KAY, L. JJ.,) being of opinion that the cause ought to have been heard out, discharged that judgment and ordered a new trial, (1894) 3 Ch. 276, 63 L. J. Ch. 666.

Feb. 11, 12. Swinfen Eady, Q. C., and Charles Macnaghten for the appellant:

1

To maintain an action for slander of goods the plaintiff must prove three things: (1) that the statement is disparaging to the plaintiff's goods; (2) that it is false; (3) that it has caused special damage to the plaintiff. None of these things were proved. The defendant's label was a mere trading puff and would be so regarded by the purchasing public. Even if * disparaging [* 156] the statement was not false; whether one trader's goods are the best or better than another's is a matter of opinion, not of fact. Lastly, no special damage was proved to have happened or to be likely to happen. In Evans v. Harlow, 5 Q. B. 624, 13 L. J. Q. B. 120, there were express and strong words of disparagement of the plaintiff's goods, but as no special damage was alleged the declaration was held bad. In Western Counties Manure Company v. Lawes Chemical Manure Company, L. R., 9 Ex. 218, 43 L. J. Ex. 171, special damage was alleged and the declaration was held good. Thomas v. Williams, 14 Ch. D. 864, 49 L. J. Ch. 605, and Ratcliffe v. Evans (1892), 2 Q. B. 524, 61 L. J. Q. B. 535, are inapplicable. The former was a case of a man passing off his own goods as those of another, and the latter was, to use the words of BOWEN, L. J. (1892, 2 Q. B., at p. 527), an action on the case for damage wilfully and intentionally done without just occasion or excuse. See also Comyn's Digest, Action upon the Case for Defamation, G. 11.

"

Moulton, Q. C., and A. àB. Terrell for the respondent:

The defendant not having called witnesses the plaintiff's evidence was uncontradicted and must be taken to be true, namely, that the defendant's food was inferior to the plaintiff's for the purpose for which it was sold. The words which were manifestly disparaging were therefore shown to be false. It is not a case of damages, but of injunction, and if there is a reasonable probability of damage, even without actual damage, an injunction will be granted. The three necessary conditions which entitle a plaintiff to an injunction restraining a libel are, (1) that there is a statement unequivocally relating to the plaintiff or his goods; (2) the statement must be false; and (3) injurious, that is

actually or probably productive of injury. To obtain an injunction it is not necessary to prove actual damage; it is enough to show that the words are calculated to injure the plaintiff's trade. Thomas v. Williams, 14 Ch. D. 864, 49 L. J. Ch. 605. Here the words were calculated to divert customers from the plaintiff to the defendant. All the necessary elements are present here. LINDLEY, L. J., rightly states the law: "If that statement has caused

injury to or is calculated to injure the plaintiff this [* 157] * action will lie." An untrue statement though bonâ fide may be restrained by injunction. Halsey v. Brotherhood, 15 Ch. D. 514, 19 Ch. D. 386, 49 L. J. Ch. 786, 51 L. J. Ch. 233. Bonnard v. Perryman (1891), 2 Ch. 269, 60 L. J. Ch. 617, shows the jurisdiction of the Court to restrain the publication of a libel, and an injunction may be granted where no action for damages would lie.

[Lord HERSCHELL, L. C., referred to Canham v. Jones, 2 V. & B. 218 (13 R. R. 70).]

Swinfen Eady, Q. C., in reply referred to Malachy v. Soper, 3 Bing. N. C. 371, 6 L. J. C. P. 32, as to the necessity for special damage, where (as here) the words were written not of the plaintiff in the way of his trade, but of the goods he traded in.

The House took time for consideration.

Feb. 14. Lord HERSCHELL, L. C. (after stating the facts): My Lords, in the Court of Appeal LINDLEY, L. J., stated the law thus: "If upon hearing the whole of the evidence to be adduced before him the result should be that the statement contained in the label complained of is a false statement about the plaintiff's goods to the disparagement of them, and if that statement has caused injury to or is calculated to injure the plaintiff, this action will lie." LOPES, L. J., said: "All I desire to say is that, in my opinion, it is actionable to publish maliciously without lawful occasion a false statement disparaging the goods of another person and causing such other person damage, or likely to cause such other person damage.'

None of the learned Judges in the Court of Appeal dealt with the evidence which had been adduced on behalf of the plaintiff; but I think it must be taken that they had arrived at the conclusion that that evidence did bring the case within those statements of the law. Of course, if the plaintiff, on his evidence, had made out no case, he could not complain that the learned Judge decided

No. 13. White v. Mellin, 1895, A. C. 157, 158.

against him and did not hear the witnesses for the defendant; the action was in that case properly dismissed. I take it, therefore, that although the learned Judges did not analyse the evidence or make any reference to it, they must have * con- [* 158] cluded that it established a case coming within the law as they laid it down. My Lords, as I understand, in the view of those learned Judges, or in the view of LINDLEY, L. J., to take his statement of the law in the first place, it was necessary in order to the maintenance of the action that three things should be proved that the defendant had disparaged the plaintiff's goods, that such disparagement was false, and that damage had resulted or was likely to result. Now, my Lords, the only statement made by the defendant by means of the advertisement is this: that Vance's food was the most healthful and nutritious for infants and invalids that had been offered to the public. The statement was perfectly general, and would apply in its terms not only to the respondent's infants' food but to all others that were offered to the public. I will take it as sufficiently pointed at the plaintiff's food by reason of its being affixed to a bottle of the plaintiff's food when sold, and that it does disparage the plaintiff's goods by asserting that they are not as healthful and as nutritious as those recommended by the defendant. The question then arises, Has it been proved on the plaintiff's own evidence that that was a false disparagement of the plaintiff's goods?

