the master either on the contract of hiring (ex locato) (d), or at his option an action under the lex Aquilia, since the excess in an act of correction which within reasonable bounds would have been lawful amounts to culpa (e). It is like the English cases we have cited where there was held to be a clear cause of action independent of contract, so that it was not necessary for the plaintiff to make out a breach of contract as between the defendant and himself.

III.- Causes of Action in Tort dependent on a Contract not between the same Parties.

can

Causes of action dependent on collateral contract. What did Lumley v. Gye decide? (a) When a binding promise is made, an obligation is created which remains in force until extinguished by the performance or discharge of the contract. Does the duty thus owed to the promisee constitute the object of a kind of real right which a stranger to the contract can infringe, and thereby render himself answerable ex delicto? In other words, does a man's title to the performance of a promise contain an element analogous to ownership or possession? The general principles of the law (notwithstanding forms of speech once in use, and warranted by considerable authority) (f) seem to call for a negative answer. It would confuse every accustomed boundary between real and personal rights, dominion and obligation, to hold that one who without any ill-will to Peter prevents Andrew from performing his contract with Peter may be a kind of trespasser against Peter (g). For Peter has his

(d) D. 19, 2. locati conducti,13, § 4.

(e) D. 9, 2. 5, § 3; Grueber on the Lex Aquilia, p. 14: the translation there given is not altogether correct, but the inaccuracies do not affect the law of the passage. And see D. h. t. 27, §§ 11, 33, Grucber, p. 230.

(f) Blackstone, il. 442, speaks of a

contract to pay a sum of money as transferring a property in that sum; but he forthwith adds that this property is "not in possession but in action merely," i. e. it is not property in a strict sense: there is a res but not a dominus, Vermögen but not Eigenthum.

(g) We have no right to say that a

remedy against Andrew, and never looked to having any other; and Andrew's motives for breaking his contract are not material. Yet there is some show of authority for affirming the proposition thus condemned. It was decided by the Court of Queen's Bench in Lumley v. Gye (1853) (h), and by the Court of Appeal in Bowen v. Hall (1881) (i), that an action lies, under certain conditions, for procuring a third person to break his contract with the plaintiff. We must, therefore, examine what the conditions of these cases were, and how far the rule laid down by them really extends.

Special damage and malice are of the gist of the action. First, it is admitted that actual damage must be alleged and proved (j). This at once shows that the right violated is not an absolute and independent one like a right of property, for the possibility of a judgment for nominal damages is in our law the touchstone of such rights. Where specific damage is necessary to support an action, the right which has been infringed cannot be a right of property, though in some cases it may be incident to property.

Next, the defendant's act must be malicious, in the sense of being aimed at obtaining some advantage for himself at the plaintiff's expense, or at any rate at causing loss or damage to the plaintiff. In the decided cases the defendant's object was to withdraw from a rival in business, and procure for himself, the services of a peculiarly skilled person in the earlier case an operatic singer, in the later a craftsman to whom, in common with only a few others, a

system of law is not conceivable where such a doctrine would be natural or even necessary. But that system, if it did exist, would be not at all like the Roman law and not much like the common law.

(h) 2 E. & B. 216, 22 L. J. Q. B. 463; by Crompton, Erie, and Wightman JJ.: diss. Coleridge J.

(i) 6 Q. B. Div. 333, 50 L. J. Q. B. 305; by Lord Selborne L. C. and Brett L. J.; diss. Lord Coleridge C. J.

(j) See the declaration in Lumley v. Gye. In Bowen v. Hall it does not appear how the claim for damages was framed, but in the opinion of the majority of the Court there was evidence of special damage; see 6 Q. B. D. 337.

particular process of manufacture was known. Various cases may be put of a man advising a friend, in all honesty and without ill-will to the other contracting party, to abide the risks of breaking an onerous or mischievous contract rather than those of performing it (k). And it would be unreasonable in such cases to treat the giving of such advice, if it be acted on, as a wrong. Lucilia has imprudently accepted an offer of marriage from Titius, her inferior in birth, station, and breeding: Lucilia's brother Marcus, knowing Titius to be a man of bad character, persuades Lucilia to break off the match: shall any law founded in reason say that Marcus is liable to an action at the suit of Titius? Assuredly not: and there is no decision that authorizes any such proposition even by way of plausible extension. There must be a wrongful intent to do harm to the plaintiff before the right of action for procuring a breach of contract can be established. Mere knowledge that there is a subsisting contract will not do. The breach of contract is in truth material only because it excludes the defence that the act complained of, though harmful and intended to do harm, was done in the exercise of a common right.

