¹ (1938) 2 Mod. L. Rev. 1.

² The question is first specifically posed in Torts, 2nd ed. 8–9. Professor Goodhart errs in attributing it to Salmond's editor. The lettering in the above quotation is mine.

³ Digest of English Civil Law, 2nd ed. i, 545.

⁴ Book review in (1932) 14 J. Comp. Leg. 3rd Ser. 209.

⁵ Book review in (1931) 8 Bell Yard 25.

⁶ In Salmond's Torts, 9th ed. 19—20; cp. (1932) 10 Bell Yard 24. But he is in proleptic agreement with the other side.

⁷ The Law (1936) 146–7.

⁸ Law of Torts, 1st ed. 21–3, 13th ed. 1—2, 6, 20–3, 450; cp. the same writer in (1906) 22 L. Q. R. 118, (1910) 26 L. Q. R. 421, (1927), 43 L. Q. R. 149, and (1931) 47 L. Q. R. 589.

⁹ (1902) 18 L. Q. R. 4 (confining himself to intentional damage).

¹⁰ (1927) 27 Col. L. Rev. 1; The Province of the Law of Tort (1931), 32–9; Text-Book of the Law of Tort (1937) 15—21.

¹¹ Legal Morality and the Ius Abutendi (1924) 40 L. Q. R. 164, reprinted in Legal Duties (1931) 95.

¹² Book review in (1938) Journ. of the Soc. of Pub. Teach, of Law 38.Google Scholar

¹³ Ames, ‘ Tort because of a Wrongful Motive ’ (1905) 18 Harv. L. Rev. 411 (reprinted in the same author's Lectures (1913) 399, and in Selected Essays on the Law of Torts (1934) 150); (with qualifications) Jeremiah Smith (1907) 20 Harv. L. Rev. at 264; F. P. Walton (1909) 22 Harv. L. Rev. 519; Charles E. Carpenter (1928) 41 Harv. L. Rev. 735; Grover C. Grismore (1935) 33 Mich. L. Rev. 322. All confine themselves to intentional damage, and Ames specifically confines himself to positive acts as distinct from omissions. Holmes in (1894) 8 Harv. L. Rev. 9, ‘ Selected Essays on the Law of Torts ”, 170, seems, to adopt the same view even for damage inflicted carelessly.

¹⁴ For this reason I think that there is an unfortunate ambiguity in the statement of Salmond: ‘ Whether I am prosecuted for an alleged offence, or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability; and not for me to defend myself by proving that it is within some specific and established rule of justification or excuse ” (Torts, 6th ed. 9—10). Now it is true that the burden rests on the plaintiff to establish facts that will, as a matter of law, result in liability. But there is no such thing as ‘ proof ’ that the facts will result in liability; that is a matter for argument, not evidence.

¹⁵ Jones v. Powell (1629) Palmer 536 at 538.

¹⁶ See (1931) 47 L. Q. R. at 589.

¹⁷ There seems to be nothing in Salmond's Torts to qualify the view expressed in his Jurisprudence, 7th ed. 190. It is true that in the sentence quoted above, n. 14, he used the phrase ‘ established rule of liability”, but perhaps this was meant merely to point a contrast with ‘ established rule of justification or excuse ”. It is difficult to conceive that Salmond meant to deny the power of the Courts to extend established torts. In a footnote he added:‘ The only adequate answer to many claims for damages is the mere ipse dixit of the law that no such cause of action is recognized.’ This is true in the sense that there are some interests that the Courts refuse to protect; indeed, it was the very ground upon which Pollock himself explained Day v. Brownrigg (below, n. 44). Still, the statement may be misleading unless we add that the inactivity of the Courts results not from helplessness but from notions of policy; it is not thought expedient to protect such interests.

¹⁸ (1938) 2 Mod. L. Rev. at 8. Cp. Jenks (1933) 14 J. Comp. Leg., 3rd Ser. 210.

¹⁹ Cp. Holmes J. in Stock v. New York N. H. & H. R. Co. (1900) 77 Maes. 155 at 158; 58 N. E. 686 at 687; Winfield in (1935) 51 L. Q. R. 249.

²⁰ This ‘ administrative factor ” has been well stated by Green, ‘ The Duty Problem in Negligence Cases ” (1928) 28 Col. L. Bev. at 1035–45.

