Connection of tort with criminal law,

on from the language of the criminal law, where it appeared to have an appropriate use, to the law of torts in the course of the emergence of that subject as a separate branch of law; where it was retained without regard to its inappropriateness to questions of civil liability'. Malice thus becomes, at last, a mere name of a legal conclusion, a name of nothing requiring proof; it is simply malice in law' or 'implied malice,' that is, it is a downright fiction.

as to malice.

6

To sum up: Malice, as an entity, in the eye of the law, like malice in popular speech, is a subjective fact. As such it may Summary of import (1) motive exceptionally, or (2) recklessdivision of ness, or knowledge that an act will be mischievous, malice as an element in or (3) nothing more than knowledge or notice of liability. the existence of some special relation which is interrupted. In the first case malice makes perhaps a true head in the law; but its place is in criminal and quasi-criminal jurisprudence. There is no other place for malice in the sense of an evil motive, as a necessary element of liability. In the second case it is an old term in civil liability. In the third case, the word having completely lost its natural meaning has no just claim to a place in the law of malice. The facts which constitute it prove merely the existence of a duty by such as have the knowledge or the notice. There is nothing distinctive of malice in that; for, as we have seen, to create a duty there must be observable danger; if danger could not be seen or foreseen-hence if the relation in question was not knownthere could be no duty. As for malice which is not an entity at all, but only a fiction, there is, a fortiori, no place for the troublesome term in any classification of subjects of the law.

It comes then to this, that malice in civil liability has a place in virtue of the legal extension of its popular meaning to cases of doing certain kinds of harm recklessly or with knowledge that such acts are harmful or unjust. In certain cases then malice in that sense makes an element in the cause

1 There is ground for distinguishing homicide from murder, by describing the latter as a killing with malice aforethought. Kenny, Outlines of Criminal Law, 125. But to transfer the term 'malice' to liability in tort, without discrimination, was to create endless confusion.

of action.

But it is still true that malice in the sense of an evil motive will also help to make a cause of action in the same cases; and that fact, which at first appears perplexing, calls for explanation1.

Effect of malice as motive

explained: overturns permission, not right: malicious prosecution.

The explanation is probably to be found in the fact that the acts complained of in the cases referred to are privileged, as that term has already been explained. They are not true acts of legal right; they fall short so far that they are only permissions. The chief example is malicious prosecution, already referred to. The term is only a title; the wrong for which an action lies is a malicious prosecution begun without reasonable or probable cause. These facts (together with the termination of the prosecution) must be proved by the plaintiff. Now it is clear that no man has a legal right to prosecute another without reasonable or probable cause. A man may do so, as we have seen; no action can be maintained against him for so doing. But that is all there is of it; the person so prosecuting is merely exempt from liability— probably that men may not be discouraged from resorting to the courts to settle their disputes.

That the matter does not rise above the level of permission to that of legal right, may readily be shown. Suppose that by false and fraudulent representations, whether by the person intended to be prosecuted or another, a civil prosecution, without reasonable or probable cause, is put off until it is barred by the Statute of Limitations; could an action be maintained for the fraud? Clearly not, for as there was no ground for the intended prosecution there could be no damage; and no other kind of action would fare any better. The intended prosecutor therefore had no legal right to prosecute; indeed it would be absurd to speak of a legal right to prosecute where there is no cause of action, and none the less because it may have been honestly supposed that there was a well-founded claim.

The explanation then of the fact that a plaintiff in a suit for malicious prosecution makes a case by proving (with other 1 The evidence will usually be objective, that is, external to the mind, as where excessive zeal in prosecuting is shown; but the evidence is offered to prove malice in the mind.

2 Compare Earl Cowley v. Countess Cowley, 1901, A. C. 450.

facts) that the prosecution was begun with malice as an evil motive, or with malice in any other subjective sense, is that proof of the kind merely overturns a permission or privilege. The permission or privilege rests in all cases, as we have seen, on the motive of interest or of duty,—in this case that the prosecution is brought with design to protect a proper interest of the prosecutor, or in the discharge of duty. If then the design was to harm the party prosecuted, in other words if the suit was brought with an evil motive towards him, it is not within the permission or privilege. And clearly there could be no privilege of the kind in question when the prosecution was begun in reckless or wanton disregard of the defendant's rights; the privilege must have been acted upon reasonably and in good faith'.

The case therefore is not one in which legal right, or, to use the more common term, a rightful act, is converted into a legal wrong by proof that the right was exercised with an evil motive; and the same may be said of malice in any other purely subjective form.

Slander of title, so called, an action for false and malicious disparagement of property, is also a case in which the disSame subject; paraging statements are simply permitted or privileged. A may falsely declare that B has

slander of title.

no title to a certain piece of land claimed by B, or make other false statements concerning B's property, real or personal; no action could be maintained against him for the statements, though B suffered damage by them, any more than if in the same sort of case A had brought suit to recover the land. But that is not because A had a legal right to do such a

1 Compare the language of Lord Halsbury in Earl Cowley v. Countess Cowley, 1901, A. C. 450, 453, where there was no more than a permission (to use a title of nobility).

