apprise." Cent. Dict. Thus when a person, I notice of quarantine and the giving of notice seeking credit, hands to a merchant a mate- to the proper officers of carriers doing business rially false written statement concerning his in any quarantined state, the words "make" financial condition, no matter who composed and "promulgate" are not synonymous, and and signed it, if it be one calculated to de- the duty to "make" rules was sufficiently ceive, and then reads it to such merchant, accomplished by writing them and signing and thereby obtains property from him on them officially, but to "promulgate" them recredit, he has obtained property on credit up- quired the giving notice thereof to the offion a materially false statement in writing | cers of carriers, etc., and their publication in "made to" such person. In re Aldrigde, 168 the selected newspapers within the affected Fed. 93, 98, 99. district. United States v. Louisville & N. R. Co., 165 Fed. 936, 939. Promulgate distinguished Sale The word "make," as used in Act Cong. March 3, 1905, c. 1496, § 3, which requires the Secretary of Agriculture to "make" and "promulgate" rules and regulations governing the method and manner of shipment, inspection, and delivery of cattle from quarantined territory, is not synonymous with "promulgate," v. Gilpin, 90 Pac. 267, 271, 75 Kan. 773. and means only the writing and official signing of such rules; the "promulgation" of them requiring notice to the officers of transportation companies, etc., and their publication in the selected newspapers within the affected district. United States v. Louisville & N. R. Co., 165 Fed. 936, 939. The words "to sell" or "to make a sale," as used in a communication from the owner of real estate to a broker with respect to the sale thereof, are often used as meaning to negotiate or arrange for a sale. Brown Quarrel Signature Under a statute making a writing, not signed in the presence of witnesses, invalid as a will, unless testatrix acknowledged the "making thereof," the phrase quoted refers to the making of the signature in the presence of the witnesses. Manners v. Manners, 66 Atl. 583, 584, 72 N. J. Eq. 854. MAKER Of note See Accommodation Maker; Comaker; In a trial for murder, the court instructed that it is the duty of one engaged in a quarrel to avoid an attack, and not to become the aggressor, unless other means are unavailable, and that if defendant, after being engaged in a quarrel with deceased, descended to the street, knowing that deceased was in the street, with intent to continue the quarrel, and in order to make "his quar-signs his name on the back of it in blank, is rel effective," took with him a dangerous weapon, and sought out deceased, and stabbed him, his action was not justifiable homicide, though deceased drew a revolver, was not erroneous, whether the phrase "making the quarrel effective" meant that defendant took the weapon with intent to take the life of deceased, or meant, if defendant renewed the quarrel, whether with or without intent to take life, the killing was not justifiable. People v. Filippelli, 66 N. E. 402, 405, 173 N. Y. 509. Record Where a clerk of a Circuit Court makes and certifies a record in response to a writ of error or appeal, he is not merely making a transcript or copy, but is "making a record." within Rev. St. § 828, providing that a clerk of the Circuit Court shall be entitled for making a record to 15 cents a folio. Hoysradt v. Delaware, L. & W. R. R., 182 Fed. 880, 882. Rule In Act Cong. March 3, 1905, c. 1496, § 3, requiring the Secretary of Agriculture to "make" and "promulgate" rules governing the inspection, delivery, and shipment of cattle from a quarantined state into any other state, and section 1 requiring publication of prima facie a 'maker,' and assumes the same obligation as if he wrote his name upon the face of the instrument." Lyndon Savings Bank v. International Co., 62 Atl. 50, 52, 78 Vt. 169, 112 Am. St. Rep. 900 (quoting and adopting definition in Lyndon Savings Bank V. International Co., 54 Atl. 191, 75 Vt. 224). Where a note reciting, "I promise to pay," was signed on the face by