²¹ And perhaps not only honesty. As a leading exponent of the realist doctrine, Mr. Jerome Frank, puts it: ‘ To treat free adaptation and law-making as if they were bootlegging operations, renders the product unnecessarily impure and harmful … It is time that we gave up the notion that indirection and evasion are necessary to legal technique ” (Law and the Modern Mind, 121, 138).

²² Stanley v. Powell [1891] 1 Q. B. 86.

²³ The question is sometimes posed more tersely in the form:Is there a law of tort or simply a law of torts? But the antithesis is illusory. It would be about as sensible to ask: Is there law or are there simply laws? Is there crime or are there simply crimes? The answer in each case is that the two conceptions do not exclude each other. A law is part of law. A tort (like a crime) is either (1) a concrete wrongful act or (2) a species of wrong coming within the generic conception of tort (or crime). No theory of liability is involved in this, and hence there is no need for anyone, however conservative, to fight shy of the phrase ‘ law of tort’.

²⁴ Text-Book, 19—21.

²⁵ That is, a mere statement of identity: ‘unjustifiable ’ harm = ‘tortious ’ harm, where ‘unjustifiable ’ is meant to bear the same meaning as ‘tortious ’. (We may put aside the point that harm may be caused unjustifiably and yet not by a tort—for instance, by a breach of contract.)

Since I shall have more than one occasion to refer to identical propositions of this sort, let me say at once that there is no objection to them as such, provided that no conclusions are drawn from them. The point is simply that they must not be made the foundation of an argument. Yet it is common to find them pressed into this service. To illustrate this, there is the story of the man who abused his wife, was unfaithful to her, was dishonest in business, and was not particular in his use of language, and yet his life on earth was described in the lines:

This man maintained a wife's a wife,

Men are ae they are made,

Business is business, life is life;

And called a spade a spade.

Legal arguments of equal inconsequence will be noticed later.

²⁶ Professor Winfield very properly omits from his judicial anthology (27 Col, L. Rev, 3—6) some remarks that are mere logical roundabouts of this nature. Thus Lord Campbell said in Lynch v. Knight (1861), 9 H. L. C. 577 at 589: ‘ Although this is a case of the first impression, if it can be shown that there is presented to us a concurrence of loss and injury from the act complained of, we are bound to say that this action [i.e. an action on the case] lies.‘ And in Bowen v. Hall (1881) 6 Q. B. D. 333 at 337, Brett M.B. said: ‘ Whenever a man does an act which in law and in fact is a wrongful act, and such an act as may, as a natural and probable consequence of it, produce injury to another, and which in the particular case does produce such an injury, an action on the case will lie.” Here the words ‘ injury ”, ‘ wrongful act’, rob the statements of significance for our purpose; they are of interest only on the scope of the action of case.

²⁷ Let me say here that throughout this paper the words ‘ damage ” and ‘ interest ” are used (unless otherwise specified) with a purely factual meaning. ‘ Interest” is, in the words of the American Restatement, Torts, § 1, ‘ the object of any human desire ” (cp. Pound in Selected Essays on the Law of Torts (1924) 87, note). ‘ Damage ” signifies any frustration of such a desire.

²⁸ (1868) L. R. 3 H. L. 330.

²⁹ Winfield in (1926) 42 L. Q. R. 37.

³⁰ (1910) 26 L. Q. R. 421. Cp. the same author's book review in (1931) 47 L. Q. R. 589, which is not so precise.

³¹ Or, as I prefer to say, ‘carelessness ’. The use of the word ‘negligence ’ is a petitio principii, because it presupposes a legal duty of care.

³² A recent instance is the dictum of Lord Wright in Lindsey C. C v. Marshall [1937] A. C. 97 at 121.

³³ By ‘ duty of care ’ I understand a legal duty imposed upon the defendant not to cause damage of a specified kind to the plaintiff by carelees conduct.

³⁴ (1928) 28 Col. L. Rev. at 1021.

³⁵ J. S. Mill, indeed, assumed that there would be liability: On Liberty, 3rd ed. 24–5.

