and injury to constitute a tort, and malice is not of itself a legal wrong. If one is only exercising his lawful rights, others can have no concern with his motives. A man may establish a business with the malicious purpose to destroy the business of his neighbor. This is no tort, whether he accomplishes his purpose or not, for he had a clear legal right to establish a new business, and his motives in doing so are not to be enquired into.39

This

"An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent."40 remark was made in a case where a landlord was charged with having maliciously distrained for more rent than was due to him, but it was only the statement of a principle that is as old as the common law. It has been applied in a case in which a prosecution was alleged to have been instituted maliciously, but where there was not an absence of probable cause, and to cases of alleged malicious arrest of persons, privileged from arrest by being in attendance on court on subpoena, or by other causes, and of maliciously issuing execution on a judgment which had been entered up for too large an amount, but which had not been corrected at the time suit was brought.43

42

In Mahan v. Brown the plaintiff declared against the defendant for wantonly and maliciously erecting on his own premises a high fence near to and in front of the plaintiff's

See Floyd

Tayler v.

39 Auburn & Cato Plank R. Co. v. Douglass, 9 N. Y. 450. 4o Parke, B., in Stevenson v. Newnham, 13 C. B. 285, 297. v. Barbee, 12 Coke, 23; Stowball v. Ansell, Comb. 11; Hunniker, 12 Ad. & El. 488; Heald v. Carey, 11 C. B. 993; Clinton v. Myers, 46 N. Y. 511; Covanhoven v.Hart, 21 Penn. St., 501; Jenkins v. Fowler, 24 Penn. St. 308; Fowler v. Jenkins, 28 Penn. St. 176; Glendon Iron Co. v. Uhler, 75 Penn. St. 467; Smith v. Johnson, 76 Penn. St. 191. 41 Anonymous, 6 Mod. 73; Williams v. Tayler, 6 Bingham, 183; Forshay v. Furguson, 2 Denio, 617, 620; Ammerman v. Crosby, 26 Ind. 451; Barton v. Kavanaugh, 12 La, An. 332.

42 Vandevelde v. Lluellin, 1 Keb. 220; Maguay v. Burt, 5 Q. B. 381. 43 Huffer v. Allen, L. R. 2 Exch, 15. See Gerard v. Lewis, 2 C. P. 305, in which Willes, J., says that the words "wrongfully and unlawfully are mere words of vituperation, and amount to nothing unless they show a cause of action."

windows, without benefit or advantage to himself, and for the sole purpose of annoying the plaintiff, thereby obstructing the air and light from entering her windows, and rendering her house uninhabitable. The court held that the action would not lie. "The defendant has not so used his property as to injure another. No one, legally speaking, is injured or damnified, unless some right is infringed. The refusal or discontinuance of a favor gives no cause of action. The plaintiff in this case has only been refused the use of that which did not belong to her; and whether the motives of the defendant were good or bad, she has no legal cause of complaint."44

In the South Royalton Bank v. The Suffolk Bank the same principle was involved. The defendants were charged with having maliciously and with intent to injure the plaintiff gathered up its circulating bills, and taken them out of circulation, and afterwards presented them in quantities for redemption to the injury of the plaintiff. On demurrer the court say: "Motive alone is not enough to render the defendants liable for doing those acts which they had a right to do. It is too well settled to need authority that malice alone will not sustain an action for a vexatious suit. There must also be want of probable cause. This principle is enough to settle this case. If the defendants could not be sued for instituting suits maliciously to collect pay upon the plaintiff's bills, which they lawfully held, much less could they be sued for simply calling upon the defendants for pay, without the intervention of a suit, though done with malice. It may be true that sometimes the consequences attending an act may serve to give character to that act, and the rule has become established and grown into a maxim, that a man must use his own rights with due regard to the rights of others; but this principle does not apply to the present case. Here the act of presenting the plaintiff's bill for payment has no natural connection with any injurious consequences to follow from it, and if such consequences follow, they

44 Mahan v. Brown, 13 Wend. 261, 265, per Savage, Ch. J. See Panton v. Holland, 17 Johns. 92.

must be fortuitous, and cannot give character to the act so as to render it unlawful,"45

The same principle was applied in the case of Hunt v. Simonds, in which the plaintiff declared against insurance officers for maliciously conspiring to refuse insurance on his property to his injury. As he had no legal right to demand to be insured by them, it was clear that they had a lawful right to refuse; and whether they did this from good motives or from bad motives was of no legal importance.46

The case of public officers who have discretionary or judicial duties to perform is familiar. "The law will not allow malice and corruption to be charged in a civil suit against such an officer for what he does in the performance of a judicial duty."47 "If a jury will find a special verdict; if a judge will take time to consider; if a bishop will delay a patron and impannel a jury to enquire of the right of patronage; you cannot bring an action for these delays, though you suppose it to be done maliciously and on purpose to put you to charges; though you suppose it be done scienter knowing the law to be clear; for they take but the liberty the law has provided, and there can be no demonstration that they have not real doubts, for these are within their own breasts; and it would be very mischievous that a man might not have leave to doubt without so great a peril."48 As was remarked in a case in which a surveyor of highways was charged with maliciously working the highway in a manner detrimental to the plaintiff: "The true enquiry was,

