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he is not privileged to seize the property of another upon legal process for a demand which he has no reasonable ground for asserting, or to defame another by a criminal prosecution on a charge which he has no reason to believe was well founded. Good faith in these cases is the limit of the privilege. It would be monstrous if one might with impunity make use of the process of the law for the sole purpose of wreaking his malice upon his fellows; and it would, perhaps, be equally de structive of social order if every man were subject to be called to account for the motives with which his legal rights were ex. cised.

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Bad motive increases necessity for Caution. But it cannot be said that motive is entirely unimportant when one is exercising undoubted legal rights. All rights must be exercised with due regard to the rights of others, and action becomes unlawful when it becomes negligent. It may be that if one shall assert his rights with no other object than annoyance, he should be put to the observance of a higher degree of care that if what he was a doing had in view a beneficial purpose. Suppose, for instance, he were to make an excavation in his grounds for the mere purpose of annoying his neighbor and compelling him to be at the expense of supports for his building, would not his inotive demand of him the observance of more than ordinary care to avoid injury? Suppose he were to build a fire on his own premises for the sole purpose of incommoding a neighbor with the smoke and dust, and the fire should spread to the neighbor's premises, would not the motive itself strengthen greatly any other evidence that might exist of the want of proper care to prevent the fire spreading? The point is not without interest, and it would seem that there must certainly be some difference between the man who proposes to keep within the limits of legal right, and also to cause no annoyance, and the man who proposes to cause what annoyance he may find possible without exceeding those

limits. [*694] *Motive generally becomes important only when the

damages for a wrong are to be estimated. It then comes in as an element of mitigation or aggravation, and is of the highest importance. The unintended blow, though negligent, is excused, when the blow meant for an affront, though no heavier, is

justly punished with heavy damages. The justice of this is universally and spontaneously conceded in private life and acted apon everywhere.

'If the following anecdote shall at first blush seem a little out of place in a law treatise, the aptness and force with which it illustrates the point of the text must excuse its introduction:

In his early years Mr. Macaulay has a curiosity to see how an election is conducted, and goes out for the purpose. As he approaches the place of voting he is struck in the face by the carcass of a dead cat which some one has thrown in bis direction. This certainly is unpleasant; the missile is unsavory and the victim is proportionally enraged. No money just then would have compensated satisfactorily for the outrage. It is an unprecedented affront and insult. But the guilty party soon appears and

apologizes. The missile was not intended for Mr. Macaulay, but for another person against whom it had been thought to be a proper political argument. The injury is almost redressed at once. “Well,” says Mr. Macaulay, “please next time intend the missile for me and hit the other man." Thus a grievous injury becomes merely the occasion for a jocose remark, and the trespass which, if intended, would have been for a considerable period a source of irritation and annoyance, is all removed by an explanation and a slight ablution, and good nature is restored. A tort was of course committed, but the damage was nominal.

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INDE X.

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ABANDONMENT,

by wife of husband, 38, 39.
ABATEMENT,
of nuisance, 48, 52.

See NUISANCE.
ABDUCTION,

of child, 268.

of wife, 262,3
ABUSE,

of license, effect of, 371, 372.
of process, actions for, 220.

See TRESPASS AB INITIO.
ACCESSION,

property by, 58–60.
ACT OF GOD

what to be referred to, 764.
no action for damage by, 799.
innkeepers do not warrant against, 758.

common carriers not responsible for, 764.
ACCIDENT,

injuries from, not actionable, 91-93, 751, 799, 808.
what is an, 91-93.

in cases of infants, 822, 823.
ACTIONS,

rights are protected by, 20–23.
right of every person to institute, 207, 208.

malicious, 207-220.
ADOPTION,

of children, 43, 276.
of wrongs, 147–8.

See RATIFICATION.
ADJUDICATION,

of insanity, necessity for, 205–0.

title changed by, 537.
ADVICE OF COUNSEL,
protection in acting under, 211–213.

(839)

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AFFIRMING CONTRACT,

when obtained by fraud, 591.
AGENTS,

cannot sell principal's property to themse es, 614.
good faith required of, 615, 616.
of corporation, torts by, 136-142, 577-580, 604-612.

are servants, 622-625.
AGGREGATE BODIES,

wrongs to, 8-9.
AGREEMENT,
to indemnify sheriff, when valid, 150.
when void, 169.

See CONTRACT.
AIR,

common law easement of, 832, 833.
AMUSEMENT, PLACES OF,

right of all to visit, 336.
ANIMALS,

common law obligation of owner to restrain, 397.
modification of common law rule in some States, 398.
statutes requiring fences against, 398–400.
running at large under township votes, 399.
trespasses by vicious beasts, 400.

of animals not usually domesticated, 400.
keeper must protect against, 401, 402, 406.

by cattle being driven in highway, 401.
vicious, injuries by, 402-410.

notice to owner of propensity, 402, 405.
statutes dispensing with notice, 408-410.
right to kill, 406, 407.

injuries by several uniting, 409.
wild, injuries by. 410-412.
implied warranty, in sale of food for, 562, 563.
sales of diseased, 503.
warranty in sales of, 563, 584,

puisance of diseased, 724.
ANNOYANCE WITHOUT FAULT,

not a puisance, 671.
APPORTIONMENT,

of responsibility between joint wrong doers, 155-157.
APPRAISERS,

not liable to private suits, 479.
APPRENTICE,

lawful restraint of by master, 198.
APPROVAL,

of a wrong, does not make one a wrong-doer, 147.
ARBITRATORS,

not liable to private suits, 480.
ARKANSAS,

action for causing injury by sale of liquors in, 283.

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