³⁶ See Ames, ‘ Law and Morals ” (1908) 22 Harv. L. Rev. 97 at 111–13 (reprinted in the same author's Lectures (1913) 435 at 450–2, and in Selected Essays in the Law of Torts (1924) 1 at 15—17); Bohlen, ‘ Moral Duty to Aid Others ” (1908) 56 U. of Pa. L. Rev. 217, 316 (reprinted in his Studies (1926) 291; see particularly p. 339); Pound, Law and Morals (1826) 67–9; Cardozo, Paradoxes of Legal Science (1928) 25–6; Allen, ‘ Legal Duties ’ (1931) 40 Yale L. J. 331 at 367–70 (reprinted in his Legal Duties (1931) 156 at 204–8); Cecil A. Wright in (1932) 10 Can. B. Rev. 11; (1937) 35 Mich. L. Rev. 503. The American Law Institute's Restatement, Torts, §§ 314, 315, 321–5, gives a clear picture of the present law.

³⁷ As Ames and Pollock excluded them.

³⁸ ‘ Duty in Tortious Negligence ” (1934) 34 Col. L. Rev. 41 at 64. See also Buckland in (1935) 51 L. Q. R. 637. Professor Buckland seems to attach a narrower significance to the phrase ‘duty of care ” than I give it, and the same may be true of Professor Winfield.

³⁹ British Industrial Plastics, Ltd. v. Ferguson [1938] 4 All E. R. 504. The rule may perhaps be explained on the ground of business expediency. As Lindley L.J. said, in a different context, ‘ if we were to extend the doctrine of constructive notice to commercial transactions we should be doing infinite mischief and paralysing the trade of the country ” (Manchester Trust v. Furness [1895] 2 Q. B. at 545).

⁴⁰ Cattle v. Stockton Waterworks Co. (1875) L. R. 10 Q. B. 453.

⁴¹ Thus even trespass vi et armis formerly lay for an assault upon a servant or wife: Reg. Brev. ff. 94b, 102a; per Lord Parker in Admiralty Commissioners v. S. S. Amerika [1917] A. C. 38 at 44–5. Yet a father has no legal interest in his child unless it happens that the child can by some stretch be regarded as his servant. A mere parental interest, standing alone, is not accorded protection; the protection it gets is parasitic upon the protection of pecuniary interest. This does not fit very well into the general theory. If the general theory is right, why is it that a father cannot sue directly for his daughter's seduction, irrespective of the technicalities of the present mode of proceeding?

⁴² Commentaries, iii, 142.

⁴³ I am not speaking of an intentional interference with the relation; here the protection is somewhat wider. See Gray v. Gee (1923) 39 T. L. R. 429; but cp. Morrow v. Yannantuono (1934) 152 Misc. 134, 273 N. Y. Supp. 912, noted in (1934) 4 Brooklyn L. Rev. 217. See Generally Green, ‘ Relational Interests ’ (1934–5) 29 111. L. Rev. 460, 1041; (1935) 30 111. L. Rev. 1, 314; (1936) 31 III. Ii. Rev. 35, where there is also a discussion of similar restrictive rules in the law of defamation.

⁴⁴ Per Lord Chelmsford in Du Boulay v. Du Boulay (1869) 6 Moo. P. C. (N.s.) 81 at 47; Day v. Brownrigg (1878) 10 Ch. D. 294. Pollock thought it enough to say of the plaintiff's claim in the latter case that ‘ such a right is not known to the law ’ (Torts, 319). Yet elsewhere he admitted that his theory ‘ would be stultified if “ just cause or excuse ” included the fact that the harm done to the plaintiff could not be ear-marked as the violation of a known specific right’ ( (1906) 22 L. Q. B. at 118).

⁴⁵ The authorities are reviewed in Dalton v. Angus (1881) 6 App. Cas. 740. Lord Penzance, while recognizing the rule, had no great regard for it; see his remark at p. 804. In the United States such a duty has been imposed (Corpus Juris, i, 1216–17). Moreover, even in England, there is a duty (apparently strict) not to cause the subsidence of (a) land in its natural state or (b) land weighted by buildings that do not increase ths lateral pressure. If this duty is broken the person affected may recover as parasitic damages the injury to the buildings as well as to the land: Hunt v. Peake (1860) Johns. 705; Stroyan v. Knowles (1861) 6 H. & N. 454; cp. Corpus Juris, i, 1215: (1935) 19 Minn.L. Rev. 587.

⁴⁶ Below, p. 125.

⁴⁷ It seems to me that Professor Winfield recognizes, this argument when he explains Mayor of Bradford v. Pickles by saying that the defendant was ‘ merely using his own land in a manner which the law considers unobjectionable ’ (Text-Book, 19). Since there appears to be no special virtue in ‘ using one's own land ’ as distinct from other types of conduct, this amounts to saying that a plaintiff who has been damaged cannot recover if the defendant was ‘ merely [acting] in a manner which the law considers unobjectionable ’. In other words, it means that a plaintiff who has been damaged can recover only if the defendant was acting in a manner which the law considers objectionable—i.e only if the defendant was acting contrary to law, in violation of a right in the plaintiff. So what remains of the quarrel with Salmond?

