If the act to be done is not unlawful, then the agreement or combination is not a conspiracy. The question then is: What were the acts done, or intended or agreed to be done, by which the trading was prevented?

In the second count, which plaintiff specially relies upon to sustain this view of his case, after charging generally the use of threats and intimidations, he specifies as follows: "The said defendants threatened, among other things, to discharge any man in the employ of said railroad company who should trade with plaintiff, and this threat was published," etc. This is the only "threat or intimidation" specified. But this act was not unlawful, as we have seen; and to denounce a determination to do it was not "threat" or "intimidation" in a legal sense. From this it is fairly inferable that, in this count as in the first, though plaintiff uses the general terms "unlawful and malicious threats," he refers to the so-called "threat" to discharge employés, and rests his case upon it. Presumably he has particularized the most wrongful act; or, at the most, the other "unlawful and malicious acts of the same and no worse character. This act, plaintiff says, was done by defendants wickedly and maliciously, with the intent and effect of breaking up his business.

are

The question then is: Is an act, not unlawful, rendered actionable to the one suffering injury therefrom because it is committed wilfully, wickedly and maliciously, and in pursuance of a conspiracy to inflict the injury suffered? Does one render himself liable in damages for maliciously and wickedly exercising his rights, or denouncing his intention of so doing, if thereby he injures another?

The cases relied on by plaintiff, cited by Mr. Addison in his work on Torts, Secs. 20, 22-where tenants were driven from their holdings, scholars frightened from school, persons prevented from trading at one's store or with a vessel, buyers and workmen driven from a quarry-do not serve as precedents, for the reason that in all of them the defendants either committed or threatened unlawful acts. In most of them violence was used or threatened; in some statutory misdemeanors were committed; in others fraud, duress or libel was resorted to. This relieved the cases of the difficulty and doubt which exists in this, where there is no libel, violence or broken statute. In Sec. 40, however, Addison declares broadly that "every malicious act is wrongful in itself in the eye of the law, and if it causes hurt or damage to another, it is a tort, and may be made the foundation of an action." Upon this plaintiff relies; and if this broad statement contains a correct exposition of the law, he is right, and the demurrer should be overruled; for the declaration abounds in charges of malice and wrong. But is this the law?

To answer correctly, it must first be understood what is meant

by "malicious act.” In common parlance it is an act proceeding from hatred or ill-will; or dictated by malice; or done with wicked intentions or motives. But surely this cannot be the sense in which the phrase is employed by Addison; for if it were, my neighbor would be liable to me if, from ill-will or wicked motive, he refused to let me get water at his spring; or made a road for myself through his farm; or locked his pump or his gate against me; or built his store or shop or a high fence on his own land in such close proximity to my windows as to exclude light and view.

It is unreasonable that actions should be maintained for any of these things. For though my neighbor is causing me hurt, and that too from wicked motives, and is violating the moral law, he is only exercising his undoubted right to use his own for himself and deny me all privilege in it; and this the law does not punish, as has often been ruled in courts of the highest character. Story v. Odin, 12 Mass. 157; Mahan v. Brown, 13 Wend., 261; A. & C. P. R. Co. v. Douglass, 5 Seld. 447; Lasala v. Holbrook, 4 Paige, 169; Thurston v. Hancock, 12 Mass. 220. Judge Cooley, in his works on Torts, p. 278, says: "It is a part of every man's civil rights that he be at liberty to refuse business relations with any person whomsoever, whether the refusal rests upon reason or is the result of whim, caprice, prejudice or malice. With his reasons neither the public nor third persons have any legal concern." And again at p. 688: "The exercise by one of his legal right cannot be a legal wrong to another. Whatever one has a right to do another can have no right to complain of." This he considers a mere truism.

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Baron Parke said in Stevenson v. Newham, 13 C. B. 285: “An act which does not amount to a legal injury cannot be actionable because it is done with a bad intent." And Judge Black in Jenkins v. Fowler, 24 Pa. St. 308, declares: "Any transaction which would be lawful and proper if the parties were friendly cannot be made the basis of an action merely because they happen to be enemies. As long as a man keeps himself within the law by doing no act which violates it, we must leave his motives to Him who searches the heart." Judge Cooper, in accordance with these views, has declared in Macy v. Childress, 2 Tenn. Chap. 442: "It is no defense to a legal demand, instituted in the manner prescribed by law, that the plaintiff is actuated by improper motives. The motive of a suitor cannot be inquired into. Were it otherwise, nearly every suit would degenerate into a wrangle over motives and feelings."

The question was ably argued and received elaborate consideration in the Supreme Court of Maine, in the recent cases of Heywood v. Tilson, 46 Am. Rep. 373, wherein it was decided, without dissent, that no action lies by the owner of a house against one who maliciously refuses to employ any tenant of such house and

thus prevents the renting. It would be unendurable if our courts of law should be perverted to the trial of the motives of men who confessedly had done no unlawful act.

Upon both reason and authority, therefore, it is clear that the phrase, "malicious act," cannot be used by Mr. Addison in this connection in the popular signification, or if so used by him, it is

not a correct statement of the law.

In another sense it is correct. Prof. Greenleaf, in his 2d volume on Evidence, Sec. 453 (2), thus defines a malicious act: "In a legal sense any unlawful act, done wilfully and purposely to the injury of another, is, as against that person, malicious. To determine, then, whether a malicious act is wrongful in the legal sense, and therefore actionable, we must first determine whether it is unlawful. But if it is unlawful and injurious, it is actionable irrespective of the motive; and whether malicious or not, if not unlawful and injurious, it is not actionable.