two persons, they were both "makers." Ullery v. Brohm, 79 Pac. 180, 20 Colo. App. 389. The transferror of a nonnegotiable written contract does not, by signing his name on the back of it, make himself liable as "maker," "guarantor," or "indorser," within Rem. & Bal. Code, § 6250, providing that the discounting of commercial paper, where the borrower makes himself liable as maker, guarantor, or indorser, shall be considered as a loan for the purpose of the chapter relating to usury. Thomson v. Koch, 113 Pac. 1110, 1111, 62 Wash. 438. MAKING "Making" is defined as the action of one who makes. Town of Checotah v. Town of Eufaula, 119 Pac. 1014, 1017, 31 Okl. 85. MAKING SALES See Salesmen Making Sales. MAL See Petit Mal. MALA FIDE PURCHASER MALE MALE HEIRS See Heirs Male. "A person who purchases an estate, although for a valuable consideration, with no- MALFEASANCE tice of a prior equitable right, makes himself a 'mala fide purchaser,' and will himself even be held a trustee for the benefit of the person whose right he sought to defeat." Mansfield v. Wardlow (Tex.) 91 S. W. 859, 863 (citing Pom. Eq. Jur. § 659). MALA IN SE See Contracts Mala In Se. A distinction is made between acts which are "mala in se," which are generally regarded as absolutely void, in the sense that no right or claim can be derived from them, and acts which are mala prohibita, which are void or voidable, according to the nature or effect of the act prohibited. Petterson v. Berry, 125 Feu. 902, 906, 60 C. C. A. 610 (citing Ewell v. Daggs, 2 Sup. Ct. 408, 108 U. S. 143, 27 L. Ed. 682); In re T. H. Bunch Co., 180 Fed. 519, 527. MALA PROHIBITA See Mala in Se. MALADMINISTRATION "Malfeasance' is the unjust performance of some act which the party had no right, or which he had contracted not to do." Dudley V. Flemingsburg, 72 S. W. 327, 115 Ky. 5, 60 L. R. A. 575, 103 Am. St. Rep. 253, 1 Ann. Cas. 958. "Malfeasance" is the doing of an act which a person ought not to do at all. Where an officer either through ignorance, inattention, or malice does that which he has no legal right to do at all, or acts without any authority whatever, or exceeds, ignores, or abuses his powers, he is guilty of "malfeasance." State, to Use of Cardin, v. McClellan, 85 S. W. 267, 268, 113 Tenn. 616, 3 Ann. Cas. 992. The taking of the property of one, by a coroner, on a writ against another, is a "malfeasance in office," constituting a breach of his bond given for "the faithful performance of the duties of his office." Harris v. Hanson, 11 Me. 241, 245. Permission by a sheriff to a prisoner to escape is "malfeasance," within Kirby's Dig. As applied to public officers, "maladmin-87993, providing for removal of county ofistration" is not in ordinary use distinguish-ficers on conviction of an offense amounting to malfeasance. Houpt v. State, 140 S. W. 294, 297, 100 Ark. 409, Ann. Cas. 1913C, 690. V. ed from misadministration. Territory Sanches, 94 Pac. 954, 956, 14 N. M. 493, 20 Ann. Cas. 109. MALCONDUCT The reception of illegal votes at an election for a public office is not "malconduct" on the part of the election officers, within Code Civ. Proc. § 2010, authorizing an elector to contest an election for malconduct on the part of the judges of election, but constitutes a separate ground for contest under the express provisions of the section. Coleman v. Kerr, 83 Pac. 393, 394, 33 Mont. 198. An officer who violates his public obligation, and betrays his trust by selling his official influence or vote, is guilty of "malconduct in office." Etzler v. Brown, 50 South. 