the language familiar in cases of slander. . . . I am not trying to justify particular doctrines, but to analyze the general method by which the law reaches its decision. So it has been thought that refusing to keep a man in one's service, if he hired a house of the plaintiff, or dealt with him, was absolutely privileged. Here the balance is struck between the benefit of unfettered freedom to abstain from making that contract, on the one side, and the harm which may be done by the particular use of that freedom, on the other.. To sum up this part of the discussion, when a responsible defendant seeks to escape from liability for an act which he had notice was likely to cause temporal damage to another, and which has caused such damage in fact, he must show a justification. The most important justification is a claim of privilege. In order to pass upon that claim, it is not enough to consider the nature of the damage, and the effect of the act, and to compare them. Often the precise nature of the act and its circumstances must be examined. . . . In all such cases the ground of decision is policy; and the advantages to the community, on the one side and the other, are the only matters really entitled to be weighed. . . . 752. PASSAIC PRINT WORKS v. ELY & WALKER DRY-GOODS CO. (1900. U. S. C. C. A. 105 Fed. 163.) SANBORN, J. . . . The general rule is that whenever one injures a man's business, profession, or occupation he is liable for the damages he inflicts. The exception is that where the injury is caused by competition in trade or the lawful exercise of a right which the inflictor has, then the injury is justifiable, and no damages can be recovered. But, where such an injury is inflicted, the presumption always is that the rule, and not the exception, applies, and, if the inflictor would justify, he must show that he falls within the exception. The question in this case, therefore, is not whether or not the motive or intent of the defendants will make acts unlawful which were otherwise lawful, but whether or not the intent and purpose of the defendants will justify an otherwise unlawful act, and excuse them from the payment of damages for which, under the general rule of law, they are liable to the plaintiff. . . SUB-TITLE (I): POLICIES SEEKING JUSTIFICATION IN THE NECESSITIES FOR PROTECTION AGAINST NATURAL CALAMITIES (WAR, FIRE, TEMPEST, DISEASE, ETC.) 753. MALEVERER v. SPINKE. (1585. 1 Dyer 35 b.) We will well agree that in some cases a man may justify the commission of a tort, and that is in cases where it sounds for the public good; as in time of war a man may justify making fortifications on another's land without licence; also a man may justify pulling down an house on fire for the safety of the neighboring houses; for these are cases of the common weal. So also is it, if the sheriff pursue a felon to an house, and in order to take him break open the doors of the house, this is justifiable, because it is for the public good that such felons should be taken. But it is otherwise in particular cases; as if the sheriff break open an house to arrest one within the house by virtue of a capias in debt or trespass, he shall be punished, for this was a particular case, and is not for the public good. 754. THE CASE OF THE KING'S PREROGATIVE IN SALTPETRE. (1607. 12 Co. Rep. 12.) . . . When enemies come against the realm to the sea-coast, ... it is lawful to come upon my land adjoining to the same coast, to make trenches or bulwarks for defence of the realm; for every subject hath benefit by it. And for this, by the common law, every man may come upon my land for the defence of the realm, as appears 8 Ed. IV, 23. And in such case, on such extremity, they may dig for gravel for the making of bulwarks; for this is for the public and every one hath benefit by it; but after the danger is over, the trenches and bulwarks ought to be removed, so that the owner shall not have prejudice in his inheritance. And for the commonwealth, a man shall suffer damage; as, for saving of a city or town, a house shall be plucked down if the next be on fire. And the suburbs of a city in time of war for the common safety shall be plucked down. And a thing for the commonwealth every man may do without being liable to an action. 755. CONSTITUTION OF MASSACHUSETTS. (1780. Declaration of Rights, § 10.) Each individual of society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people . . . and whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor. 756. JAMES KENT. Commentaries on American Law. (1826. Vol. II, p. 338.) There are many cases in which the rights of property must be made subservient to the public welfare. The maxim of law is, that a private mischief is to be endured rather than a public inconvenience. On this ground rests the rights of public necessity. If a common highway be out of repair a passenger may lawfully go through an adjoining private enclosure. . . So it is lawful to raze houses to the ground to prevent the spreading of a conflagration. These are cases of urgent necessity, in which no action lay at common law by the individual who sustained the injury. But private property must, in many other instances, yield to the general interest. The right of eminent domain, or inherent sovereign power, gives to the Legislature the control of private property for public uses, and for public uses only. Roads may be cut through the cultivated lands of individuals without their consent. In these and other instances which might be enumerated, the interest of the public is deemed paramount to that of any private individual; and yet, even here, the Constitution of the United States, and of most of the States of the Union, have imposed a great and valuable check upon the exercise of legislative power, by declaring that private property should not be taken for public use without just compensation. . . . This principle in American constitutional jurisprudence is founded in natural equity, and is laid down by jurists as an acknowledged principle of universal law. Grotius, de Jure, B. & P. b. 3, c. 19, sec. 7; Puffendorf, de Jure Nat. et Gent. b. 8, c. 5, sec. 3, 7; Bynkershoek, Quaest. Jur. Pub. b. 2, c. 15; Vattel, b. I, c. 20, sec. 244; Heineccius, Elem. Jur. et Nat. b. 2, c. 8, sec. 170. 