⁴⁸ It should be noticed that recklessness (i.e. advertent negligence) is frequently, though not always, classed with intention.

⁴⁹ See Goodhart, 2 Mod. L. Rev. at 2—3. I do not know why Professor Goodhart assumes that by ‘ wilful harm ’ Pollock meant ‘ harm inflicted merely for the purpose of harming ’. Some types of harm may be inflicted wilfully (i.e. intentionally) and yet in good faith. Pollock himself accepted the ruling in Mayor of Bradford v. Pickles [1895] A. C. 587, that motive is immaterial.

⁵⁰ [1906] A. C. 428.

⁵¹ In Gautret v. Egerton (1867) L. R. 2 C. P. 371 Willes J. went even farther, and said that ‘ no action will lie against a spiteful man who seeing another running into a position of danger merely omits to warn him ’ but see above, p. 118. For other examples see Terry in (1904) 20 L. Q. R. 20; Ames in (1905) 18 Harv. L. Rev. 416, n. 1; Carpenter in (1928) 41 Harv. L. Rev. 752–3; Kearney v. Lloyd (1890) 26 L. R. Ir. 268.

⁵² Bird v. Holbrook (1828) 4 Bing. 628; Townsend v. Wathen (1808) 9 East 277. Yet the cause of action does not seem to fit into any of the recognized torts, except possibly an amorphous tort of ‘ intentional physical harm ’ (cp. Winfield, Text-Book, 240–3). It is at least arguable that if negligent wrongdoing is a specific tort—and we now have the highest judicial authority for saying that it is—then intentional wrongdoing must be another specific tort. But it is only a question of words.

⁵³ Allen v. Flood [1898] A. C. 1 at 9.

⁵⁴ Last note. I am not here concerned with the possibility of malice affecting the defendant's liability; that is reserved for the next section.

⁵⁵ I use these terms with the meanings assigned to them by Hohfeld. Although they have not yet gained much currency in this country, they are well established in the United States and have been adopted in the Restatement.

⁵⁶ Torts, 13th ed. 23, 152–62, 637–8. Professor Goodhart, who seems to be puzzled by Pollock's phrase, does not give the second and third references (2 Mod. L. Rev. 3). Among Pollock's examples of ‘ common’ or ‘ ordinary’ rights, which my suggested principle fits, are: (1) trade competition, (2) interference with percolating water, (3) refusal to enter into a contract, (4) use of a name. (Of course in strict language none of these is a ‘ right’ but this wide use of the term is justified by its convenience.) On the other hand Pollock suggests other examples of ‘ the exercise of common rights ’ which my principle does not fit. They are: (1) ‘ a man's use of his own land in the common way of husbandry, or otherwise for ordinary and lawful purposes ’ (p. 153), (2) opening ‘ a new window so as to overlook my garden ’ (p. 158), (3) blocking windows that have no prescriptive right to light (p. 158), (4) inevitable accident resulting from traffic on the highway (p. 638). In these four contexts the phrase ‘ exercise of a common right ’ is no more than a label for miscellaneous cases in which the defendant is regarded as not being liable. At p. 419 Pollock gives the expression ‘ common right ’ another twist of meaning: it is the kind of right that is infringed by a common (or public) nuisance.

⁵⁷ That is, of course, right or no right against the defendant. It is possible for the proposed donee to be given a legal right against the defendant, obliging him not maliciously to interfere with the proposed bounty, even though he has no legal right against the proposed donor (see next section). But I do not think that any system of law could create a right not depending upon the defendant's bad faith.

⁵⁸ The proper definition of the term ‘ bad faith ’, with its alternatives ‘ (express) malice ’, ‘ improper motive ’, is a matter of considerable difficulty. For the present purpose I am content to take it in its narrowest possible meaning, ‘ unalloyed spite ’, or as Holmee J. phrased it ‘ disinterested malevolence ’. Whatever else it means, ‘ bad faith ’ certainly denotes the infliction of damage for its own sake, i.e. for the pleasure that the inflicting of it gives and for no other reason. How far the term extends beyond this to cases of mixed motive is too complicated an inquiry to be pursued here. In practice motives usually are mixed, and it is rare to find a perfect specimen of old-fashioned malice.