416, 417, 58 Fla. 221, 138 Am. St. Rep. 113. MALARIA "Malaria” is "a morbid condition produced by exhalations from decaying vegetable matter in contact with moisture, giving rise to fever and ague and many other symptoms characterized by their tendency to recur at definite and usually uniform intervals." City of St. Louis v. Galt, 77 S. W. 876, 879, 179 Mo. 8, 63 L. R. A. 778 (quoting Webster Dict.). While to convict an officer of the felony denounced by Comp. Laws 1907, § 4083, punishing every person who with intent to defraud, presents for allowance and payment a fraudulent claim, the proof must show that he presented the claim with intent to defraud, yet such proof is not essential to sustain a conviction for malfeasance in a proceeding for his removal under section 4565; the term "malfeasance" meaning the commission of an act which is positively unlawful. Law v. Smith, 98 Pac. 300, 307, 34 Utah, 394. "While 'malfeasance in office' is defined generally to be the wrongful or unjust doing of some official act, which the doer has no right to perform, or which he has stipulated by contract not to do, it is essential that an evil intent or motive must accompany the act, or that it must have been done with such gross negligence as to be equivalent to fraud." An indictment of a county clerk for unlawfully issuing a license to sell liquor in a local option precinct, which fails to aver that his action was from a corrupt motive or fraudulent, or that he knew at the time that it was unlawful for him to issue the license, is insufficient. Commonwealth v. Wood, 76 S. W. 842, 843, 116 Ky. 748 (citing Bishop's New Cr. Law, §§ 972, 834). "Malfeasance" is the doing of an act which is positively unlawful or wrongful which one ought not to do at all. It is an act wholly wrongful and unlawful. It is said that misconception of one's rights affords no ground for a conclusion of malfeasance. It is not malfeasance in office, for which, under Highway Law, N. Y. (Consol. Laws 1909, c. 25) § 30, a county superintendent of highways may be removed by the county supervisors, that he presents to a town, and has paid, a personal bill for preparing, under employment by it, plans and specifications for an avenue therein, the work on which was done by his private employés in his business of civil engineer, as not only under sections 33, 48, relative to his duties, is the county superintendent under no absolute duty to do such work, but, even if he cannot legally present a claim against the town, such action would be wrongful to the town only, whereas the malfeasance justifying his removal must be such as affects his performance as county superintendent, and he having at most misconceived his rights, in supposing there was no legal objection to his rendition of the account, which affords no ground for a conclusion of malfeasance. People ex rel. Seaman v. Cocks, 134 N. Y. Supp. 808, 810, 149 App. Div. 883 (citing Cent. Dict.; Bell v. Josselyn, 3 Gray [69 Mass.] 309, 63 Am. Dec. 741; Coite v. Lynes, 33 Conn. 109; Stokes v. Stokes, 48 N. Y. Supp. 722, 23 App. Div. 558). Nonfeasance distinguished "There is a distinction between nonfeasance and misfeasance or malfeasance; and this distinction is often of great importance in determining an agent's liability to third persons. In this connection, 'nonfeasance' means the total omission or failure of an agent to enter upon the performance of some distinct duty or undertaking, which he has agreed with his principal to do. 'Misfea sance' means the improper doing of an act which the agent might lawfully do, or, in other words, it is the performing of his duty to his principal in such a manner as to infringe upon the rights and privileges of third persons; and 'malfeasance' is the doing of an act which he ought not to do at all. It is not every omission or failure to perform a duty that will constitute a nonfeasance, but only an omission to perform such distinct duties as he owes to his principal, as distinguished from those which he owes to third persons, or the public in general as a member of society. Nonfeasance does not extend to the omission or failure to do some act, whereby a third person is injured after he has once entered upon the performance of his contractual obligations. For example, if an agent undertakes to perform certain acts for another, and he refuses or fails to enter upon such performance, it is nonfeasance; but if he once begins the performance of such acts, and in doing so fails or omits to do certain acts which he should have done, whereby a third person is injured, it is not a nonfeasance, but a misfeasance. Misfeasance may involve the omission to do something which ought to be done, as where an agent engaged in the