Page:Harvard Law Review Volume 8.djvu/22

6 6 HARVARD LAW REVIEW, policy in favor of allowing a man to do harm to his neighbor for the sole pleasure of doing harm. But there is no need to stay in such thin air. Let us suppose another case of interference with business by an act which has some special grounds of policy in its favor. Take the case of advice not to employ a certain doctor, given by one in a position of authority. To some extent it is desirable that people should be free to give one another advice. On the other hand, commonly it is not desirable that a man should lose his business. The two advantages run against one another, and a line has to be drawn. So absolute a right of way may not be given to advice as to abstaining from some contracts which have been mentioned. In such a case, probably it would be said that if the advice was believed to be good, and was given for the sake of benefiting the hearers, the defendant would not be answerable. But if it was not believed to be for their benefit, and was given for the sake of hurt- ing the doctor, the doctor would prevail.^ If the advice was believed to be good, but was volunteered for the sake of doing harm only, courts might differ, but some no doubt would think that the privilege was not made out.^ What the effect of bad faith without malice would be is outside my subject. It will be seen that the external standard applied for the purpose of seeing whether the defendant had notice of the probable conse- quences of his act, has little or nothing to do with the question of privilege. The defendant is assumed to have had notice of the probable consequences of his act, otherwise the question of privi- lege does not arise. Generally the harm complained of is not only foreseen but intended. If there is no privilege, the difference between notice of consequences and malice is immaterial. If the privilege is absolute, or extends to malicious acts, of course it extends to those which are not so. If the privilege is qualified, the policy in favor of the defendant's freedom generally will be found to be quahfied only to the extent of forbidding him to use 1 See Morasse v. Brochu, 151 Mass. 567; Tasker v. Stanley, 153 Mass. 148; Delzz/. Wiiifree, 80 Texas, 400, 405. The cases often are obscure as to the precise nature of the act done, which seems to the a most important fact In Lumley v. Gye, 2 El. & Bl. 216, the allegation was that the defendant "enticed and procured " the third person to break the contract. In Bowen v. Hall, 6 Q. B. D. 333, the defendant Hall persuaded another to break his contract (pp. 338, 339). In Old Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48, the defendant " procured plaintiff's workmen " to leave their work, and so on. 2 See Stevens v. Sampson, 5 Ex. D. 53.