not spoken maliciously. (Crawford v. Middleton, 1 Lev. 82. And see Greenwood v. Prick, cited Cro. Jac. 91; ante, p. 6.) Now, however, absence of malice can only be given in evidence in mitigation of damages; and the question whether the defendant acted maliciously or not, should never be left to the jury, unless the occasion be privileged. (Haire v. Wilson, 9 B. & C. 643; 4 Man. & Ry. 605. Per Lord Denman in Baylis v. Lawrence, 11 A. & E. 924; 3 P. & D. 529; 4 Jur. 652. Per Parke, B., in O'Brien v. Clement, 15 M. & W. 437.) The defendant's intention or motive in using the words is immaterial, if he has in fact wrongfully injured the plaintiff's reputation. (Hooper v. Truscott, 2 Scott, 672; 2 Bing. N. C. 457; Godson v. Home, 1 Br. & B. 7; 3 Moore, 223; Morrison v. Ritchie & Co., (1902) 4 F. 645 (Ct. of Sess.), ante, p. 7.)

It is true that the word "malicious" is usually inserted in every definition of libel or slander, that the pleader invariably introduces it into every Statement of Claim, and that the older cases contain many dicta to the effect that "malice is the gist" of an action of libel or slander. But in all these cases the word "malice" is used in a special and technical sense; it denotes merely the absence of lawful excuse; in fact, to say that defamatory words are malicious in that sense means simply that they are unprivileged, not employed under circumstances which excuse them. But I have thought it best to drop this technical and fictitious use of the word altogether -a use which has been termed "unfortunate" by more than one learned judge. (Per Lord Bramwell, 11 App. Cas. 253; 55 L. J. Q. B. 460; 55 L. T. 65; per Stephen, J., 41 L. T. 590.) In this book the word "malice" is always used in the popular and ordinary sense of the word; i.e., to denote some spite or ill-feeling against the plaintiff, or some indirect and improper motive. This is called "express malice" or "actual malice" in our older books. Using the word in this sense, malice is not in issue in an action of defamation, till the defendant pleads privilege. As soon as the judge rules that the occasion is privileged, the plaintiff has to prove malice, but not before.

In the words of Lord Justice Brett: "When there has been a writing or a speaking of defamatory matter, and the judge has held -and it is for him to decide the question-that although the matter is defamatory the occasion on which it is either written or spoken is privileged, it is necessary to consider how, although the occasion is privileged, yet the defendant is not permitted to take advantage of the privilege. If the occasion is privileged it is so for some reason,

and the defendant is only entitled to the protection of the privilege if he uses the occasion for that reason. He is not entitled to the protection if he uses the occasion for some indirect and wrong motive. If he uses the occasion to gratify his anger or his malice, he uses the occasion not for the reason which makes the occasion privileged, but for an indirect and wrong motive. If the indirect and wrong motive suggested to take the defamatory matter out of the privilege is malice, then there are certain tests of malice. Malice does not mean malice in law, a term in pleading, but actual malice, that which is popularly called malice. If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing for some wrong motive. So if it be proved that out of anger, or for some other wrong motive, the defendant has stated as true that which he does not know to be true, and he has stated it whether it is true or not, recklessly, by reason of his anger or other motive, the jury may infer that he used the occasion, not for the reason which justifies it, but for the gratification of his anger or other indirect motive. The judgment of Bayley, J., in Bromage v. Prosser, 4 B. & C. at p. 255, treats of malice in law; and no doubt where the word 'maliciously' is used in a pleading, it means intentionally, wilfully. It has been decided that if the word 'maliciously' is omitted in a declaration for libel, and the words wrongfully' or 'falsely' substituted, it is sufficient, the reason being that the word 'maliciously,' as used in a pleading, has only a technical meaning; but here we are dealing with malice in fact, and malice then means a wrong feeling in a man's mind." (Clark v. Molyneux, 3 Q. B. D. 246, 247; 47 L. J. Q. B. 230; 26 W. R. 104; 37 L. T. 696, 697.)

Malice cannot be exhaustively defined. (Per Lord Esher, M.R., and Lopes, L.J., (1895) 2 Q. B., at pp. 38, 40.) But it may be described as any improper motive which induces the defendant to defame the plaintiff. "Any indirect motive, other than a sense of duty, is what the law calls malice.' (Per Lord Campbell, C.J., in Dickson v. Earl of Wilton, 1 F. & F., at p. 427.) "Malice means any corrupt motive, any wrong motive, or any departure from duty." (Per Erle, C.J., 2 F. & F., at p. 524.) "Acting maliciously means acting from a bad motive." (Per Parke, B., in Brook v. Rawl, 19 L. J. Ex., at p. 115.) If malice be

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proved, the privilege attaching to the occasion, unless it be absolute, is lost.

