Page:Harvard Law Review Volume 2.djvu/45

 LUMLEY V. GYE.

27

follows that the case of Lumley v. Gye is only one example of a class of cases in the law of torts, not included under any specific name, where damage is made actionable because it is malicious.

The act to be malicious must be done without a justifiable cause. In all of the cases thus far cited the act done by the de- fendant, where it was a lawful act, was done in the exercise of some common right, like the right to enter into a contract or to carry on a business or trade ; and, in such cases, it may safely be stated that if such an act is done with a malicious purpose, or, what is the same thing, in violation of superior rights acquired by others, with knowledge of the existence of such rights, the act becomes wrongful and subjects the defendant to damages. So far actual decision has gone, though not without conflict.^ But where the. act is done by the defendant in the exercise of some right vested in him, individually, as by contract or grant, or as owner of property, a malicious purpose will not render the act unlawful, provided the method of exercising the right is lawful. In that class of cases the principle of Lumley v, Gye has no application, for the weight of authority is strongly in favor of the proposition that malice is immaterial.* As a question of principle, much might be said in favor of making all malicious acts unlawful, where malice is clearly proved; but the question being one that de- pends entirely upon reasons of expediency and policy, a course of decision, in different jurisdictions, tending strongly in one direc- tion, is very convincing evidence of the weight of reason in the case.*

William Schofield. Boston.

1 Heywood v, Tillson, 75 Maine, 225 ; Payne v. Western R.R. Co., 13 Lea, 507.

the contrary, and the case of Chesley v. King, 74 Maine, 164, was directly contra; but that case seems to be of no authority since the decision in Heywood v. Tillson, supra,
 * See Cooley on Torts, 81, 581, where authorities are collected. There are dicta to

use of property was actionable. " Denique Marcellus scribit, cum eo qui in suo fodiens vicini fontem avertit, nihil posse agi, nee de dolo actionem ; et sane non debet habere, si non aniroo vicino nocendi, sed suum agrum meliorem faciendi id fecit.'* D. 39, 3, I, 12 (Ulpian). A similar principle is recognized in the Scotch law. See Pollock on Torts, 136, 137.
 * In the Roman law, in the case of adjoining owners, it seems that a malicious