A TREATISE ON THE INCORPORATION AND ORGANIZATion of CorpORATIONS created under the "Business Corporation Acts," of the several states and territories of the United States. By Thomas Gold Frost. Boston: Little, Brown, and Company. 1905. pp. xliv, 622. 8vo.

SELECT STATUTES CASES AND DOCUMENTS TO ILLUSTRATE ENGLISH CONSTITUTIONAL HISTORY, 1660-1832, with a supplement from 18321894. Edited by C. Grant Robertson. New York: G. P. Putnam's Sons. London: Methuen & Co. 1904. pp. xviii, 452. 8vo.

THE PUBLICATIONS OF THE SELDEN SOCIETY. Volume XIX.

For the year 1904. Year Books of Edward II. Vol. II. 2 & 3, Edward II. A. D. 1308-9 and 1309-10. Edited by F. W. Maitland. London: Bernard Quaritch. 1904. pp. xix, 244. 4to.

YEAR BOOK Of Legislation, 1903. Edited by Robert H. Whitten. Digest of Governor's Messages, Summary and Index of Legislation, Review of Legislation, 1903. Albany: New York State Education Department 1904. pp. 771. 8vo.

STREET RAILWAY REPORTS ANNOTATED. Reporting the Electric Railway and Street Railway Decisions of the Federal and State Courts in the United States. Edited by Frank B. Gilbert. Vol. II. Albany, N. Y. Matthew Bender. 1904. pp. xix, 1051. 8vo.

THE HINDU WILLS ACT (Act XXI of 1870), with which is incorporated the Probate and Administration Act, with elaborate notes and commentaries. By Mahendra Chandra Majumdar. Calcutta: Sanyal & Co. 1904. pp. lvi, 824. 8vo.

THE ORGANIZATION AND MANAGEMENT OF Business CORPORATIONS. By Walter C. Clephane. St. Paul, Minn.: West Publishing Co. 1905. pp. xxvi, 246. 8vo.

REPORT OF SEVENTH ANNUAL MEETING of the COLORADO BAR ASSOCIATION. 1904. pp. 198. 8vo.

HARVARD

LAW REVIEW.

VOL. XVIII.

APRIL, 1905.

No. 6

HOW FAR AN ACT MAY BE A TORT BECAUSE OF THE WRONGFUL MOTIVE OF THE ACTOR.

A

S a precedent Allen v. Flood1 has been made harmless by the later decision in Quinn v. Leathem.2 But certain dicta in the prevailing judgments in the earlier case, by reason of the prominence of the judges who gave them, may have a considerable and, as it seems to the present writer, a mischievous influence. He ventures, therefore, to point out what he conceives to be the fallacy of two of the most important of these dicta.

The first is this remark of Lord Watson: 3

4

'Although the rule may be otherwise with regard to crimes, the law of England does not, according to my apprehension, take into account motive as constituting an element of civil wrong." The other is a statement by Lord Macnaghten: "I do not think that there is any foundation in good sense or in authority for the proposition that a person who suffers loss by reason of another doing or not doing some act which that other is entitled to do or to abstain from doing at his own will and pleasure, whatever his real motive may be, has a remedy against a third person who, by persuasion or some other means not in itself unlawful, has brought about the act or omission from which the loss comes, even though it could be proved that such person was actuated by malice

towards the plaintiff, and that his conduct if it could be inquired into was without justification or excuse."

In opposition to these generalizations, the true rule, it is submitted, may be formulated as follows: The wilful causing of damage to another by a positive act, whether by one man alone, or by several acting in concert, and whether by direct action against him or indirectly by inducing a third person to exercise a lawful right, is a tort unless there was just cause for inflicting the damage; and the question whether there was or was not just cause will depend, in many cases, but not in all, upon the motive of the

actor.

The motive to an act being the ultimate purpose of the actor is rightful if that purpose be the benefit of others or of himself, wrongful if the purpose be damage to another. An act may be a tort, notwithstanding the rightful motive of the actor, because the end does not justify the means. Such torts, however, are beyond the scope of the present paper. The soundness of the dicta quoted from Allen v. Flood must be tested by cases in which the actor in wilfully causing damage to another was dominated by a wrongful motive. We shall find that these cases fall into three groups: (1) Cases in which the wrongful motive has no legal significance, the actor, by general judicial opinion, being subject to no liability at law, however severe the judgment against him in the forum of morals; (2) Cases which have divided judicial opinion, some courts deciding that the actor should be charged because of his wrongful motive, others ruling that he should not be charged, notwithstanding his wrongful motive; (3) Cases in which it is generally agreed that the actor should be charged because of his wrongful motive.

First group. A defendant who has caused damage to the plaintiff and been actuated in so doing by the most reprehensible motives escapes liability if the plaintiff is suffering only the consequences of his own breach of duty. For example, the plaintiff refuses to leave the defendant's house, when requested, whereupon the defendant puts him out by force; or the defendant removes the plaintiff's encroaching fence; 2 or his wrongful obstruction to the flow of a stream; 3 or turns the plaintiff's trespassing horse into the highway where it is lost or stolen. It makes no difference that the defendant, in doing these acts, was taking

1

1 Oakes v. Wood, 2 M. & W. 791, 794, per Parke, B; Kiff v. Youmans, 86 N. Y. 324 (semble); Brothers v. Morris, 49 Vt. 460. 2 Smith v. Johnson, 76 Pa. St. 191. Humphrey v. Douglass, 11 Vt. 22.