For comparative treatments of the subject see H. C. Gutteridge, ‘ Abuse of Rights ’ (1933) 5 C. L. J. 22; H. C. Leake, ‘ Abuse of Rights in Louisiana ’ (1933) 7 Tul. L. Rev. 426.

⁵⁹ See generally Ames, ‘ Tort because of a Wrongful Motive’ (1905) 18 Harv. L. Rev. 411.

⁶⁰ Per Wills J. in Allen v. Flood [1898] A. C. at 46: ‘ Any right given by contract may be exercised as against the giver by the person to whom it is granted, no matter how wicked, cruel or mean the motive may be which determines the enforcement of the right.’ But this assumes that the right is given by the contract; one must not forget the doctrine of public policy. Moreover, it is not impossible that some abuses of contractual right may be foiled by the issue of an injunction. In American Bank and Trust Co. v. Federal Reserve Bank (1921) 256 U. S. 350; 41 Sup. Ct. 499; 65 L. Ed. 983; 25 A. L. R. 971, where the defendant made a practice of holding back cheques and then presenting them to a bank in unduly large numbers, for the purpose of embarrassing it, the Supreme Court of the United States granted an injunction. ‘ The word “ right ” ’, said Holmes J. ‘ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion.’

⁶¹ It may conceivably be different if B actively presses X to sue A, desiring only to gratify a private spite against A. Cp. the case put by Ames, 18 Harv. L. Rev. at 420.

⁶² There is no liability for malicious and causeless civil actions; nor even for malicious and causeless prosecutions and bankruptcy proceedings if the instituter reasonably, though mistakenly, thought that there was just cause.

⁶³ [1895] A. C. 587. It is worth noticing, as a matter of academic interest, that ten years before Bradford v. Pickles, Pollock had suggested a contrary develop conclusion ‘ on principle ’ (see his Indian Civil Wrongs Bill, Torts, 13th ed. 638). Most jurisdictions in the U.S.A. allow only reasonable use of percolating water, and a malicious use is not regarded as reasonable: see E. W. Huffcut, ' Percolating Waters ' (1904) 13 Yale L. J. 222; Wigmore, Cases on Torts (1912) ii, App. A, ss. 111, 272.

⁶⁴ Bradford v. Pickles [1895] A. C. at 594. The preceding and succeeding sentences are not open to objection on the score of logic, but they are comparatively harmless because they are limited to the specific case before the House.

⁶⁵ It seems to me that this fallacy is at the bottom of as much false reasoning as can be found anywhere in tort. Consider, for instance, the oftquoted dictum of Parke B. in Stevenson v. Newnham (1853) 13 C. B. 285 at 297: ‘ An act which does not amount to a legal injury, cannot be actionable because it is done with a bad intent.’ This dictum is perfectly correct, and perfectly useless. Given the legal meaning of ‘ injury ’, it cannot by any possibility be untrue. Yet Lord Macnaghten declared that the ‘ sum and substance ’ of Allen v. Flood (which occupies 180 pages in the Law Report) is no more than this: see Quinn v. Leathem [1901] A. C. at 508–9. Cp. [1898] A. C. at 106 (Lord Watson), 124 (Lord Herschell), and 167–8 (Lord Shand). The same insidious platitude is to be found in Pollock, Torts, 23: ‘ Harm done without excuse cannot be made more wrongful than it is by the addition of bad faith or personal ill-will, nor made lawful by its absence.’ The statement at pp. 336–7: ‘ But certainly Allen v. Flood shows that a finding of malice will not supply the want of a cause of action ’, is either platitudinous or too wide. See also the speech of Lord Ashbourne in Bradford v. Pickles at p. 598: this starts by assuming that ‘ Mr. Pickles has acted within his legal rights throughout’, and after this there is nothing left to argue.

⁶⁶ Except a vague fear that (1) the jury is not a suitable tribunal for the determination of motive (which hae not been felt in the action for malicious prosecution), and correlatively that (2) inquiry into motives will tend to unsettle established rights. See Allen v. Flood [1898] A. C. at 118–19 (Lord Herschell), 153 (Lord Macnaghten). One is reminded of the timidity of the ‘ strict court of Venice’, when it was asked to season contractual rights with a doctrine of public policy.

‘Twill be recorded for a precedent,

And many an error, by the same example,

Will rush into the state: it cannot be.