performance of his undertaking, omits to do something which it is his duty to do under the circumstances, as when he does not exercise that degree of care which due regard for the rights of others requires." Orcutt v. Century Bldg. Co., 99 S. W. 1062, 1068, 201 Mo. 424, 8 L. R. A. (N. S.) 929 (quoting and adopting definition in Clark & Skyles, Law of Agency, § 596). MALICE See Constructive Malice; Express Mal- Absence of, see Voluntary Manslaughter. As known to the law, "malice" is a wrongful act done intentionally, without just cause or excuse. Leavell v. Leavell, 99 S. W. 460, 461, 122 Mo. App. 654; Hathaway v. Commonwealth (Ky.) 82 S. W. 400, 402; Connell v. State, 81 S. W. 746, 747, 46 Tex. Cr. R. 259; London Guarantee & Accident Co. v. Horn, 69 N. E. 526, 530, 206 Ill. 493, 99 Am. St. Rep. 185; Schonwald v. Ragains, 122 Pac. 203, 211, 32 Okl. 223, 39 L. R. A. (N. S.) 854; McFadden v. Lane, 60 Atl. 365, 367, 71 N. J. Law, 624. "Malice" is not necessarily personal hate or ill will, but is a state of mind which is reckless of law and the legal rights of citizens. Bowles v. Lowery, 59 South. 696, 697, 5 Ala. App. 555. understood, mean spite or ill will, but means "Malice" in law does not, as is generally the intentional doing of a wrongful act. liams v. Williams, 111 S. W. 837, 838, 132 Mo. App. 266. Wil An instruction defining "malice" as the doing of a wrongful act intentionally is correct. Butcher v. Hoffman, 73 S. W. 266, 268, 99 Mo. App. 239. ""Malice' has always been divided into two kinds: Implied malice, or malice in law, and express malice, or malice in fact." Lauder v. Jones, 101 N. W. 907, 915, 13 N. D. 525 (quoting and adopting Gambrill v. Schooley, 52 Atl. 500, 508, 95 Md. 260, 63 L. R. A. 427). "Malice" is not necessarily personal hate, but is rather an intent and disposition to do a wrongful act greatly injurious to another. Chicago, R. I. & P. Ry. Co. v. Whitten, 119 S. W. 835, 837, 90 Ark. 462, 21 Ann. Cas. 726. "Malice" comprehends ill will, a wickedness of disposition, cruelty, recklessness, a "Malice" is the expression of a wicked and depraved heart and mind and of a cruel disposition. State v. Harmon (Del.) 60 Atl. 866-868, 4 Pennewill, 580. mind regardless of social duty. Brett v. |fication or excuse. A "wrongful act," within State, 47 South. 781, 783, 94 Miss. 669. the meaning of this definition, is any act which, in the ordinary course, will infringe upon the rights of another to his damage, except it be done in the exercise of an equal or superior right. Brennan v. United Hatters of North America, Local No. 17, 65 Atl. 165, 171, 73 N. J. Law, 729, 9 L. R. A. (N. S.) 254, 118 Am. St. Rep. 727, 9 Ann. Cas. 698. "Legal malice" is defined as an act growing out of the wicked or mischievous intention of the mind; an act showing a wanton inclination to mischief, an intention to injure or wrong, and a depraved inclination to disregard the rights of others. Morasca Item Co., 52 South. 565, 566, 126 La. 426, 30 L. R. A. (N. S.) 315. V. "Malice" in a trespass need not be ill will or hatred; it being sufficient that the trespass be intentional and in known violation of the owner's rights. Southern Ry. Co. v. McEntire, 53 South. 158, 159, 169 Ala. 42. "Malice" implies wickedness, or the willful and intentional doing of a wrongful act, without just cause or excuse, and is implied from an unlawful act, willfully done, till the contrary is shown. State v. Murphy, 68 S. E. 570, 86 S. C. 268. "Malice" is implied by law from every deliberate cruel act committed by one person against another, no matter how sudden such an act may be, as the law construes that he who does a cruel act voluntarily does it maliciously. State v. Mills (Del.) 69 Atl. 841, 842, 6 Pennewill, 497. Hatred, ill will, or actual malice towards the injured party is not a necessary ingredient of legal malice as applied to torts, nor is it necessary that the act complained of proceed from a spiteful, malignant, or revengeful disposition. If it be wrongful, unlawful, and intentional, and the natural and probable result of the act is to accomplish the injury complained of, "malice" is implied. Flandermeyer