757. STONE v. MAYOR AND ALDERMEN OF NEW YORK. (1840. 25 Wend. 157, 173.) VERPLANCK, Sen. There are, I conceive, two different and distinct principles upon which private property may be justly taken, used, or detroyed for the benefit of others. Both of these are commonly comprehended and confounded in the phrase of "taking or destroying private property for public benefit." One of these principles is applied when the property of an individual is taken by the authority of the State for the common use or benefit of the public; that is to say, either for general use and benefit of the people or State, in its aggregate character, or else of all such of its citizens, without distinctions, as may happen to have occasion for the use of such property. Property used or destroyed for the necessities of the common defence in war, lands taken for a canal or a road, are instances of such application. Such, too, in another and secondary form, is the taking of lands by a corporate company for a railroad, or turnpike, under State authority, where the company enjoying a public franchise, so far represents and is a trustee for the public. All this is done solely by virtue of that right of Eminent Domain, whereby the whole property of the individuals who compose the State is held subject to the sovereign authority, to be used for the common advantage. It rests, substantially upon the same foundation with the right of taxation. . . But there is also another ground upon which the property or rights of individuals may be justly sacrificed to the necessities of others, where neither the State, as a whole, nor the public, in the general sense of that term, have any interest in such a sacrifice. This may be seen in cases of imminent peril, when the right of self-defence, of the protection of life or of property, authorizes the sacrifice of other and less valuable property. The throwing overboard of goods in a storm, the pulling down of houses to prevent the spread of a conflagration, are common examples of the exercise of this right. This is a natural right, arising from inevitable and pressing necessity, when of two immediate evils, one must be chosen, and the less is voluntarily inflicted in order to avoid the greater. Under such circumstances the general and natural law of all civilized nations, recognized and ratified by the express decisions of our common law, authorizes the destruction of property by any citizen, without his being subject to any right or recovery against him by the owner. The agent in such destruction, whether in protection of his own rights or of those of others which may be accidentally under his safe-guard, acts from good motives and for a justifiable end; so that against him the sufferer has no rightful claim. But the loser may have an equitable right of compensation against those who have benefited by his loss in the preservation of their property. In marine losses of this nature, the law has been able to establish a just rule of compensation and assessment; and the same principle, so far as it is possible to apply it, would be equally equitable in similar losses by land. But as to most of these, from the impossibility or extreme difficulty of ascertaining the parties benefited or protected from loss, and of settling the average proportions of the loss amongst them, by any general rule, the sufferer is commonly left without legal remedy. It is a defect in the law, well deserving legislative attention. Thus, those who, whether magistrates or private citizens, under the pressure of inevitable danger, and to prevent a greater calamity, find themselves compelled to destroy the effects of others, are not and ought not to be adjudged trespassers, although they do not act for the State or the public, but merely for the service of some few of their neighbors or fellow-citizens, and have thus inflicted involuntary injury upon some to prevent a much greater calamity falling upon others. 758. WEST V. STATE. (1853. 1 Wis. 206 (233).) SMITH, J. In no just sense, can the requisition upon the citizen of his attendance upon the courts to testify as a witness be considered as the taking of private property for public use, within the meaning of the Constitution. The object of that provision in the fundamental law, was to protect the citizen from the grasping demands of government, not to absolve him from any of those various personal duties which every good citizen owes to his country; such as the performance of militia duty, obedience to the call of the proper authority for his personal service in suppressing a riot, the apprehension of a felon, affording assistance to officers in making arrests when resisted, and the like. There are very many instances in which the citizen is required to perform personal service, or render aid to his government, without other compensation than that of his participation in the general good, and his enjoyment of the general security and advantage which result from common acquiescence in such obligations on the part of all the citizens alike, and which is essential to the existence and safety of society. 