THEORY AND DOCTRINE OF TORT servant, it is necessary to prove that B knew of the existence of the relation. Then, with such knowledge, interrupting the rela tion, it has been usual in the past, to say that he did it "maliciously." It is plain, however, that may not have been the case in the sense either that he did it with an evil motive or in reckless, wanton, or heedless disregard of rights. It is plain that malice in the fourth sense is quite emptied of its natural meaning, and that to use the word in that sense is confusing and misleading. Accordingly, it is now considered by careful judges that the custom of calling such a case malice, should be dropped — in other words, it is now held that to procure a breach of contract-relation is actionable without proving malice.1 Proving knowledge of the relation is simply proving the existence of a legal duty — that is, knowledge of danger to the plaintiff's rights. It has been noted above that malice (as motive or the like) has in regard to some cases been thought to be an exception to general doctrines of law, in that in regard to those cases it is supposed to overturn legal right. The law of malicious prosecution has been particularly pointed to as an instance of such- exception. But, laying aside the suggestion that the dominating energy may determine for itself what is legal right, and what will defeat legal right, if the remarks before made in regard to permissive right are well founded it is clear that malicious prose cution falls into line with general principle. A few words will make the matter clear. The term is only a title; the wrong for which an action lies is a malicious prosecu tion begun without reasonable or probable cause. These facts (with proof of the termination of the prosecution) must be proved by the plaintiff. Now, a man can have no legal right, in the sense of full legal right, to prosecute another without cause; 1 South Wales Miners' Federation v. Glamorgan Coal Co. 1905, A. C. 239. In this case Lord Lindley expressly refrains from using the word "malice " because of its ambiguity. .
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but a man is permitted to do so, which is all there is of it. The person so prosecuting is merely exempt from liability — that men may not be discouraged from resorting to the courts to settle their disputes. That the matter does not rise higher than permissive right may readily be shown. Suppose that by fraudulent misrepresenta tion, whether by the person intended to be prosecuted or by another, a civil prosecu tion, without reasonable or probable cause, is put off until it is barred by the statute of limitations; could an action be maintained for the fraud? Clearly not, for as there was no ground for the intended prosecution there could be no violation of right in causing it to be put off — the intended prosecutor had no legal right in the matter. That the prosecutor in a civil case may be mulcted in costs, as in early times the prosecutor in a criminal case could be,1 shows the same fact. It is lawful, in the sense that it is permitted, to prosecute without cause; the permission is on the footing that prosecu tion shall be in good faith. Proof of malice in fact, in either the first or second sense, shows that the prosecution was not so begun. The action for slander of title is another case of the kind. This is an action for false and malicious disparagement of prop erty. False and disparaging statements of property are permitted;2 B may falsely declare that A has no title to a certain piece of land claimed by A, or make other false statements concerning A's property — no action could be maintained against him for doing so. But that is not because B had full legal right to do such a thing; the law simply permits. B could not maintain an action against one who, by using wrongful measures, prevented him from doing the thing, as by tearing up notices or hand bills making the false statements. But B 1 In early times the false prosecutor in all cases was "in mercy." 2 Gott v. Pulsifer, 122 Mass. 235, 238; Wren v. Weild, L. R. 4 Q. B. 730; Halsey v. Brotherhood, 19 Ch. D. 386.