v. Cooper, 98 N. E. 102, 108, 85 Ohio St. 327, 40 L. R. A. (N. S.) 360, Ann. Cas. 1913A, 983. "Legal or implied malice," as distinguished from ill will or malice in the vernacular sense of the word, is defined to be the intentional doing of a wrong act without just cause or excuse. Ickenroth v. St. Louis Transit Co., 77 S. W. 162, 166, 102 Mo. App. 597. Where the court charged that "malice" meant wickedness, and that, when a man did a thing with a malicious heart, it meant a heart devoid of social duty and fatally bent on mischief, a charge defining malice as the willful and intentional doing of a wrongful act by one knowing the act to be against the law, and by one doing it willfully, was not objectionable as insufficiently defining "malice." State v. Crosby, 70 S. E. 440, 442, 88 S. C. 98. "In 5 Words and Phrases, p. 4298, 'mal ice' is defined as follows: 'Malice, 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.' Bouvier defines malice as being: ster defines the word to mean: 'Extreme en'A wicked intention to do an injury.' Webmity of heart; malevolence; a disposition to injure others without cause, from mere personal gratification, or from a spirit of revenge,' etc." Lynch v. People, 137 Ill. App. 444, 446. In general a malicious act involves all that is usually understood by the term “willful," and is further marked by either hatred or ill will toward the party injured or by such utter recklessnss and disregard of the rights of others as denotes a corrupt or malevolent disposition. It is true that "malice" may be and is often implied or presumed from the willfulness of the wrongful act. State v. Willing, 105 N. W. 355, 356, 129 Iowa, 72. "Lawful competition that may injure the business of another, even though successfully directed to driving that other out of business, is not actionable. Nor would competition of one set of men against another set, carried on for the purpose of gain, even to the extent of intending to drive from business that other set, and actually accomplishing that result, be actionable unless there was actual malice. 'Malice,' as here used, does not merely mean intent to harm, but means an intent to do a wrongful harm and injury. An intent to do a wrongful harm and injury is unlawful, and, if a wrongful act is done to the detriment of the right of another, it is malicious, and an act maliciously done with the intent and purpose of injuring another is not lawful competition." O'Brien v. People ex rel. Kellogg Switchboard & Supply Co., 75 N. E. 108, 115, 216 Ill. 354, 108 Am. St. Rep. 219, 3 Ann. Cas. 966 (quoting and adopting definition in Doremus v. Hennessy, 52 N. E. 924, 925, 176 Ill. 608, 43 L. R. A. 797, 68 Am. St. Rep. 203); Everett Waddey Co. v. Richmond Typographical Union No. 90, 53 S. E. 273, 276, 105 Va. 188, 5 L. R. A. (N. S.) 792, 8 Ann. Cas. 798. Whatever is done willfully and purposely, whether the motive is to injure accused, to gain some advantage to prosecutor, or "Malice," in the law, means the inten- through mere wantonness or carelessness, if tional doing of a wrongful act without justi- 'at the same time wrong or unlawful within the knowledge of the actor, is done malicious-, which shows a spirit lacking in proper rely, and personal ill will or desire for revenge gard for social duty and the rights of others, is not essential to the existence of "malice." even when said or done without particular Gulsby v. Louisville & N. R. Co., 52 South. ill will. Israel v. Israel, 84 S. W. 453, 456, 392, 394, 167 Ala. 122. 