Page:Harvard Law Review Volume 8.djvu/26

10 lO HARVARD LAW REVIEW. yet of privilege in connection with wrongful acts of others. Also, I have left on one side exceptional cases where the act induced by the defendant would have been a tort or a crime had the third person had his knowledge, for instance, the innocent giving of a poisoned apple. If the harm were of a more serious nature than loss of business, that naturally would narrow the privilege, but it is not likely to be so in the cases which I have had in mind. I now pass to an entirely different class of cases. In these, intent to produce the harm complained of has an importance of its own, as distinguished from notice of danger on the one side, and from actual malice on the other. To begin at a little distance, one of the difficulties which must occur to every one in thinking of the external standard of liability is : if notice so determined is the general ground, why is not a man who sells fire-arms answer- able for assaults committed with pistols bought of him, since he must be taken to know the probability that, sooner or later, some one will buy a pistol of him for some unlawful end? I do not think that the whole answer to such questions is to be found in the doctrine of privilege. Neither do I think that any instruction is to be got from the often-repeated discussions as to cause. It is said that the man whose wrong-doing is nearest to the injury is the only cause of it. But, as is pointed out in Hayes v. Hyde Park,^ a man whose act is nearest to the injury is as much a cause when his act is rightful, as when it is wrongful. Yet an interven- ing act may not exonerate the defendant. The principle seems to be pretty well established, in this coun- try at least, that every one has a right to rely upon his fellow-mea acting lawfully, and, therefore, is not answerable for himself acting upon the assumption that they will do so, however improbable it may be. There may have been some nibbling at the edges of this rule in strong cases, for instance, where only the slight negligence of a third person intervenes, or where his negligence plays only a subordinate part, but the rule hardly will be disputed. It applies in favor of wrong-doers as well as others. The classical illustra- tion is, that one who slanders another is not Hable for the wrong- ful repetition of the slander without his authority, but the principle is general.^ If the repetition were privileged, and so rightful, 1 153 Mass. 514. 2 Ward V. Weeks, 7 Bing. 211, 215 ; Cuff z/. Newark & New York R. R., 6 Vroom, 17, 32; ClifEord v. Atlantic Mills, 146 Mass. 47; Tasker v. Stanley, 153 Mass. 148, ISO.