custom, and custom must have a good foundation, therefore the thing is not absolutely and in itself unlawful. "Fourth. That it is lawful upon a good consideration for a man to part with his trade. "Fifth. That since actions upon the case are injuriarum, it has always been held that such actions will lie for a man's using a trade contrary to custom, or his own agreement, for there he uses it injuriously. "Sixth. That where the law allows a restraint of trade, it is not unlawful to enforce it with a penalty. "Seventh. That no man can contract not to use his trade at all. "Eighth. That a particular restraint is not good without just reason and consideration." Where the restraint is the sole purpose of the contract, there is nothing upon which to rest it. It cannot, therefore, be justified. "There should be no difference in the legal considerations which would invalidate an agreement whether in general or in partial restraint of trading. These considerations are whether the restraint is reasonable and is not against public interest." 1 So "if any engross all the salt with an intent to sell it at his own price, and at unreasonable prices, he may be thereof indicted for as an offence at the common law."" Whether the plan to control the market is by uniting all in the trade in one partnership, by dividing the trade among all by one agreement of all, or by including outsiders so as to keep all the trade under one control, the simple tests of reasonableness and public policy will answer. The legislature may express public policy in a statute, but the 1 Lord Morris in Nordenfelt v. Maxim-Nordenfelt Co., 1894, A. C, 'King v. Maynard, Cro. Car. 231. application of the test by the courts will alone produce the common law guide.1 The exercise of the right of contract merges into conspiracy and unlaw ul combination when it is, without justification, an interference with the free exercise of the right of contract by others. The rule does not vary from place to place.2 Boycotting and picketing are the same thing wherever they are practiced. The rights exercised or assailed are safeguarded by the same authority everywhere in the United States. While it would not be denied that the right of contract might be protected by act of Congress, yet it might be denied that the subject could without such statute or other reason for jurisdiction be brought before a Federal court. That is immaterial if the same rule is applied by all courts in the United States. Mr. Justice Bradley, in the Slaughter House Cases, placed the question upon the basis of rights of the individual citizen. "This right to choose one's calling is an essential part of that liberty which it is the object of the government to protect, and a calling, when chosen, is a man's property and right. Liberty and property are not protected where these rights are arbitrarily assailed." 1 Park & Sons v. National Druggists' Assn., 175 N. Y. 1; Mogul S. S. Co. v. McGregor, L. R. (App. Cases 1892), 25; Heaton-Peninsular Button-Fastener Co. v. Eureka Specialty Co., 77 Fed. 288. • Anonymous, 12 Mod. 248; Rex v. Journeymen Tailors, 1 Mod. 10; Regina v. Hewitt, 5 Cox, C. C. 162; Old Dominion S. S. Co. v. McKenna, 30 Fed. 48; Curran v. Galen, 152 N. Y. 33; Scottish Coöperative Society v. Glasgow Association, 35 Scottish Law Rep. 645; Plant v. Woods, 176 Mass. 492; Dry v. Boswell, 1 Campbell, 329; In re Doolittle, 23 Fed. 544; Mogul S. S. Co. v. McGregor, L. R. 23 Q. B. D. 598; West Virginia Transportation Co. v. Standard Oil Co., 40 S. E. Rep. 591; Martell v. White, 185 Mass. 255; Glamorgan Coal Co. v. South Wales Miners' Federation, L. R. 1903, 2 K. B. 545. Crump v. Commonwealth, 84 Va. 927; Temperton v. Russell, L. R. (1893) 1 Q. B. 715: Leathern v. Craig, L. R. 1901, A. C. 495; Vegelahn v. Guntner, 167 Mass. 92; Jersey City Printing Co. v. Cassidy, 63 N. J. Eq. 759. 4 16 Wall. 361, p. 116. These matters are within the protection of the Constitution of the United States interpreted in the light of the Declaration of Independence and Magna Charta. $133. THE RIGHT OF ASSOCIATION IS FREE AND ADEQUATE TO JUSTIFIABLE USE OF THAT RIGHT. Though a contract of association for the single object of attacking the rights of others is void, the right of association is one of the most important of the rights protected by the law. The association may amount merely to a joint enterprise,' that of an employé's contract for a percentage of profits, both of which are less than a partnership; it may amount to a partnership without limitation of liability, a limited partnership,* or to a corporation. What is a corporation is determined by the fact of the presence of the attributes of a corporation. The Supreme Court of the United States will not be concluded by the expression of a statute either of England or of one of the States." 