109 Mo. App. 366. "Malice," in legal proceedings, does not necessarily mean personal ill will or spite. It means a wrongful act done intentionally without just cause or excuse. Pittsburg, J., E. & E. R. Co. v. Wakefield Hardware Co., 50 S. E. 571, 573, 138 N. C. 174, 3 Ann. Cas. 720. In an action of tort, an instruction defining "malice" as "the doing of any act" injurious to another without just cause is erroneous for omitting the word "intentional" before the word "doing." Hanley v. Blandino (Tex.) 89 S. W. 1108, 1109. To make the conduct of a fraternal as An instruction, defining legal "malice" association, in expelling a member, actionably where a party has ill will toward another, bad feeling, bad blood, something of that kind, held proper. State v. Reeder, 51 S. E. 702, 703, 72 S. C. 223. The term "malice," in its ordinary sense, implies hatred, spite, or ill will; but in legal parlance it is frequently used in a different sense, depending on the connection, and may mean "a wrongful act done intentionally without just cause or excuse." In legal parlance, malice "may be actually implied whenever there is a deliberate intention to do a grievous wrong without legal justification or excuse. In civil controversies, the very essence of malice is a disposition or willfulness to do a wrongful act greatly injurious to another." Kavanaugh v. McIntyre, 112 N. Y. S. 987, 990, 128 App. Div. 722 (quoting 5 Words and Phrases, p. 4298 et seq.). Any malice which is an ingredient in a tort consisting of an act the direct object of which is to injure another's property is malice in law; that is, the intent to injure, as distinguished from the intent to do an act which may incidentally injure. Albro J. Newton Co. v. Erickson, 126 N. Y. Supp. 949, 953, 70 Misc. Rep. 291. "Malice" 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. McGurk v. Cronenwett, 85 N. E. 576, 577, 199 Mass. 457, 19 L. R. A. (N. S.) 561. The term "malice," as used in Hurd's Rev. St. 1905, c. 72, § 2, authorizing the discharge of persons arrested in civil actions except when "malice" is of the gist of the action, signifies a wrong inflicted on another with an evil intent or purpose. Kellar, Ettinger & Fink v. Norton, 81 N. E. 1037, 1038, 228 Ill. 356. malicious it is not necessary that "malice" in the sense of hatred or ill will, on the part of the defendant toward appellant, be shown. "Malice" in such case would be sufficiently shown if it were proven that they acted knowingly and willfully in the violation of the rights of appellant and to his injury. Thompson v. Grand International Brotherhood of Locomotive Engineers, 91 S. W. 834, 839, 41 Tex. Civ. App. 176. "Malice," as usually understood, has its foundation in ill will, and is evidenced by an attempt wrongfully to vex, injure, or annoy another. This is "malice in fact," and is that referred to in Pen. Code, § 7, subd. 4, declaring that the words "malice" and "maliciously" import a wish to vex, annoy, or injure another person. There is another sort of malice, the presumption of the existence of which is raised by the law in certain cases on certain proofs, and this is the malice described in the same section as "an intent to do a wrongful act, established either by proof or presumption of law." This is a malice of pleading and proof made necessary by the exigencies of definitions of offenses against the law, and may exist with malice in fact, but may also exist independent thereof, and against a defendant, while in others the prein some instances is conclusively presumed sumption is rebuttable. Davis v. Hearst, 116 Pac. 530, 537, 160 Cal. 143. As justifying punitive damages Legal malice, as distinguished from actual malice, will justify an award of punitive damages. The "malice" which would justify an award of punitive damages merely implies the intentional doing of a wrongful act without just cause or excuse. Lampert v. Judge & Dolph Drug Co., 141 S. W. 1095, 1098, 238 Mo. 409, 37 L. R. A. (N. S.) 533, Ann. Cas. passion 1913A, 351. State v. "Malice" excludes passion, and presupposes the absence of malice. Edmunds, 104 N. W. 1115, 1116, 20 S. D. 135. "By 'malice' or 'malicious' is meant a wish or desire to vex, harass, or annoy another." Kerley v. Germscheid, 106 N. W. 136, 137, 20 S. D. 363. "Malice" arises from the voluntary doing or saying something without just cause or excuse, which is likely to injure another, and "Malice" essential to justify punitive damages does not mean ill will against a person, but a wrongful act done intentionally and without just cause is done with malice. McMillen v. Elder, 140 S. W. 917, 919, 160 Mo. App. 399. Exemplary damages are allowed in enhancement merely of ordinary damages, the propriety of allowing the same depending en |