45 Bennett, J. in South Royalton Bank v. Suffolk Bank, 27 Vt. 505, 508. 46 Hunt v. Simonds, 19 Mo. 583.

47 Beardsley, J., in Weaver v. Devendorf, 3 Denio, 120. See Floyd v. Bender, 12 Coke, 23; Evans v. Foster, 1 N. H. 377; Yates v. Lansing, 5 Johns. 282; s. c. in Error, 9 Johns. 394; Laning v. Bentham, 2 Bay, 1; Brodie v. Rutledge, Ibid. 69; Pratt v. Gardner, 2 Cush. 68; Garnett v. Ferrand, 6 B. & C. 611; Dicas v. Lord Brougham, 6 C. & P. 249; Fray v. Blackburn, 3 B. & S. 576; Dawkins v. Lord Rokeby, 5 Q. B. 108; s. c. in Error, 4 Fost. & Fin. 806.

48 North, Ch. J., in Barnardiston v. Soame, 6 How. State Trials, 1099. See Scott v. Stansfield, L. R. 3 Exch. 220. The subject was largely considered in Bradley v. Fisher, 13 Wall. 335.

whether the defendant had legal authority to do what he did in the highway. If he had such authority, and acted within the scope of it, he is not a trespasser because his motives or purposes with respect to the plaintiff were unkind or malicious."49

Within this principle, also falls the case of one in authority, who, under a discretionary power pertaining to his office, puts a subordinate on trial for alleged violation of the laws. The exercise of such a discretion cannot be a tort, even though bad motive or want of probable cause be charged.50 Neither can the malice of a witness in giving injurious testimony, nor the malice of a party in making injurious allegations in affidavits which he files in the course of judicial proceedings render him liable to an action at the suit of the party aggrieved. These cases are referred to as illustrations merely; there are many others in which the same principle is applied.

It has been made a question whether the principle is applicable in cases where one is dealing with surface water, or water percolating through the soil of his premises, to the injury of his neighbor. In Chatfield v. Wilson it was applied without hesitation. The case was one of gathering water on the defendant's premises which otherwise would have percolated through the soil of the plaintiff, supplying a reservoir and aqueduct which had been constructed by him, and malice was charged. "There are," it is said by the court, "many cases in the books relating to the relative use of surface streams, where the case has turned upon the question whether the use was reasonable, and for the party's own convenience or benefit, or wanton and malicious, and done to prejudice the rights of another. In such cases there are cor

49 Thomas, J. in Benjamin v. Wheeler, 8 Gray, 409; see Sage v. Laurain, 19 Mich. 137; Thornton v. Thornton, 64 N. C. 211.

50 Johnston v. Sutton, 1 T. R. 549; Freer v. Marshall, 4 Fost. & Fin. 485; Dawkins v. Lord Pawlett, L. R. 5 Q. B. 94; Dawkins v. Lord Rokeby, L. R. 8 Q. B. 285, and 4 Fost. & Fin. 806.

51 Damport v. Simpson, Cro Eliz. 520; Revis v. Smith, 18 C. B. 125; Henderson v. Broomhead, 4 H. & N. 569; Cunningham v. Brown, 18 Vt. 123; Dunlap v. Glidden, 31 Me. 435; White v. Carroll, 42 N. Y. 166.

relative rights to the use of the water, and the boundary of the right is a reasonable use of it. But such cases have no analogy to the case at bar, and it may be laid down as a position not to be controverted, that an act legal in itself, violating no right, cannot be made actionable on the ground of the motive which induced it. Such was the case of South Royalton Bank v. Suffolk Bank, 27 Vt. 505. If the act is lawful, although it may be prejudicial, it is damnum absque injuria. On this point the case of Mahan v. Brown, 13 Wend. 261, is a direct authority."52 This view appears also to have been accepted in Ohio, "subject only to the possible exception of a case of unmixed malice."53 The intimations the other way have, however, been very strong. Lord Cranworth, in Chasemore v. Richards, expressed very great doubt whether a party would be at liberty to abstract water on his own premises for the use, unconnected with his own estate, of those who would have had no right to take it directly themselves, to the injury of neighboring proprietors who would have had an equal right with him.54 In Massachusetts the instructions of the trial court, that if the defendant dug the well which drew water away from the plaintiff, for the purpose of injuring the plaintiff, and not for the purpose of obtaining water for his own use, he was liable for so doing, were very distinctly approved by the court in banc.55 And the Supreme Court of Pennsylvania appears to have recognized the same doctrine in several cases.56

There seems to be some difficulty in laying down a rule for these cases that will be quite satisfactory in principle and in its workings. That a man may lawfully make an excavation on his premises for the sole purpose of drawing away the water from his neighbor's well and rendering it useless,

5 Chatfield v. Wilson, 28 Vt. 49, 57.

53 Frazier v. Brown, 12 Ohio St., 294, 304.

54 Chasemore v. Richards, 7 H. L. Cas. 349, 388.

55 Greenleaf v. Francis, 18 Pick. 117, 122.

56 Wheatley v. Baugh. 25 Penn. St. 528; Whetstone v. Bowser, 29 Penn. St. 59; Haldeman v. Bruckhardt, 45 Penn. St. 514. See, also, Trustees of Delphi etc. v. Youmans, 50 Barb. 516; Waffle v. Porter, 61 Barb. 130.