Malice in Law and in Fact
![handle is hein.journals/canlawtt18 and id is 159 raw text is: MALICE IN LAW AND IN FACT.
MALICE IN LAW AND IN FACT.
No two words in legal phraseology are more difficult to.
define than Malice and Fraud ; and none have been
the subjects of wider divergence of opinion, among the pro-
fession, as to their proper weight as determining factors in
actions of tort and contract. The Master of the Rolls, Lord
Esher, once said: We have been invited to define malice.
One cannot do so any more than one can define fraud, and
I pmrtainly sh1all not, Abnampt it. £E-my on knuoWs What in,
meant by a man acfing maliciously. The only recognized
tribunal that can decide whether an act is or is not malicious
is a jury.
ir. Justice Hawkins' words, in a recent case, are much
to the same effect: -In legal acceptation the terms
'malice' and ' maliciously' comprise so many wrongful mo-
tives and acts, the cases lcearing upon them are so numer-
ous, and the pleaders, both ancient and modern, so far as
they exist, have been in the habit, out of extreme caution,
of grouping them with such a host of other expletives, that
one deyixves huIt fll N-~a~ iimom-Aionfmx ITA te re
use of the terms as to the sense in which they are employed.
Notwithstanding the misgivings of these eminent jurists
as to their inability properly to define ti ew,countlessJudges
in all countries, wherever the principles of the common law
of England are recognized, are daily expounding the various
shades of meaning which attach to these terms in the in-
finite variety of cases that come before them. ]1ow great the
need then for the legal practitioner to have well fixed in his
mind the distinction between legal malice or implied
malice, and actual malice or malice in fact, and the
&ifferent effec ,t tile absoece of the one or the othlx ha% in
determining whether an act does or does not constitute a
cause of action.
Malice in fact in its popular sense means spite, ill-will,
malevolence. Malice in law, or implied malice, is wrongful
conduct which violates a right. Legal malice does not neces-
sarily impute malevolence. The best definition of malice.](ViewImageLocal?handle=hein.journals/canlawtt18&div=34&collection=&method=preview&ext=.png&size=3)
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Malice in Law and in Fact
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