3 Clinton v. Myers, 46 N. Y. 511.

advantage of the opportunity to gratify a vindictive spirit, and would not have done them otherwise. It is still true that he was merely putting an end to the plaintiff's tort. Similarly, a creditor pursues his debtor with all the rigor of the law in order to ruin him, although he knows that with some indulgence he would realize more himself and enable his debtor to avoid bankruptcy; 1 or in a spirit of malevolence he sues a trespasser.2 Here again the malevolent motive of the defendant is legally of no significance. The debtor and the tort-feasor were legally bound to pay and cannot claim damages because they were brought into court for the breach of their duty. The action is refused in these cases, notwithstanding the reprehensible motive of the defendant, because the court could not without stultifying itself punish him for enforcing his absolute legal rights against his debtor or the wrongdoer.

In other cases the wrongful motive of the actor is ignored for a different reason. An English judge said from the bench to one of the parties: "You are a harpy, preying on the vitals of the poor." It was admitted that the words were false and spoken for the sole purpose of injuring the person addressed. The latter brought an action against the judge, but was unsuccessful. A witness gave perjured testimony for the sake of defeating one of the parties to the suit. There was no redress against him at the suit of the person injured by his perjury. It is believed to be for the public interest that neither judge, juror, party, counsel, nor witness should be called to account in a civil action for words spoken while filling those characters. The same absolute privilege extends to speeches in legislative assemblies."

1 Morris v. Tuthill, 72 N. Y. 573; Friel v. Plummer, 69 N. H. 498; South Bank v. Suffolk Bank, 27 Vt. 505.

2 Jacobson v. Von Boenig, 48 Neb. 80.

8 Baron Parke's oft-quoted dictum (Stevenson v. Newnham, 13 C. B. 285, 297): "An act which does not amount to a legal injury, cannot be actionable because it is done with a bad intent was given in a similar case. The defendant was sued for maliciously distraining for more rent than was due. But the count did not allege that the distress was excessive, that is, was unreasonably large for the rent actually due. If the defendant took by distress no more goods than might properly be taken, his motive in taking them was irrelevant. Hamilton v. Windolf, 36 Md. 301, is a similar

case.

4 Scott v. Stansfeid, L. R. 3 Ex. 220.

5 Damport v. Simpson, Cro. El. 520.

6 The head of an executive department of the government enjoys a similar immunity from a civil action for his official conduct. Spalding v. Vilas, 161 U. S. 483. Nor will an action lie for a malevolent removal of a subordinate official by a superior invested with the power of removal. Rosenbaun v. Gillian, 101 Mo. App. 126.

Anyone may speak or write defamatory words of another, and in the most contemptible spirit of vindictiveness, if he simply tells the truth. This rule works very harshly sometimes, but it is thought to be for the public welfare that men should appear in their true colors.1

An innocent man is subjected to a criminal prosecution by one who acted from the purest malevolence. Nevertheless, if he had reasonable grounds for believing the party prosecuted to be guilty, no action will lie against him for his malevolent conduct.2 Here, again, the interest of the private individual must give way to the public good. It is for the interest of the community that all persons believed on reasonable grounds to be criminals should be prosecuted, whatever the motive of the person instigating the prosecution. In all these cases and others that might be mentioned the defendant escapes liability, not from any regard for him, but by reason of the paramount consideration of the public welfare.

Second group. There is much divergence of judicial opinion as to the liability of the owner of land for using it, not for any benefit to himself, but purely to the detriment of his neighbor. The typical illustrations of such conduct are the sinking of a well by the owner, not in order to get water for himself, but solely for the purpose of draining his neighbor's spring, or the erection by the owner on his land, but near the boundary, of an abnormally high fence, not for any advantage of his own, but merely to darken his neighbor's windows or to obstruct the view. In England it seems to be settled that the owner may act in this malevolent manner with impunity.3 In France and Germany the owner is liable in tort in each case. In this country there is a strange inconsistency in the reported decisions. In thirteen of the fifteen

1 Odgers, Lib. & Sl., 3d ed., 202. See the analogous case of Lancaster v. Hamburger (Ohio, 1904), 71 N. E. Rep. 289. By statute in Delaware, Florida, Illinois, Louisiana, Maine, Massachusetts, Nebraska, New York, Rhode Island, West Virginia, and possibly in a few other States, the truth of a libel is no defense to an action, unless it was published with a proper motive.

2 Foshay v. Ferguson, 2 Den. 617; 1 Ames & Smith, Cas. on Torts 548, 549, я. I. 3 Mayor v. Pickles, [1895] A. C. 587; Capital Bank v. Henty, 7 App. Cas. 741, 766. 4 Draining of spring: Badoit v. Andre, Cour de Lyon, April 18, 1856, Dalloz 56, 2, 199; Barré v. Guilhaumon, Cour de Montpellier, July 16, 1866, Sirey 67, 2, 115 (semble); Forissier v. Chavrot, Cour de Cassation, June 10, 1902, Sirey, 1903, I, II; G v. F., O. A. G. zu Jena, Nov. 29, 1878, 35 Seuff. Arch. No. 273 (semble). Spite fence: Doerr v. Keller, Cour de Colmar, May 2, 1855, Dalloz 56, 2, 9; G. v. F., O. A. G. zu Jena, Nov. 29, 1878, 35 Seuff. Arch. No. 273 (semble); Marcus v. Bose, O. L. G. zu Darmstadt, June 5, 1882, 37 Seuff. Arch. No. 292 (semble).