⁶⁷ Hollywood Silver Fox Farm v. Emmett [1936] 2 K. B. 468. To the authorities cited in the judgment there may be added the dicta in Bamford v. Turnley (1862) 3 B. & S. 62 at 82–3, and Harrison v. Southwark, etc. Water Co. [1891] 2 Ch. 409 at 414. It is odd that in Bradford v. Pickles no argument seems to have been addressed to the House on the point of discoloration. Cp, Ballard v. Tomlinson (1885) 29 Ch. D. 115.

⁶⁸ The question was left open in Day v. Brownrigg (1878) 10 Ch. D. 294; cp. as to titles, Earl Cowley v. Countess Cowley [1901] A. C. 450 at 453. For an interesting discussion of the scope of the injunction see Zechariah Chafee, Jr., ‘Does Equity Follow the Law of Torts? ’ (1926) 76 U. of Pa. L. Rev. 1. As this writer very properly observes: ‘So long as judges are not expressly prohibited from using such a legitimate remedy as the injunction for a purpose which it will effectually obtain, the non-existence of an action for damages should be immaterial.’

⁶⁹ There are dicta in two American cases that an improper motive creates liability: McGuire v. Grant (1856) 25 N. J. L. 356; 67 Am. D. 49; Winn V.Abeles (1886) 35 Kan. 85; 10 Pac. 443; 57 Am. Rep. 138. It is true that a landowner must be conceded the right of removing the lateral support from his neighbour's house if there is no other way of preventing him from acquiring an easement of support. Cp. Dalton v. Angus (1881) 6 App. Cas. 740, at 775 (Fry J.), 785–6 (Bowen J.), 796–7 (Lord Selborne L.C.). But this excuse would be taken away if the neighbour were to offer to stop the prescriptive period running by an appropriate agreement.

⁷⁰ Per Lord Penzance in Capital and Counties Bank v. Henty (1882) 7 App. Cas. 741 at 766; per Wills J. in Allen v. Flood [1898] A. C. at 46.

⁷¹ There has been a noticeable change in the attitude of the American Courts to spite fences. At first they tended to refuse a remedy, but the tide turned with the judgment in Burke y. Smith (1888) 69 Mich. 380; 37 N. W. 838, and since then the trend of authority (in those jurisdictions where the matter has not been settled by etatute) seems to have been against their legality. The report of Raoich v. Mastrovich (1937) 273 N. W. 660 (S. D.) contains a photograph of one of these uncouth erections which should be studied by anyone who is satisfied to say that they are legal. But presumably the duty not to erect a spite fence, if it exists, must be subject to a similar limitation to that expressed in the last note but one.Google Scholar

⁷² It is a tort to interfere with a person in his trade or calling by ‘unlawful means’. And the phrase ‘unlawful means’ is not to be read in any narrow sense; it includes all means that the Courts regard as unlawful for this particular purpose, whether they are unlawful for other purposes or not. Thus in Garret (Garrett) v. Taylor (1620) Cro. Jac. 567; 2 Eolle Eep. 162, the defendant was held liable for frightening away the plaintiff's workmen and customers by mere threats of mayhem, without (seemingly) any actual assault upon them, and by mere threats of vexatious suits. It is not clear that these threats would have been actionable by the workmen and customers threatened.

⁷³ The words used by the defendant amounted to prophecy, not procurement: see Quinn v. Leathern [1901] A. C. at 506–7 (Lord Halsbury L.C.), 533–4, 537–8 (Lord Lindley); Street, Foundations, i, 353; Pollock, Torts, 345.Google Scholar

⁷⁴ Quinn v. Leathern [1901] A. C. at 514 (Lord Shand); see also Lord Brampton at p. 523. Cp. Wilgus, ‘The Authority of Allen v. Flood’ (1902) 1 Mich. L. Eev. 28.