Plaintiff appeals with confidence to the legal maxim: There is no wrong without its remedy. Far be it from us to shake the public and professional confidence in this venerable maxim of the English common law; but, as it is a legal maxim, it must be taken in a legal sense. So taken, obviously, it can mean no more than that there is a legal remedy for every legal wrong: i. e., for every injury suffered from the effect of an unlawful act, or a lawful act done in an unlawful manner.

Neither is shown here. Defendants have merely warned their employés not to trade with plaintiff, or if they do, they must give up their employment. They had the right to discharge them on this ground; it was not wrong, but highly proper, to give the employés notice of the intention of the company. The manner of giving the warning was not unlawful. The posted notice contained no word of libel or reproach upon the character of plaintiff; no charge or insinuation that he was unfair in his dealings. Omitting any attack on plaintiff's character as a man or trader, defendants, in the usual manner, told its employés to quit trading with plaintiff, or to quit working for them. The common law does not forbid such an act, nor has it been made unlawful by statute, as in some of the States, and probably in England. No legal wrong has been done; therefore there is no legal remedy. Courts administering the civil law cannot punish sin or wickedness unless it be committed in violation of the civil law, which is the measure of their jurisdiction. Nor will the maxim, Sic utere tuo ut alienum non ladas, aid the plaintiff in his contention. As commonly translated, "So use your own as not to injure another's," it is doubtless an orthodox moral precept; and in the law too it finds frequent application to the use of surface and running water, and generally to easements and servitudes. But strictly even then it can mean only, "So use your own that you do no legal

damage to another's." Legal damage, actionable injury, results only from an unlawful act. As paraphrased, the maxim means no more than, "Thou shalt not interfere with the legal rights of another by the commission of an unlawful act."

A majority of the court, therefore, conclude that the act done— i. e., the publication of the notice that the company would discharge employés who traded with plaintiff-was not an unlawful act nor an unlawful threat; was not a libel; and, though done wickedly and maliciously, is still not actionable, because it was not an unlawful act nor done in an unlawful manner.

The judgment of the circuit court will be affirmed.
Judgment affirmed.

STATE OF SOUTH CAROLINA

v.

HATHCOCK.

(20 South Carolina Reports, 419.)

Laborers employed in working upon the road-bed of a railroad company, which was engaged in carrying freight, passengers and mail, were summoned to work upon the public highways, but failed to appear. Upon being prosecuted for such failure, they interposed their daily and constant employment at that time as a justifiable excuse, which defense was, however, overruled by trial justice and circuit judge. Held that, there being no definition of what was a justifiable excuse in such cases, this court could not declare the ruling below to be error of law.

THESE were prosecutions against Oliver Hathcock, Walter Kelly, George McConnell, James McConnell, and Rhett Jordanfive cases heard together, the same point being involved in all. In dismissing the appeal to the circuit court, the presiding judge said:

The defendants were convicted and sentenced to pay each a fine of five dollars, or be imprisoned ten days in the county jail. The defendants appeal on the grounds: 1. That their employment, as above stated, in the service of the railroad company is a justifiable excuse." 2. That, being so employed, they are not liable to

road duty.

66

These defendants are not the employés of the Government, either State or Federal. They have no claim on the Government, and are in no way responsible to it. They are employed and, Í take it, paid, and can be dismissed by the railroad company at its pleasure. Except that they are paid for the time they work and not by the job, there is no difference between them and those who get out cross-ties, bridge and trestle timber, and fire-woosdǝə I.

nothing in the nature of their connection with the railroad company which exempts them from road duty. They are not exempt by statute as a class.

What is a justifiable excuse is not defined in the acts. I think, however, that it must be something in the nature of an emergency, which cannot, with reasonable care, be provided against, as sickness or death in one's family, or even of a near neighbor or friend, where the common interests of humanity demand that business shall be laid aside for the care of the sick and dying. Some heavy loss from fire or flood might be sufficient to excuse the sufferer during the temporary pressure on him. I take it that any sudden and unexpected demand on the railroad company to repair damages from a freshet, or some accident on the railroad, might excuse the railroad hands. There is nothing of the sort in this case-nothing which could not have been provided for. The railroad company only employed hands enough to do their work, while it would have been easy to have employed sufficient force to do its work, making proper allowance for that which the State demands. I do not think that any class of persons not named as exempt in the act can plead their employment or occupation as ipso facto a valid or justifiable excuse for failure to do road duty.

The judgment of the trial justice in these cases is therefore confirmed.

The defendants' exception to this judgment was as follows:

For that his honor did not hold that while a track hand was working upon the track of a railroad, then in operation, at a time when his so working was necessary for the safe transportation of merchandise, passengers and the United States mail, his being so employed constituted a "justifiable excuse" for not working upon the dirt highways of the State at that time.

J. II. Rion, for appellant.

Solicitor Gaston, contra.

SIMPSON, C. J.-The defendants were employed by the Charlotte, Columbia & Augusta Railroad Company to work on the road-bed of said railroad, and it is said "that they were engaged on said work every day in the year, Sundays excepted, constantly employed in keeping said road-bed in condition, and that no more hands were employed than necessary for this purpose.' While thus employed, they were warned to work on a public highway near by. This notice they disregarded, and failed to appear. Being indicted before a trial justice, they interposed the defense of "justifiable excuse," founded upon the facts above stated.

The act under which the defendants were indicted is found in general statutes, Sec. 1085. It provides, "that if any person of legal age shall neglect to appear, or shall refuse to work upon the highways or roads (having no justifiable excuse), according to the