I will state what I understand to be the result of the plaintiff's evidence. Mellin's food for infants and invalids is a preparation of such a nature that the food is said to be pre-digested, and therefore not to make that call upon the digestion which food ordinarily does; that as regards children under six months of age Mellin's food is the only one which could be suitably used in the place of the ordinary means of nourishment, the mother's milk, and that any farinaceous food would at that age be not only not nutritious but prejudicial. And so far, accepting the plaintiff's evidence for this purpose, there being no evidence to the contrary, the plaintiff, I think, establishes that his food was specially meritorious for that class of cases, and that it would not be correct to say that as regards these children of very tender age Vance's food or any other farinaceous food would be not only more healthful and nutritious, but as healthful and nutritious. But then it appears that when a child has passed the age up to which nutri

[* 159] tion at the breast may ordinarily be* said to continue, the use of some farinaceous food is not only not prejudicial but desirable, and that if the child were to be always brought up upon a food which would be suitable during the very earliest weeks or months, its digestion would be likely to suffer rather than benefit, and there would be not more, but less nourishment. After twelve months, as I understand the evidence, the farinaceous food would be distinctly better for the purposes of nutrition and health than this pre-digested food. That, my Lords, I take to be a fair statement of the result of the evidence. Can it be said, under those circumstances, that it is a false disparagement of the plaintiff's goods to say that this other preparation - Vance's — is more nutritious and healthful for infants and invalids? I put aside the question of invalids: upon that there was no evidence at all. The plaintiff did not say that his was more healthful, or that the defendant's was not more healthful. It is therefore unnecessary to consider the case of invalids, and it is enough to confine one's attention to the case of infants.

The word "infants" is not in ordinary parlance confined to children of very tender age. If one looks at its derivation etymologically it would apply to children so long as they are not able to articulate distinctly not able to speak and nobody would hesitate to refer to children, I should say, at least under two years of age as infants, just as much as they would to children under six months of age. Therefore, if you look at the class of infants as a whole, it is by no means shown that the statement that Vance's food is more nutritious and healthful than the plaintiff's food is false. If the reference had been specially to that very early period of life during which Mellin's food would be beneficial and the other prejudicial, no doubt a statement of that description might well be said to be a false statement; but looking fairly at the language used and the meaning to be attributed to it, I am not satisfied that it has been shown that by means of this advertisement the defendant falsely disparaged the plaintiff's goods. But, my Lords, assuming that he did so, the Court of Appeal regarded it as requisite for the maintenance of the action

that something further should be proved, and that is that [* 160] the disparaging statement has caused * injury to or is calculated to injure the plaintiff. Upon that there is a complete absence of evidence. The plaintiff was called, but he did

No. 13.- White v. Mellin, 1895, A. C. 160, 161.

not state that he had sustained any injury, nor did he even say that it was calculated to injure him, and I own it seems to me impossible, in the absence of any such statement or evidence, to say that it is a case in which such must be the necessary consequence; on the contrary, speaking for myself, I should doubt very much whether it was likely to be the consequence. After all, the advertisement is of a very common description, puffing, it may be, extremely and in an exaggerated fashion, these particular goods, Vance's food. That advertisement was outside the wrapper; inside was found an advertisement of Mellin's food, in which Mellin's food was stated to be recommended by the faculty as best for infants and invalids. Why is it to be supposed that any one buying this bottle at the chemist's would be led to believe that Mellin's food which he had bought was not a good article or not as good an article as another, merely because a person who obviously was seeking to push a rival article said that his article was better? My Lords, why should people give such a special weight to this anonymous puff of Vance's food, obviously the work of some one who wanted to sell it, as that it should lead him to determine to buy it instead of Mellin's food, which was said to be recommended by the faculty as the best for infants and invalids? I confess I do not wonder that the plaintiff did not insist that he had sustained injury by what the defendant had done. There is an entire absence of any evidence that the statement complained of either had injured or was calculated to injure the plaintiff. If so, then the case is not brought even within the definition of the law which LINDLEY, L. J., gives.

LOPES, L. J., adds the word " maliciously," that "it is actionable to publish maliciously without lawful occasion a false statement disparaging the goods of another person." By that it may be intended to indicate that the object of the publication must be to injure another person, and that the advertisement is not published bona fide merely to sell the advertiser's own goods, or at all events, that he published it with a knowledge of its falsity. One or other of those elements, it seems to me, must be intended *by the addition of the word "maliciously." Both those [* 161] are certainly absent here. There is nothing to show that

the object of the defendant was other than to puff his own goods and so sell them, nor is there anything to show that he did not believe that his food was better than any other.