out that the declaration was defective in many other particulars. It was defective in not setting forth the nature of the damages. It was said, also, that perhaps the contract, resting in parol, was not binding, as it was not to be performed within a year. Nor did it appear that Charles Barron was authorized to contract for the service of the others. Inasmuch as the petition was defective in other vital particulars, the judgment of the court was not confined to the question of the malicious procurement of the breach of the contract. Attention is also called to the fact that this case was decided in 1873. when the principle under discussion was in its evolutional stage. Speaking for myself, I believe the same reasons which support the principle that an action will lie for the malicious procurement of a breach of contract of personal service will cover every case where one person maliciously persuades and induces another to break any legal contract. In the case at bar the relation of master and servant did exist between the plaintiff and his employees, and, even applying the common-law rule of liability, the defendants would be answerable in damages to the plaintiff for a malicious procurement of the breach of contract by its employees. The term "malicious," used in this connection, is to be given a liberal meaning. The act is malicious when the thing done is with the knowledge of the plaintiff's rights, and with the intent to interfere therewith. It is a wanton interference with another's contractual rights. Ineffective persuasion to induce another to violate his contract would not, of itself, be actionable, but, if the persuasion be used for the purpose of injuring the plaintiff, or benefiting the defendant at the expense of the plaintiff, with a knowledge of the subsistence of the contract, it becomes a malicious act, and, if injury ensues from it, a cause of action accrues to the injured party. Bowen v. Hall, L. R. 6 Q. B. Div. 333. As was said by Crompton, J., in Lumley v. Gye, 2 El. & Bl. 216: "It must now be considered clear law that a person who wrongfully and maliciously, or, which is the same thing, with notice, interrupts the relation subsisting between master and servant, by procuring the servant to depart from the master's service, is responsible at law." See Doremus v. Hennessy, 176 Ill. 608, 43 L. R. A. 797, 802, 68 Am. St. Rep. 203, 52 N. E. 924, 54 N. E. 524. 4. From the proof submitted it appeared that means other than persuasion were employed by the defendants to induce the plaintiff's employees to quit work. They Err.. EXCHANGE BANK. (...... Ga. ......) *1. In an action against the maker and indorser of a promissory note, joined in the same suit, the indorser may set off an individual claim against the plaintiff growing out of the transaction which gave rise to the execution of the note. threatened the various labor unions that, May C. WILSON, Impleaded, etc., Plff. in unless the union labor of the plaintiff was called out, they would no longer exclusively employ union men, but would run what is known as an "open shop." This threat was being carried into execution when the plaintiff applied for the writ of injunction. The plan of attack on the plaintiff was to force the various labor unions to call out their members from the plaintiff's shop, under the threat that upon their refusal to do so the defendants would run their respective businesses under what is known as an open shop; that is, they would employ their labor without reference to their connection with the various unions. The several defendants had the undoubted right to employ any character of labor they might prefer. If they desired to supplant the union labor and substitute therefor nonunion labor, such action would be strictly within their legal right. But the record shows that practically all the skilled labor in this branch of business in the city of Atlanta belonged to the various labor unions, which had an agreement with the defendants that the defendants would hire only union employees, and that the unions would not permit their members to work for any employer who was not a party to the agreement. This agreement was incidental to the main purpose of the organization. It was a part of the plan to force all employing printers to become members of the Employing Printers' Club. The defendants were insisting on the observance of this agreement by the labor unions, and, upon their refusal to live up to the agreement, they were threatened with the bête noire of unionism, the open shop. An injunction may be granted against the enforcement of an illegal agreement of dealers to injure the business of another person. Jackson v. Stan field, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 345, 37 N. E. 14. A court of equity will interpose by injunction to prevent the several members of an illegal combination from enforcing an agreement to the hurt and injury of one engaged in a competitive business. Brown v. Jacobs' Pharmacy Co. 115 Ga. 429, 57 L. R. A. 547, 90 Am. St. Rep. 126, 41 S. E. 553. Under the facts in the record, the court properly enjoined the defendants from interfering with the plaintiff's business as a printer engaged in competitive trade, and from unlawfully influencing the labor organization from obstructing its business. Judgment affirmed. All the Justices concur. 