THE GREEN BAG proof of malice, or where the law presumes malice, he cannot be held liable in punitive damages. So also, where intent is an inherent ingredient in the offense, and where intent is not, in itself, conclusively presumed from the facts, the defendant will not be liable. "When we come to the subject of negligence, we find the law to be in a most unsettled con dition. It seems to have been assumed, in the earlier dicta in the books, that a lunatic would be liable for negligence in like manner as a sane person." " But, if a man be non com pos mentis, it would seem that he should be no more liable for negligence than if he were blind or paralyzed and thereby physically incapacitated from doing or refraining from doing what an ordinarily prudent man should do or refrain from doing. " " That a man should be responsible in damages for failing to do what he was physically or mentally unable to do, is certainly shocking to the commonsense of the average individual." " What dif ference is there between the case of physical obscuration of the senses and the total obscur ation of the mental faculties?" "The truth is that there seems to be abso lutely no case where the liability of a lunatic for culpable negligence has been passed on judicially; at least, none has come to the notice of the writer, except the case of Wil liams v. Hays, with which the courts played battledore and shuttlecock, and which finally resulted in favor of the defendant." "It seems, indeed, most extraordinary that the question of the liability of a lunatic for negligence should be, at this late date, still an open question in this state. One would suppose that the question would have arisen frequently and would have been frequently the subject of adjudication. Similar instances, however, are constantly recurring, in the experience of every practitioner, where ques tions which lie at the very threshold of our jurisprudence seem never to have come before the courts for consideration, or, at any rate, have never received adjudication by the courts of last resort. The true rule and the only rule consistent with justice and reason, and the rule towards which the authorities are evidently tending, is that a person who is non compos mentis cannot be held liable for negligence."
TORTS
(Motive in Torts)
IN the Harvard Law Review for April (V. xviii, p. 411), Dean Ames, under the title "How Far an Act May be a Tort because of the Wrongful Motive of the Actor," criticises the dictum in Allen v. Flood that the law does not "take into account motive as con stituting an element of civil wrong." The author collects and considers instances in which the courts have passed on the ques tion of wilful damage animated by wrongful motive which he divides into three groups. "(i) Cases in which the wrongful motive has no legal significance, the actor, by general judicial opinion, being subject to no liability at law, however severe the judgment against him in the forum of morals; (2) Cases which have divided judicial opinion, some courts deciding that the actor should be charged because of his wrongful motive, others ruling that he should not be charged, notwithstand ing his wrongful motive; (3) Cases in which it is generally agreed that the actor should be charged because of his wrongful motive." In the first group he includes cases where the plaintiff himself has violated a legal duty and is only suffering the consequences and certain instances of privilege in defamation. In the second group he includes the use of one's own land not for the benefit of the owner but to the detriment of a neighbor. "That the conduct of the defendants in these cases is unconscionable no one will deny. That they should be forced to make reparation to their victims, unless paramount reasons of public policy forbid, would seem equally clear. But the absence of such reasons is evident from the fact that in France and Germany and so many of our states the courts have allowed reparation, and from the further fact that in at least six states statutes have been passed making the erection of spite fences a tort. Such legislation is likely to spread, so that ultimately the cases in this second group will belong in the third group." In the third group he includes malicious prosecution and abuse of privilege in defama tion and the inducing of breach of contract, including the familiar trade's union cases. The author submits that the true rule is that "the wilful causing of damage to another by a positive act, whether by one man alone,