2 Wren v. Weild, L. R. 4 Q. B. 730; Halsey v. Brotherhood, 19 Ch. D. 386; Gott v. Pulsifer, 122 Mass. 235, 238. But it should be noticed that the privilege in slander of title and in malicious prosecution is not the substantive privilege (set up in pleading) of slander and libel. It is not brought out except by inference in the pleadings or evidence. The language of the cases should not be misunderstood. In slander and libel, privilege is set up after the plaintiff has made a prima facie case; in slander of title the plaintiff has to overturn, in the first instance, what we have in the text spoken of as privilege,-which is privilege, not in the technical sense, but only in the sense that false words disparaging property are permitted if they were not malicious.

thing; the law simply permits him. He could not maintain a suit against one who, by using means of a wrongful nature, prevented him from doing the thing, as by tearing up scattered notices or hand-bills making the false statements. But A is permitted to make the false statements unless B shows that he made them maliciously (to his damage). The malice however would be shown by proof that A knew the statements to be false or made them in reckless disregard of B's rights1; that would overthrow the permission. Belief by A, on the other hand, in the truth of the statements, would be a defence if a prima facie case were made against him; and it seems to follow that malice in the sense of motive would be irrelevant to such a defence, whatever might be said of it if offered in evidence at the outset to make a prima facie cause of action.

Same: slan

There is nothing then in either of the subjects considered, from which it can be inferred that malice, in the sense of motive, can overturn legal right, so as to give to der and libel. motive a place in the classification of civil wrongs. In slander and libel, malice lies still further afield; it has nothing whatever to do as an entity, in any sense, with making a prima facie case. The plaintiff here does not have to overturn any privilege in advance; it is only when the defendant has set up a privilege and given evidence in support of the same that the plaintiff has anything to do but to prove the publication. Then, by proving malice, he cuts away the foundation of the alleged privilege; and all that he need prove in the way of malice is that the defendant published the charge knowing that it was false', or in reckless disregard of rights3. Fraud then in its more familiar aspect in tort, and even negligence, are to a certain extent interchangeable terms with malice, though malice, in the sense of motive, is not interchangeable with them. Nullum simile est idem.'

There is, finally, no authority now on the common law that

1 Wren v. Weild, and Gott v. Pulsifer, supra.

2 See Wren v. Weild, L. R. 4 Q. B. 734, 736, Blackburn, J.; Green v. Button, 2 Cromp. M. & R. 707; which were cases of slander of title.

3 Gott v. Pulsifer, 122 Mass. 235, slander of title.

Conclusion as to subjective malice.

malice, in any merely subjective sense, in acts otherwise done of legal right, is entitled to a place in the classification of civil wrongs, and the contrary may be laid down as accepted doctrine'. Conversely, it is equally true that an act which is wrong or wrongful' cannot be shown to have been done as of a right or justified by evidence that it was done from a good motive; and so of omissions or conduct of whatever kind. There has never been any question of this converse doctrine.

So much for Part I.

In Part II., breach of duty by Unlawful Acts, we come to a class of cases in which, though there is often a manifest intention on the part of the defendant to do the very thing

1 The following cases may be mentioned: Quinn v. Leathem, 1901, A. C. 495; Allen v. Flood, 1898, A. C. 1; Bradford v. Pickles, 1895, A. C. 587, affirming 1895, 1 Ch. 145; Mogul Steamship Co. v. McGregor, 1892, A. C. 25 (that the motive of benefiting the defendant at the expense of the plaintiff' is not malicious or unlawful, overruling on that point Bowen v. Hall, 6 Q. B. Div. 333, 338, Lord Esher); Chasemore v. Richards, 7 H. L. Cas. 349, 388; Heald v. Carey, 11 C. B. 977, 993; Stevenson v. Newnham, 13 C. B. 285, 297.

In Allen v. Flood, supra, the House of Lords overrules emphatic dicta in Temperton v. Russell, 1893, 1 Q. B. 715, C. A., reaffirms Mogul Steamship Co. v. McGregor, ut supra, and accordingly reverses Flood v. Jackson, 1895, 1 Q. B. 21. The case (Allen v. Flood) was twice argued in the House of Lords, ten other judges being called in, on the second argument, for advice. Against the advice of a majority of those judges the House of Lords held the plaintiffs not entitled to recover, though their own judgment was not unanimous. But the importance of the case, at first supposed to be very great, has been diminished by Quinn v. Leathem, supra, which practically reduces it to an authoritative declaration that an act which is in itself lawful, though causing harm, does not become unlawful by being done with a bad motive.

The Roman law took cognizance of malice as a motive, at least in regard to the use of land; and so does the modern Civil or Roman law. Digest 39, 3, 1, §§ 12-17; Bigelow's L. C. Torts, 515, 516, 525. See Sweet v. Cutts, 50 New Hampshire, 439; Bassett v. Salisbury Manuf. Co., 43 New Hampshire, 569; Graham v. St. Charles R. Co., 27 L. R. A. 416 (Louisiana).

Malice in relation to particular torts will be considered as the torts are reached, in Parts I. and II.

2 'Wrongful' applied to an act or omission does not necessarily import that the act or omission is a tort. It may import as much, or only that the act or omission is of an unlawful nature, requiring something else to make it a tort. False representation is an illustration.

3 Bradford v. Pickles, 1895, A. C. 587, 594, 598; Read v. Friendly Society of Stonemasons, 1902, 2 K. B. 88 (want of bad motives no justification); Hooper v. Truscott, 2 Bing. N. C. 457.