2. After a valid plea of set-off has been filed, the plaintiff is not entitled to dismiss his action so as to interfere with the rights of the defendant, except upon sufficient cause shown. (March 25, 1905.) E review orders striking out defendant's RROR to the City Court of Atlanta to plea of set-off, and dismissing, without her consent, an action brought to enforce payment of certain promissory notes. Re versed. The facts are stated in the opinion. Mr. Frank A. Arnold for plaintiff in error. Messrs. Rosser & Brandon for defendant in error. Candler, J., delivered the opinion of the court: a number of The Exchange Bank brought suit against Frank Williams, as maker, and May C. Wilson, on as indorser, promissory notes. The petition alleged that the notes were made by Williams to the J. which name May C. Wilson C. Wilson Coal & Lumber Company, under was at the time doing business, and were indorsed by May C. Wilson. The defendants filed a plea notes were executed May C. Wilson was in which they denied that at the time the doing business under the name of the J. C. Wilson Coal & Lumber Company, and averred that that company was a corporation under the laws of Georgia, They also denied indebtedness on the notes, and averred that "plaintiff has received from defendant, May C. Wilson, $874 on account of the transaction sued upon, and said plaintiff is indebted to defendant, May C. Wilson, the difference, $474, which she pleads in recoupment, and asks judgment against plaintiff for said sum." Subsequently Mrs. Wilson offered an amendment to her plea, *Headnotes by CANDLER, J. NOTE. AS to the right of a surety jointly bound with his principal to offset against such joint indebtedness his individual claim against the creditor, see, in this series, Clark v. Sullivan, 13 L. R. A. 233, and note. which the court, on objections of counsel this very fact of indivisibility lies the sefor the plaintiff, disallowed. The court also, on oral motion, struck the plea of set-off, and later passed another order, "without the knowledge or consent of defendant, May C. Wilson," permitting the plaintiff to dismiss the case at its cost. Mrs. Wilson excepts to the refusal of her amendment, the order striking her plea, and the order allow ing the plaintiff to dismiss. curity to the obligee of accepting a joint obligation. That, however, is not this case. The maker and the indorser of a negotiable promissory note are severally, not jointly, bound by the instrument. Their contracts are essentially different. That of the maker is to pay the note when due, according to the terms of the writing. That of the indorser is that he will pay only on certain 1. As no reference is made in the brief well-defined conditions precedent. Owing of counsel for the plaintiff in error to the to the several nature of the contract, a suit refusal of the amendment offered by Mrs. against the maker and indorser in one Wilson, the assignment of error on this rul- action was not known to the law merchant; ing will be treated as having been aban- and it was necessary to obtain a judgment doned, and we will pass to the controlling against the maker before the liability of question in the case, viz., whether, in a suit the indorser was established. The suit on a promissory note, where both maker and against maker and indorser in one action is indorser are joined in the suit, the indorser entirely of statutory origin (14 Enc. Pl. & may set off an individual demand against Pr. p. 452, and authorities cited in note), the plaintiff's cause of action. This ques- and the Georgia statute on the subject was tion is not without considerable difficulty. not enacted until 1826. Beckwith v. CarleIn the case of Threlkeld v. Dobbins, 45 Ga. ton, 14 Ga. 693. And see generally on this 144, it was held broadly that "a debt due by subject, Vinson v. Platt, 21 Ga. 135; Lathe plaintiff to one of several defendants in mar v. Cottle, 27 Ga. 265; Davis v. Bank of a suit cannot be pleaded by the defendants Fulton, 31 Ga. 69; Ware v. City Bank, 59 as a set-off, unless there be some special Ga. 844. The defense of set-off was also cause shown." That case, however, was de- unknown to the common law, because "the cided by only two judges, and hence is not primitive notion of an action did not binding upon us as authority; but, aside admit the possibility of a defendant being from that consideration, an examination of an actor and interposing a claira against the facts upon which it was based will show the plaintiff to be tried in the one suit.” that the headnote, from which the foregoing Pomeroy, Code Remedies, 3d ed. § 729; quotation was taken, is much broader than Waterman, Set-off, 2d ed. § 10. By the the actual question decided. It appeared statute of 2 Geo. II., chap. 27, § 13, it was that Threlkeld and another had executed to enacted that, "where there are mutual debts Dobbins their joint promissory note; that between the plaintiff and defendant, Dobbins owed Threlkeld a sum of money for one debt may be set off against the other," cotton which he had sold for him, and for etc. The different states of this country which he had not accounted; and that Dob- have all passed statutes the practical efbins had agreed that this sum should be en- fect of which is the same as that of the Engtered as a credit on the joint note. It was lish statute, though varying somewhat in held that this agreement was "such special phraseology. In Georgia it is provided that claim" as could be set off against the plain- "between the parties themselves any mutual tiff's demand on the note. The cases cited demands existing at the time of the comby counsel for the defendant in error as mencement of the suit may be set off;" and being in harmony with the decision in that "set-off must be between the same Threlkeld v. Dobbins are also cases where a parties, and in their own right." Civil joint demand was the subject of the suit, Code 1895, §§ 3746, 3747. The exact meanand one of the defendants sought to set offing to be given to the expressions “mutual an individual claim. With one exception, demands" and "same parties," as used in they were suits against partnerships, the the statute, is the important question now exception being a suit against joint makers to be decided. It seems to us nothing more of a promissory note. It seems to be well than reasonable to hold that in a case like settled in Georgia, as in most of the states, the present, where two or more defendants that in a suit against two or more persons are joined