Page:Harvard Law Review Volume 8.djvu/28

12 12 HARVARD LAW REVIEW. to be anticipated or looked out for; but if the third person's act was unlawful, the defendant must be shown to have intended the act, or at least to have expected it, and to have intended conse- quences which could not happen without the act.^ Although actual intention is necessary in this class of cases, mal- ice commonly is not so, except so- far as the question of liability for an intervening wrong-doer is complicated with a question of privi- lege. The damage is assumed to be inflicted unlawfully, since the act of the third person which is nearest to it is assumed to be un- lawful. If the defendant has no notice that the third person's act will or may be unlawful, he is free on general principles. But, notwithstanding the reserves of Bowen v. Hall,^ if he knows that the act will be unlawful, it seems plain that persuasion to do it will make him liable as well when not malicious as when mali- cious. I cannot believe that bona fide advice to do an unlawful act to the manifest harm of the plaintiff ought to be any more privileged than such advice, given maliciously, to do a lawful act. Of course, I am speaking of effectual advice. It seems to me hard for the law to recognize a privilege to induce unlawful conduct. But, whether there is such a privilege or not, what I am driving at is, that apart from privilege there is no defence ; that is to say, that malice is not material, on any other ground than that of privilege, to liability for the wrongful act of another man. At this point, then, we have come again upon the question of privilege. When the purpose of the defendant's act is to produce the result complained of by means of illegal acts of third persons, his privilege will be narrower than when he intends to induce only legal acts. As I have said, I do not suppose that the privilege extended to honest persuasion to do harm to the plaintiff by lawful conduct, would extend to similar persuasion to do it by unlawful conduct. Take acts of which the privilege is greater. Could a man refuse to contract with A unless he broke his contract with B? There are cases by respectable courts which look as Lf he could 1 I venture to refer to a series of cases in which my views will be found illustrated. Hayes v. Hyde Park, 153 Mass, 514; Burt v. Advertiser Newspaper Co, 154 Mass. 238, 247; Tasker v. Stanley, 153 Mass. 148. [Note that, in this case, it did not appear that the conduct advised (the departure of the plaintiff's wife) would have been unlaw- ful in any sense, on the facts assumed as the basis of the advice. It did not appear what those facts were. The question of privilege, therefore, was the main one.] Elmer v. Fessenden, 151 Mass. 359, 362; Clifford v. Atlantic Cotton Mills, 146 Mass. 47. 2 6 Q. B. D. 333, 338.