Question of remoteness of damage. In this view the real point of difficulty is reduced to this, that the damage may be deemed too remote to found the action upon. For if A. persuades B. to break his contract with Z. the proximate cause of Z.'s damage, in one sense, is not the conduct of A. but the voluntary act or default of B. We do not think it can be denied that there was a period in the history of the law when this objection would have been held conclusive. Certainly Lord Ellenborough laid it down as a general rule of law that a man is answerable only for "legal and natural consequence," not for " an illegal con

(k) See the dissenting judgment of Sir John Coleridge in Lumley v. Gye.

sequence," that is, a wrongful act of a third person (7). But this opinion is now disapproved (m).

The tendency of our later authorities is to measure responsibility for the consequences of an act by that which appeared or should have appeared to the actor as natural and probable, and not to lay down fixed rules which may run counter to the obvious facts. Here the consequence is not only natural and probable if A.'s action has any consequence at all but is designed by A.: it would, therefore, be contrary to the facts to hold that the interposition of B.'s voluntary agency necessarily breaks the chain of proximate cause and probable consequence. A proximate cause need not be an immediate cause.

Liability for negligence, as we have seen (n), is not always or even generally excluded by what is called "contributory negligence of a third person." In any case it would be strange if it lay in a man's mouth to say that the consequence which he deliberately planned and procured is too remote for the law to treat as a consequence. The iniquity of such a defence is obvious in the grosser examples of the criminal law. Commanding, prcouring, or inciting to a murder cannot have any "legal consequence," the act of compliance or obedience being a crime; but no one has suggested on this ground any doubt that the procurement is also a crime.

It may likewise

Motive as an ingredient in the wrong. be said that the general habit of the law is not to regard motive as distinguished from intent, and that the decision in Lumley v. Gye, as here understood and limited, is therefore anomalous at best. Now the general habit is as stated, but there are well established exceptions to it, of which the action for malicious prosecution is the most conspicuous:

(1) Vicars v. Wilcocks (1807), 8 East, 1, and in 2 Sm. L. C.

(m) See Lynch v. Knight (1861), 9 H. L.

C. 577, and notes to Vicars v. Wilcocks in
Sm. L. C.

(n) Pp. 577-582, above.

there it is clear law that indirect and improper motive must be added to the other conditions to complete the cause of action. The malicious procuring of a breach of contract, or of certain kinds of contracts, forms one more exception. It may be that the special damage which is the ground of the action must be such as cannot be redressed in an action for the breach of contract itself; in other words, that the contract must be for personal services, or otherwise of such a kind that an action against the contracting party would not afford an adequate remedy. But then the remedy against the wrong-doer will not be adequate either; so that there does not appear to be much rational ground for this limitation. The obvious historical connexion with the action for enticing away a servant will not help to fix the modern principle. Coleridge J. rightly saw that there was no choice between facing the broader issues now indicated and refusing altogether to allow that any cause of action appeared.

American doctrine. In America the decision in Lumley v. Gye has been followed in Massachusetts (o) and elsewhere, and is generally accepted, with some such limitation as here maintained. The rule "does not apply to a case of interference by way of friendly advice, honestly given; nor is it in denial of the right of free expression of opinion" (p).

(0) Walker v. Cronin (1871), 107 Mass. 555, a case very like Bowen v. Hall.

(p) 107 Mass. 566. I owe the following additional references to State reports

American doctrine. Vide Upton v. Vail, 6 Johns. 181; Gallagher v. Brunel, 6 Cow. 346; Carew v. Rutherford, 106 Mass. 1. Advice rashly or indiscreetly given, but without any fraudulent intention, is not sufficient to support the action. Young v. Covell, 8 Johns. 23; Addington v. Allen, 11 Wend. 374. But the intention need not be to defraud the plaintiff in particular. Williams v. Wood, 14 Wend. 126; Stafford v. Newsom, 9 Ired. 507. Fraud will be presumed from the falsity. Clapton v. Cozart, 13 Smed. & M. 363. See American notes under MORAL OR SOCIAL DUTY, ante, p. 335.