in an action to which they are on a joint obligation set-off is not available severally liable, and in which a separate to less than the entire number of defend- judgment may be taken against them, a cross-demand in favor of any one of the defendants against the plaintiff would come within a fair construction of the requirement of mutuality; nor can we see the necessity, in such a case, of construing the words "same parties" to mean "all the ants. The reason of this rule is plain. A joint obligation is indivisible. Each one of the obligors is bound to the same extent and in the same manner as all the others. A separate judgment against less than the entire number would be impossible; and in parties." We are aware that this view is in conflict with the English rule on the subject, and with the decisions of many of the courts of last resort of this country; but it is also in harmony with many American authorities of eminent respectability. rules: flatly that the defense of set-off is not available to less than the entire number of defendants. See Lemon v. Stevenson, 36 Ill. 49; Ryan v. Barger, 16 Ill. 28; Woods v. Harris, 5 Blackf. 585; Gordon v. Swift, 46 Ind. 208; Warren v. Wells, 1 Met. 80; In Pomeroy's Code Remedies, 3d ed. § Brooks v. Stackpole, 168 Mass. 537, 47 N. 755, the author says: "The provision found E. 419; Jones v. Gilreath, 28 N. C. (6 Ired. in nearly all the Codes that the counter- L.) 338; Corbett v. Hughes, 75 Iowa, 282, claim must exist in favor of a defendant 39 N. W. 500; Banks v. Pike, 15 Me. 268. and against a plaintiff between whom a In Trammell v. Harrell, 4 Ark. 602, the several judgment might be had in the supreme court of Arkansas, by a divided action,' implies that whenever the single de- bench, held: "A defendant, or defendants, fendant, or all the defendants jointly, may cannot set off a claim due to him or them recover against one or some of the plaintiffs, by only one or a part of several plaintiffs; and not against all, or whenever one, or nor can one defendant of several set off a some, of the defendants, and not all, may claim due to him alone from the plaintiff or recover against the single plaintiff, or all plaintiffs; and whether the claim sued on, the plaintiffs jointly, or whenever both of or that attempted to be set off, or both, are these possibilities are combined, a counter- joint, or joint and several, makes no differclaim may be interposed against the one or ence." Chief Justice Ringo, in a strong opinsome of the plaintiffs, and not against all, ion, dissented from the judgment rendered; and by the one or some of the defendants, and so pertinent are the views expressed by and not by all. Such a severance in the rehim in the dissenting opinion to the point covery is possible when the right sought to now under discussion that we quote therefrom be maintained on the one side and the liaas follows: "It is well understood that no setbility to be enforced on the other are not off was allowed by the common law; and originally joint." After a full discussion of that the whole right of set-off in actions at numerous cases bearing on the subject, the law had its origin in certain statutes of author, in § 761, lays down the following England, the first of which gave it only in "First, when the defendants in an respect to a single class of demands; but action are joint contractors, and are sued it has been considerably enlarged and exas such, no counterclaim can be made avail-tended by subsequent acts of Parliament so able which consists of a demand in favor of one, or some, of them. Secondly, when the defendants in an action are jointly and severally liable, although sued jointly, a counterclaim, consisting of a demand in favor of one, or some, of them, may, if otherwise without objection, be interposed. Thirdly, since it is possible, pursuant to express provisions of all the Codes, for persons severally liable to be sued jointly under certain circumstances in a legal action,—that is, in an action brought to recover a common money judgment, a counterclaim in favor of one or more of such defendants may be pleaded and proved." In Roberts v. Donovan, 70 Cal. 108, 9 Pac. 180, 11 Pac. 599, it was held that one of two joint obligors could not . . The first section of our statute of set off an individual claim against the set-off (Ark. Rev. Stat. chap. 139, p. 726), plaintiff's demand on the action; but in the declares that, if two or more persons are opinion (p. 114 of 70 Cal., p. 182 of 9 Pac.) mutually indebted to each other, by judg the following language was used: "The ments, bonds, bills, notes, bargains, action is brought upon the joint bond of all promises, or the like, and one of them comthe defendants. Were it a joint and several mence an action against the other, one debt bond, no difficulty could arise; for where may be set off against the other, although the cause of action is several, as well as such debts may be of a different nature. joint, a several judgment may be entered. . . The language here quoted, it will without reference to the mere form of be perceived, does not in any way make the action." In some of the states it is held right of set-off to depend upon the number as to embrace generally all liquidated damages or demands upon which an action of debt or indebitatus assumpsit would lie, but only where the demand to be set off is due in the same right from all of the plaintiffs to all of the defendants. And this I understand to be one of the most prominent and distinct features in all of the acts of Parliament upon the subject, and it is one which appears to have been introduced into the statutes of set-off of a majority of the states of the United States; and in such states there can be no doubt that a demand not due from all of the plaintiffs to all of the defendants cannot be admitted as set-off, because it is not within the provisions of law allowing such defense to be made. |