The onus of proving malice lies on the plaintiff; the defendant cannot be called on to prove that he did not act maliciously, till some evidence of malice, more than a mere scintilla, has been adduced by the plaintiff. (Taylor v. Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313; Cooke and another v. Wildes, 5 E. & B. 340; 24 L. J. Q. B. 367; Laughton v. Bishop of Sodor & Man, L. R. 4 P. C. 495; 42 L. J. P. C. 11; Clark v. Molyneux, 3 Q. B. D. 237; 47 L. J. Q. B. 230.) And such evidence must always go to prove that the defendant himself was actuated by malice against the plaintiff. "What must be shown is, that the defendant was malicious, and to show that his informants were malicious, is not evidence that he was malicious." (Per Lord Esher, M.R., in Hennessey v. Wright, 24 Q. B. D., at p. 447, n.) Thus, in an action against the publisher of a magazine, evidence that the editor or the author of any article, not being the defendant, had a spite against the plaintiff, is inadmissible. (Robertson v. Wylde, 2 Moo. & Rob. 101; Clark v. Newsam, 1 Exch. 131, 139; Carmichael v. Waterford Railway Co., 13 Ir. L. R. 313. So in America, York v. Pease, 2 Gray (68 Mass.), 282.) It has however been recently decided by the Judicial Committee of the Privy Council that a corporation may be rendered liable for words published on a privileged occasion, by proving malice in its servant who published them, provided the servant was acting within the scope of his employment. (Citizens' Life Assurance Co., Ltd. v. Brown, (1904) A. C. 423; 73 L. J. P. C. 102; 90 L. T. 739; 20 Times L. R. 497.)

On the other hand it is not necessary that the defendant should be actuated by any special feeling against the plaintiff in particular. He need not be even personally acquainted with him. If the defendant desires to injure A., and thinks that the safest method by which to attain that end is by defaming the plaintiff on a privileged occasion, that in law is malice

against the plaintiff; the defendant defames the plaintiff from an indirect motive, and thus abuses the privileged occasion. So if, from anger or gross and unreasoning prejudice with regard to a particular subject-matter, or against a particular trade or class, the defendant states what he does not know to be true, reckless whether it is true or false, this is malice which will destroy the privilege, although the defendant has no ill-will against the plaintiff as an individual. (Royal Aquarium, &c., Society, Ltd. v. Parkinson, (1892) 1 Q. B. 431; 61 L. J. Q. B. 409; 40 W. R. 450; 66 L. T. 513; 56 J. P. 404.)

Evidence of malice may either be extrinsic-as of previous ill-feeling or personal hostility between plaintiff and defendant, threats, rivalry, squabbles, other actions, former libels or slanders, &c.,or intrinsic-the violence of defendant's language, the mode and extent of its publication, &c. But in either case, if the evidence adduced is equally consistent with either the existence or non-existence of malice, the judge should stop the case; for there is nothing to rebut the presumption which has arisen in favour of the defendant from the privileged occasion. (Somerville v. Hawkins, 10 C. B. 590; 20 L. J. C. P. 131; 15 Jur. 450; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q. B. 308; 20 L. J. Q. B. 313; 15 Jur. 746.) Mere inadvertence or forgetfulness, or careless blundering, is no evidence of malice. (Brett v. Watson, 20 W. R. 723; Kershaw v. Bailey, 1 Exch. 743; 17 L. J. Ex. 129; Pater v. Baker, 3 C. B. 831; 16 L. J. C. P. 124.) Nor is negligence or want of sound judgment (Hesketh v. Brindle, (1888) 4 Times L. R. 199), or honest indignation (Shipley v. Todhunter, 7 C. & P. 690). That the words are strong is no evidence of malice, if on defendant's view of the facts strong words were justified. (Spill v. Maule, L. R. 4 Ex. 232; 38 L. J. Ex. 138; 17 W. R. 805; 20 L. T. 675.) That the statement was volunteered, if it was defendant's duty to volunteer it, is no evidence of malice. (Gardner v. Slade et ux., 13 Q. B. 796; 18 L. J. Q. B. 336.) That the statement is now admitted or proved

to be untrue is no evidence that it was made maliciously (Caulfield v. Whitworth, 16 W. R. 936; 18 L. T. 527); though proof that defendant knew it was untrue when he made it would be conclusive evidence of malice. (Fountain v. Boodle, 3 Q. B. 5; Clark v. Molyneux, 3 Q. B. D. 237; 47 L. J. Q. B. 230.) "If you want to show that a statement was malicious, it is not sufficient to show that it was not true." (Per North, J., in Hayward & Co. v. Hayward & Sons, 34 Ch. D., at p. 206; and see the observations of Williams, J., in Harris v. Thompson, 13 C. B., at p. 352.) If the defendant is in a position to prove the truth of his statement," he has no need of privilege: the only use of privilege is in cases where the truth of the statement cannot be proved." (Per Lord Coleridge, C.J., in Howe v. Jones, (1885) 1 Times L. R., at p. 462. This is so also in America; see Lewis and Herrick v. Chapman (Selden, J.), 2 Smith (16 N. Y. R.) 369; Vanderzee v. McGregor, 12 Wend. 546; Fowles v. Bowen, 3 Tiffany (30 N. Y. R.), 20.)

The question of malice or no malice is for the jury. But there is always the prior question: "Is there any evidence of malice to go to the jury?" and this is for the judge. The presumption in favour of the defendant arising from the privileged occasion remains till it is rebutted by evidence of malice; and evidence merely equivocal, that is, equally consistent with malice or bona fides, will do nothing towards rebutting the presumption; if, therefore, only such evidence be offered, the judge should direct judgment to be entered for the defendant. So, too, the judge should stop the case if there be no more than a scintilla of evidence of malice to go to the jury. But it is difficult to say beforehand what will be deemed a mere scintilla, what more than a scintilla, in any given case. "It is matter of law for the judge to determine whether the occasion of writing or speaking criminatory language, which would otherwise be actionable, repels the inference of malice; constituting what is called a privileged communication; and if, at the close of the plaintiff's case, there is no intrinsic or extrinsic evidence of malice, that it is the duty of the judge to direct a nonsuit or a verdict for the defendant, without leaving the question of malice to the jury. . . . Wherever there is evidence of malice, either extrinsic or intrinsic, in answer to the immunity claimed by reason of the occasion, a question arises