759. CODE OF GEORGIA. (1862, § 2205; 1895, § 3056.) Destroying property for public good. Analogous to the right of eminent domain is the power from necessity vested in corporate authorities of cities, towns, and counties, to interfere with and sometimes destroy the private property of the citizen for the public good, such as the destruction of houses to prevent the extension of a conflagration, or the taking possession of buildings to prevent the spreading of contagious diseases. In all such cases any damages accruing to the owner from such acts, and which would not otherwise have been sustained, must be paid by such corporation. Topic 1. War 761. CHARLES VINER. A General Abridgement of Law and Equity. (2d ed., 1793. Vol. XX, p. 476. Trespass.) 3. Trespass for digging his land; the defendant said that it is four acres adjoining to the sea, in which all the men of Kent have used time out of mind when they fish in the sea, to dig in the land adjoining, to pitch stakes to hang their nets to dry. Nele said he ought to shew what men. Per CHOKE and LITTLETON [JJ.], this is no custom; for it is contrary to common right and reason. But per DANBY [J.], fishers may justify the going upon the land to fish; for this is for the common weal, and for the sustenance of several, &c. and it is the common law, quod fuit concessum; but per FAIRFAX [J.], the digging is the destruction of the inheritance, therefore it is no custom, &c. Brooke, Customs, pl. 46, cites 8 E. IV, 18, 19. 4. Trespass of cutting of grass; the defendant said that there is such a custom in the county of Kent, that when any enemies come to the sea it is lawful for all the men of Kent to come upon the land adjoining to those same coasts, in defence and safe-guard of the country, and there to make their trenches and bulwarks for the defence of the same country, and said that at the time of the same trespass enemies came, &c. by which they dug to make trenches and bulwarks, &c. Per JENNEY [J.], this is at common law to do so in defence of the realm; but CATESBY [J.], contra; inde, &c. quaere, Brooke, Customs, pl. 45, cites 8 E. IV, 23. 762. MITCHELL v. HARMONY SUPREME COURT OF THE UNITED STATES. 1851 13 How. 115 THIS case was brought up, by a writ of error, from the Circuit Court of the United States for the Southern District of New York. Mitchell was an officer of the army, and was sued in an action of trespass by Harmony for seizing his property in the Mexican State of Chihuahua.... The declaration was in the usual form and contained three counts, all of them charging the same trespass, namely, that the defendant on the 10th of February, 1847, at Chihuahua, in the Republic of Mexico, seized, took, drove and carried away, and converted to his own use, the horses, mules, wagons, goods, chattels, and merchandise, &c., of the plaintiff, and compelled the workmen and servants of the plaintiff having charge, to abandon his service and devote themselves to the defendant's service. The property so alleged to have been taken is averred to be of the value of $90,000, and the damages, $100,000. Besides the general plea of not guilty to the whole action, the defendant, Mitchell, pleaded several special pleas. . . . 2d. That the plaintiff, Harmony, was a citizen of the United States, and, with a full knowledge of the war, had gone with his wagons, merchandise, &c., into Mexico with design to trade with the people of Mexico, and to afford aid to same in said war; that said Doniphan (Commander), as he had a right to do, commanded the defendant to seize, take, &c., the said wagons, &c., and that he did, in obedience to said order take, &c., doing nothing more than was necessary to the execution of that order. 3d. With the same preliminary matter as the second plea, justifies the taking by his own (Colonel Mitchell's) authority as an officer. . . . When the testimony was closed, the judge charged the jury. The bill of exceptions brought the whole charge up to this court. The jury found a verdict for the plaintiff for $90,806.44; for which and the costs, amounting to $5,048.94, the Court gave judgment for Harmony. The cause was argued in this court by Mr. Crittenden, (Attorney General,) for the plaintiff in error, and Mr. Cutting and Mr. Vinton for the defendant in error. Mr. Moore also filed a printed brief. The points made by the counsel for the plaintiff in error were as follows: . . . 3dly. The next and third point of the [trial judge's] charge is this: "The next ground of defence, and which constitutes the principal question in the case, and upon which it must probably ultimately turn, is the taking of the goods by the public authorities for public use." In respect to this the judge admits the "right of a military officer, in case of extreme necessity of the government of the army, to take private property for the public service." But then the judge. further tells the jury, "in my judgment, all the evidence taken together does not make out an immediate peril or urgent necessity existing at |