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THE GREEN BAG

may make the statements unless A can show that he made them with malice in fact. The idea that the law of malicious prose cution is exceptional in requiring proof of malice would have to be put thus: Every one has prima jade full legal right to sue or prosecute; hence wrongful means, in ac cordance with the very doctrine of the fore going pages, must be shown to make a case for redress. But proof of wrongful means should be enough; malice is unnecessary. The same reasoning would apply to the law of slander of title. I have full right to speak the truth; hence as above, in regard to malicious prosecution. The answer is, that there are cases in which the mere means or measures alone have always been considered, and justly, to be insufficient to overturn the legal right — something is needed in addition. Deceit furnishes a ready example; to prove that the result was brought about by means of false representation is not enough — knowledge of falsity, or some just equivalent, must also be proved. In a word, what in other cases, and sometimes indeed in deceit,1 is called malice (in a proper sense of that term) is required to make the case. The same may well be true of actions for malicious prose cution or slander of title. The wrongful means would be the false charge or claim; but a man should not be liable in tort for making a false charge or claim, in court or out of court. To wrongful means something must be added; it should not be enough in the case of a prosecution, that it was not well-founded, for that would discourage resort to the courts — the law has always and justly required that malice should be proved. And so of false statements out of court in regard to property; proof of falsity ought not to be enough — the statement may have been made in good faith. 1 Pasley v. Freeman, 3 T. R. 51, Duller J.: "The gist of the action is fraud and deceit; and if that fraud and deceit can be fixed by evidence on one who had no interest in his iniquity, it proves his malice to be the greater."

The requirement of proof of malice does not then make the law of malicious prose cution and of slander of title exceptional, however true it is that legal right is over turned in other important cases by wrong ful means alone. In slander and libel, the law of malice lies somewhat further afield, but it rests on the same sound footing. The plaintiff is not required in the first instance to prove malice, because defamation is in itself unlawful — there is no case of right, overturned by wrongful means; — but if the defense is an attempt to set up a (qualified) privilege, the plaintiff cuts the ground from under the defendant's feet by showing that he made the defamatory statement maliciously. His permission was not properly accepted. There is then no place in the current common law of torts in which malice alone can be said to overturn full legal right; ' and the subject, therefore, is to be considered as occupying a normal place in the law. It need only be added that where in cer tain cases, such as slander and libel, the making of a prima facie case is sometimes said to establish malice though no evidence 1 Quinn v. Leathern, 1901, A. C. 495; Allen v. Flood, supra; Bradford v. Pickles, 1895, A. C. 587; Mogul Steamship Co. v. McGregor, 1892, A. C. 25 (that the motive of benefitting 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); Chasemore v. Richards, 7 H. L. Cas. 349, 388; Stevenson v. Newnham, 13 C. B. 285, 297; Paine v. Chandler, 134 N. Y. 385, 390; Frazier v. Brown, 12 Ohio St. 294; Payne v. Western R. Co., 81 Tenn. 507; Boyson v. Thorn, 98 Calif. 578; Glencoe Land Co. v. Hudson Co. 138 Mo. 439, 445; Kelly v. Chicago R. Co. 93 Iowa, 436, 452; Bonn Manuf. Co. v. Hollis, 54 Minn. 223, 233; Chatfield v. Wilson, 28 Vt. 49; Jenkins v. Fowler, 24 Penn. St. 308; Rideout v. Knox, 148 Mass. 368, 372; Rice v. Albee, 164 Mass. 88; May v. Wood, 172 Mass. n. But see Wheatley v. Baugh, 25 Penn. St. 528, 533; Swett v. Cutts, 50 N. H. 439. Conversely, good motives will not make that lawful which otherwise is unlawful. Bradford v. Pickles, 1893, A. C. 587, 594. S98'. South Wales Miners' Fed. v. Glamorgan Coal Co. 1905, A. C. 239.