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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 destructive of social order if every man were subject to be called to account for the motives with which his legal rights were excised.
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 m 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 motive 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 evi dence 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 upon everywhere.1
'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 his 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.
injuries from, not actionable, 91-93, 751, 799, 808.
in cases of infants, 822, 823.
when obtained by fraud, 591.
cannot sell principal's property to themselves, 614.
of corporation, torts by, 136-142, 577-580, 601–612.
wrongs to, 8-9.
common law obligation of owner to restrain, 397.
of animals not usually domesticated, 400.
vicious, injuries by, 402-410.
notice to owner of propensity, 402, 405.
injuries by several uniting, 409.
wild, injuries by, 410-412.
implied warranty, in sale of food for, 562, 563.
warranty in sales of, 563, 584.
nuisance of diseased, 724.
ANNOYANCE WITHOUT FAULT,
not a nuisance, 671.
of responsibility between joint wrong doers, 155–157.
not liable to private suits, 479.
lawful restraint of by master, 198.
of a wrong, does not make one a wrong-doer, 147.
not liable to private suits, 480.
action for causing injury by sale of liquors in, 283.