"Mal

against individuals, but consists in a conscious violation of the law to the prejudice of another." ice," says another learned Judge,' "in common acceptation, means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause of excuse. If I maim cattle without knowing whose they are; if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do it of malice, because it is intentional, and without just cause or excuse. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces?" "If a person writes defamatory matter of another," says Bramwell, B., "however honestly he may believe it to be true, if it be in fact. untrue, the law implies malice." And "the law implies malice from the publication of a libel, except where the occasion justifies the publication." And a man may wilfully publish a mischievous libel without intent to injure the party, and may yet be responsible."

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By the Scotch law, it is not necessary, in the case of a civil action for libel, that malice should be either proved or presumed; but it is necessary in the case of

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1 Bayley, J., in Bromage v. Prosser, 4 B. & C. 255.

2 Darby v. Ousley, I H. & N. 9; 25 L. J. 330, Ex.

a criminal proceeding. "In general," says Hume, “the criminal is herein distinguished from the civil process; that to warrant the inflicting of any punishment the animus injuriandi, or special malice of the act, must be shown; whereas mere petulance or indiscretion may be the just ground of an award for the reparation of damage, though the parties are not even known to each other, if the things said are naturally and in themselves of an injurious tendency."

The whole publication, however, is to be looked at; and if the jury think that the effect of one part of it, which if taken alone would be injurious to the plaintiff's character, is removed by the other part of it, they should find for the defendant. The jury will take the whole together and say whether the result of the whole is calculated to injure the plaintiff's character; if, in one part of the publication, something disreputable to the plaintiff is stated, but is removed by the conclusion, the bane and antidote must be taken together.

This presumption of malice can sometimes be overturned by proof of belief, such as we have already considered. Evidence of recantation of a libel, also, will be evidence to overburden such presumption.

"Malice: the doing any act without a just cause."3 Malice in its legal sense always excludes a just cause.* It is a technical expression, and means the absence of any excuse; and is implied in every [wrongful] act for which there is no legal justification, excuse, or extenuation. Malice is the deliberate disregard of the

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1 Chalmers v. Payne, 2 C. M. & R. 156; 5 Tyrw. 66.

2 Id.

* Penn v. Honeyman, Id. 149; Bromage v. Prosser, 4 B. &

rights of others;' the doing of any act injurious to another without just cause.?

In criminal law and general practice, malice signifies a wickedness of purpose; a spiteful or malevolent design against another; a settled purpose to injure or destroy another. Any formed or evil disposition or design of doing mischiefs General wickedness of heart; inhuman or reckless disregard of the lives or safety of others; as when one coolly discharges a gun, or throws any dangerous missile among a multitude of people, or strikes, even upon provocation, with a weapon that must produce death. Deliberate disregard of the rights of others, as when one carries on the trade of melting tallow, to the annoyance of the neighboring dwellings. All these will constitute malice.

Malice, again, will be either express, or implied from the circumstances given to the jury. Or, it has again been divided into legal malice or malice in law, and actual malice or malice in fact. This latter distinction, however, is not in the malice itself, but rather in the evidence by which it is established. "If the charge complained of is injurious, and no justifiable motive for making it is apparent, malice is inferred from the falsity of the charge. The law,

C. 247; I Russ. Cr. 483; 1 Starkie on Libel, 3, 213; Bouvier's

Law Dict. tit. Malice. See York's Case, 9 Metc. 93; Darry v. People, 10 N. Y. 122; Mitchell v. Jenkins, 5 B. & A. 500; Hilliard on Torts, ch. vii. § 106.

1 Per Abbott, Ch. J., 3 B. & C. 584.

2 Id. And see Townshend on Slander & Libel, notes to pp. 122, et seq., where numerous definitions of malice are collected.

3 Hale's P. C. 455; 2 Stra. 766; 4 Bl. Com. 198; 2 Roll. R. 461.

4 Bl. Com. 199.

3 B. & C. 584.

in such cases, does not impute malice not appearing in fact, but presumes a malicious motive for making a false and injurious charge, if no innocent motive appears. If, from the circumstances, however, the defendant may be reasonably supposed to have had a worthy motive for making the charge, the law ceases to infer malice from the mere falsity of the charge, and requires from the plaintiff other proof of its existence. It is actual malice in either case, only the proof is different.”1 "The jury may infer malice from want of probable cause, but they are not bound to make this inference. And if malice is deduced from want of probable cause, it is as much malice in fact, within the meaning of the law, as though shown or deduced from any other fact or facts."

70. The various decisions upon the subject of defamation may seem finical, over-nice, and even ludicrous to the layman; and many, perhaps a majority of them, may be such as would no longer govern. But the principles controlling them are still law, and it is matter of marvel that in the reported cases the old judges were able to look beyond the annoyance of the petty, trivial, and absurd details which encumbered them, and lay down rules with a reasoning so clear and forcible, that from their conclusions, even to-day, there can be no escape.

71. Words which sound in disability only, are not actionable, unless spoken of one who gains his livelihood by that thing, profession, or business wherein the words disable him.3) "An action," it has been said,

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1 Selden, J., Lewis v. Chapman, 16 N. Y. 372.

2 Smith v. Howard, 28. Iowa, 51. And see the brief of Nicholas Hill, in Darry v. People, 10 N. Y. 123, which cites a large number of authorities.

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✓ Bill v. Neal, 1 Lev. 52. Vid. How v. Prin, Holt, 652; 3 Salk. 694.

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"lies for speaking scandalous words of any man of any trade or profession, be it never so base, if they are spoken with reference to his profession." Thus it has been held actionable to say of a servant in husbandry and bailiff, "Thou art a cozening knave, and hast cozened thy master of a bushel of barley;"2 or of a tradesman, “Thou art a rogue, and thou hast cheated me of several pounds;" of a person carrying on the business of a butcher, that she had used false weights in her trade; of a cornseller, "You are a rogue and a swindling rascal; you delivered me one hundred bushels of oats, worse by sixpence a bushel, than I bargained for;" of an auctioneer and appraiser, employed by the defendant to value certain goods, "He is a damned rascal; he has cheated me out of a hundred pounds on the valuation;"" of an asphalte manufacturer, “The old materials have been relaid by your company in the asphalte work executed in front of the ordinance office, and I have seen the work done;" innuendo, that the plaintiff "had been guilty of dishonesty in the conduct of his said trade, by laying down again the old asphalte materials which had before been used at the entrance of the said ordinance office instead of new asphalte, according to his contract;"" or of a certificated master mariner, that 'during his stay at N. he was frequently drunk, and in that state had to be carried to his boat to reach his vessel, &c." So it was held slanderous to say of a

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Terry v. Hooper, Lev. 115. Seaman v. Bigg, Cro. Car. 480. Surman v. Shelleto, Burr. 1688. * Griffith v. Lewis, 7 Q. B. 61. Thomas v. Jackson, 3 Bing. 104. 'Bryant v. Loxton, 4 Moore, 344.

* Baboneau v. Farrell, 13 C. B. 360.

Irwin v. Brandwood, 2 H. & C. 960; 9 L. T. N. S. 772; 33