3 A partner cannot sue his copartner for work done for the partnership, but upon the termination of the partnership any one of the partners is entitled to have the whole assets, real and personal, disposed of." But See The Law of Criminal Conspiracies and Agreements, being a collection of the English cases, by R. S. Wright and of the American cases by Hampton L. Carson; see also Cases on Restraint of Trade, a collection of English and American cases edited and arranged by Professor Bruce Wyman of the Harvard Law School. 2 Blue v. Leathers, 15 Illinois, 31. 3 Burckle v. Eckart, 1 Denio, 337. Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449. Liverpool, London & Globe Insurance Co. v. Massachusetts, 10 Wall. 566. 7 Great Southern Fireproof Hotel Co. v. Jones, 177 U. S. 449. Holmes v. Higgins, 1 Barnewall & Cresswell, 74. Wild v. Milne, 26 Beavan, 504. 5 shares of a corporation are personalty; property real and personal vests in the corporation; members may sue the corporation for dividends; and the corporation is otherwise distinct from the individual member as such.' The property of the corporation cannot be attached upon a claim against a stockholder individually." Nor may stock be garnished by service upon the corporation in an action against the stockholder; nor can there be equitable set-off between the corporation and its stockholders; but a stockholder may in his individual capacity maintain an action against the corporation; and a sale by all the members jointly to the corporation is a conveyance subject to the Stamp Act on transfers of property." Where associates combine to create a paper corporation to cover a partnership and to free themselves from individual obligations which had attached to them, courts of equity will disregard and look beyond the corporate entity. A stockholder has an insurable interest in the property of the corporation, and may recover upon a policy upon his share in that property taken out by and made payable to him. Taxation of the shares of a corporation, the property of which has already been taxed, is not double taxation. A provision of the charter or stat ' Russell v. Temple, 1 Dane Abs. 108. • Williamson v. Smoot, 7 Martin (Louisiana), 31. Ross v. Ross, 25 Georgia, 297. Gallagher v. Germania Brewing Co., 53 Minn. 214. 5 Waring v. Catawba Co., 2 Bay, South Carolina, 109. Foster & Son Limited v. Commissioners of Inland Revenue, L. R. (1894) 1 Q. B. 516. ' Moore & Handley Hardware Co. v. Towers Hardware Co., 87 Alabama, 206. Warren v. Davenport Fire Insurance Co., 31 Iowa, 464. • Cook v. City of Burlington, 59 Iowa, 291. ute law is not necessary to exempt the stockholders of a corporation from individual liability.' Individual liability, as incident to membership of a corporation, arises only from express legislative enactment, either in the charter, or by some general laws, to which all similar corporations and their individual members are made subject; a by-law cannot have such effect." Nor can the majority, by accepting the terms of a statute to that effect, impose individual liability upon a stockholder without his consent. Such statutes are to be construed strictly, as a wide departure from established rules of law.* The specific thing which creates the corporation is the acting upon the provisions of law whether written or unwritten or what is sometimes called the acceptance of the charter." The legislature has no power to force a man to become a member of a corporation, and for that reason a statute incorporating the owners of the land in a certain block depends upon the will of these owners." The statute or charter must be accepted, if it is desired to rest the corporate existence thereon, in its expressed terms. If a statute so provides, the existence of the corporation will date from the filing of the certificate of incorporation. But it is the acts of the members that make the corporation." "Without orga 1 Carr v. Iglehart, 3 Ohio State, 457. 'Trustees of Free Schools in Andover v. Flint, 13 Metcalf (Mass.), 539. 3 Ireland v. Palestine, etc., Turnpike Co., 19 Ohio State, 369. Shaw, C. J., in Gray v. Coffin, 9 Cushing (Mass.), 199. Franklin Bridge Co. v. Wood, 14 Georgia, 80. Ellis v. Marshall, 2 Massachusetts, 1. State v. Bull, 16 Connecticut, 179. Bank v. Texas Investment Co., 74 Texas, 421. Aspen Water and Light Co. v. City of Aspen, 5 Colorado Appeals, 12. |