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 THEORY AND DOCTRINE OF TORT of malice has been given, the language is to be taken as a lingering archaism. All that is meant is that wrongfulness is established, which wrongfulness in cases having a traditional nomenclature is called malice.1 In such usage of the term, malice is the mere name of a legal conclusion. It is not an entity; it is only "malice in law" or "implied malice," that is, it is a downright fiction. "Malice in fact," required to over turn permissive right, is an entity to be established by evidence. To sum up the discussion : — That which is not in itself a tort is so far lawful. A lawful thing may be of full legal right or only permissive; how is this lawful thing to be converted into a thing unlaw ful? By wrongful means, by negligence, and in some cases regularly by malice in accordance with some such formula as the following : 1. I have full legal right (under freedom to do what is reasonable) to endeavor to buy, to sell, to contract, and to do other things; this right I may lose by the use of wrongful means to accomplish my purpose, or by 'negligence, but not, according to current legal doctrine, by malice alone. 2. I have permissive right to do a thing — for instance, to enter my neighbor's land in certain cases, or to bring an unfounded prosecution; if I accept the permission in a malicious spirit (towards my neighbor, or the person prosecuted, that is, towards the plaintiff) I do not accept it according to its terms, and I am liable for what I do as if no permission had been given. Eliminate now (from the defense) legal right altogether, full and permissive, and assume that I have inflicted harm upon my neighbor intentionally; has my neighbor a right of action? The answer in ethics is without doubt in the affirmative; and that too is the answer in law in many cases. But is it always so in law, or so generally that it 1 See remarks of Lord Watson in Allen v. Flood, 1898, A. C. i.

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can be laid down as a legal rule that to inflict harm intentionally creates civil liability, in the absence of any defense of right? An affirmative answer has been given.1 But if the case is to turn on logic, there is ground for doubt. The rule, it will be seen, would create liability though nothing wrongful was done beyond the intentional inflicting of harm. B inflicts harm upon A by telling him something which is true, with intent to harm him. For instance, after A has, by expense and effort, prepared himself to enter into partnership with C, according to C's desire, not yet consummated however by any con tract, B informs C truly that A has been in financial difficulties several times —- this B does to induce C to break off further negotia tion with A, and with intent to harm A; and succeeds in his purpose. It has been main tained that B is liable in damages to A;* the contrary too has been decided.3 To take the first view of the case is to say that a true representation made with intent to harm, and doing harm, is actionable; but that is contrary to the law of deceit. The rule in question, therefore, is not a logical rule to that extent; and it should be ob served that the law of deceit has a large and important place in the law of contracts as well as of torts. It cannot be said that there is a defense of "justification " to an action in such a case. "Justification" signifies that some particular fact is pleaded in defense of a suit, which fact, it may be, brings the case within a particular rule of law applicable to such cases. But the case in question is not one of the kind. B would not have to plead any fact to bring himself within the particular rule of law; he would demur; he would call 1 Plant v. Woods, 176 Mass. 492; Mogul Steam ship Co. v. McGregor, 23 Q. B. D. 598,6i3,Bowen, L.J, 5 May v. Wood, 173 Mass, n, in dissenting opinion of Holmes, C. J. See also Plant v. Woods, 176 Mass. 492. ' Rice v. Albee. 164 Mass. 88.