⁷⁵ E.g. Mogul S.S. Co. v. McGregor, Gow & Co. [1892] A. C. at 49 (Lord Morris), 52 (Lord Field). Contra, Stirling J. in Ajello v. Worsley [1898] 1 Ch. 274 at 280, where, however, the plaintiffs failed to prove malice. In the celebrated Minnesota case of Tuttle v. Buck (1909) 107 Minn. 145Google Scholar; 119 N. W. 146; 131 Am. St. Eep. 446; 22 L. E. A. (u.s.) 599; 16 Ann. Cas. 807, where a banker opened a barber shop for the sole purpose of driving the plaintiff out of the business, it was held that the plaintiff had an action. Commenting upon the headnote to Allen v. Flood, the Court quoted from an earlier case the following apt criticism: ‘If the meaning of this and similar expressions is that where a person has the lawful right to do a thing irrespective of his motive, his motive is immaterial, the proposition is a mere truism. If, however, the meaning is that where a person, if actuated by one kind of a motive, has a lawful right to do a thing, the act is lawful when done under any conceivable motive, or that an act lawful under one set of circumstances is therefore lawful under every conceivable set of circumstances, the proposition does not commend itself to us as either logically or legally accurate.’ Cp. Dunshee v. Standard Oil Co. (1911) 152 Iowa 618; 132 N. W. 371.Google Scholar

⁷⁶ Per Eomer, L.J. in Giblan v. National, etc. Union [1903] 2 K. B. 600 at 619–20Google Scholar; cp. per Viscount Cave, L.C. in Smith, Sorrell v. [1925] A. C. 700 at 712–14.Google Scholar

⁷⁷ Ames (1905) 18 Harv. L. Eev. at 418–20 5. W. Huffcut, ibid. at 423–43; Lewis v. Bloede (1912) 202 Fed. 7; Carnes v. St. Paul Union Stockyards Co. (1925) 205 N. W. 630 (Minn.), noted in 10 Minn. L. Eev. 448 (where the burden of disproof of malice was thrust upon the defendant); Carpenter, ‘Interference with Contract Relations’ (1928) 41 Harv. L. Eev. 742–5, 754–62; Grismore, ‘Are Unfair Methods of Competition Actionable?’ (1935) 33 Mich. It. Eev. 321; (1936) 36 Col. L. Eev. 849. Cp. as to malicious interference with social relations (1927) 40 Harv. L. Eev. 1022. It is clear that there is nothing in cold logic to hinder the rule that ethics would suggest. Professor Huffcut, loc. cit. at 425, thought that ‘if logic were to prevail, we might be forced to the conclusion that intercepting by lawful means the expectation of forming contracts is non-actionable’. Logic would lead to no such result. The fact that A has not yet a contractual right against X does not logically mean that he may not have a tort right against B not maliciously to interfere with the expectation of a contractual right.

⁷⁸ (1937) 35 Mich. It. Eev. 1035, commenting upon Bohannon v. Wachovia Bank and Trust Co. (1936) 210 N. C. 679; 188 S. E. 390. In both this caee and Lewis Y. Corbin (1907) 195 Mass. 520; 81 N. E. 248; 122 Am. St. Sep. 261, the testator was deliberately misled by the defendant, but the plaintiff would have had no action for the specific tort of deceit, at least as that tort is understood in this country, because he was not intended to act on the representations. There is not yet any authority in the United States for imposing liability if the testator was not deceived. See also, on the general question, Terry, , Leading Principles of A.-A. Law (1884) 343–53; Huffcut in (1905)Google Scholar 18 Harv. L. Eev. at 425; Odgers, Libel, 6th ed. 91–2; Clerk and Lindsell, 9th ed. 123–4; (1935) 48 Harv. L. Eev. 984 (where it is pointed out that the plaintiff should be given only the pecuniary value of the expectancy); (1937) 35 Mich. L. Eev. 348–9. The objection of Cave J. in Allen v. Flood [1898] A. C. at 36, that ‘there is no such recognized trade or profession as that of a legacy hunter’, is rather jejune.

⁷⁹ In accumulating these arguments against the dicta in Pickles's Case I am more royalist than the King, for both Sir Frederick Pollock and Professor Winfield, whose theory seems to demand a courageous rejection of these dicta, seem to accept them. Pollock tried to fit them into hie theory by an adroit use of the conception of common right. Professor Winfield is brought to the reluctant conclusion that ‘with us there is nothing to prevent a man from … indulging in any … act of senseless spleen or prodigality which does not happen to fall within some definite tort or crime’ (Text-Book, 69)—a sentence in which Sir John Salmond might have heartily concurred. If the general theory of liability is to be forsaken in this, its narrowest possible application, I do not myself see how it is to be maintained in any application. But both these learned writers seem to agree that the law ought to stand otherwise: Pollock, Torts, 337; Winfield, Text-Book, 69–70; cp. Allen, Legal Duties (1931) 95; Goodhart, Essays in Jurisprudence and the Common Law (1937) 36–7.