Page:Harvard Law Review Volume 8.djvu/27

PRIVILEGE, MALICE, AND INTENT. II and also were manifestly likely to happen, the law might be otherwise.^ But the case is different when a defendant has not stopped at the point of saying, I take it for granted that my neighbors will keep to the law, and I shall not let myself be checked in doing what I like, by the danger which there would be, if they acted un- lawfully ; when, instead, he not only has expected unlawful con- duct, but has acted with the intent to bring about consequences ,which could not happen without the help of such unlawful acts on the part of others. The difference is illustrated by the difference between the general right of a landowner, as against trespassers, to put his land in what condition he likes, and his liability, even to trespassers (without notice), for man-traps or dog-spears. In the latter case, he has contemplated expressly what he would have had a right to assume would not happen, and the harm done stands just as if he had been on the spot and had done it in person. His intent may be said to make him the last wrong-doer.* So when the wrongful act expected is that of a third person, and not of the plaintiff, the defendant may be liable for the con- sequences of it. There is no doubt, of course, that a man may be liable for the unlawful act of another, civilly as well as criminally, and this now is pretty well agreed when the act is a breach of con- tract as well as when it is a tort.^ He is liable, if having author- ity he commands it ; he may be liable if he induces it by persuasion. I do not see that it matters how he knowingly gives the other a motive for unlawful action, whether by fear, fraud, or persuasion, if the motive works. But, in order to take away the protection of his right to rely upon lawful conduct, you must show that he in- tended to bring about consequences to which that unlawful act was necessary. Ordinarily, this is the same as saying that he must have intended the unlawful act. To sum the matter up in a rule, where it is sought to make a man answerable for damage, and the act of a third person is nearer in time than the defendant's to the harm, if the third person's act was lawful, it stands like the workings of nature, and the question is whether it reasonably was 1 Elmer v. Fessenden, 151 Mass. 359, 362, and cases cited. See Hayes v. Hyde Park, 153 Mass. 514. 3 Bird V. Holbrook, 4 Bing. 628, 641, 642. See Jordin v. Crump, 8 M. & W. 782 ; Chenery v. Fitchburg R. R., 35 N. E. Rep. 554, 555. ' Lumley v. Gye, 2 El. & Bl. 216; t Ames & Smith, Cases on Torts, 600, 612, note by Professor Ames.