Nos. 12, 13.

Thorley's Cattle Food Co. v. Massam; White v. Mellin. - Notes. Lordship expressed, because I think in point of law in the various cases to which his Lordship referred as illustrations an action would not lie. That view is supported by the reasons given in the judgment of Lord DENMAN in the case of Evans v. Harlow, 5 Q. B. 624, 13 L. J. Q. B. 120, which I regard as the leading authority applicable to cases of this class.

Therefore, upon the simple ground that the advertisement complained of, though clearly it applied to the plaintiff's goods, really cannot be characterized as a libel, I am of opinion that the action was rightly dismissed by the learned Judge before whom it was tried.

Lord HERSCHELL, L. C. :

My Lords, my noble and learned friend Lord ASHBOURNE, who is unable to be present to-day, has asked me to say that he entirely concurs in the judgment proposed.

Order of the Court of Appeal reversed; Judgment of
Romer, J., restored, with costs here and in the Court of
Appeal; Cause remitted to the Chancery Division.

Lords' Journals, 14th Feb. 1895.

ENGLISH NOTES.

In Ratcliffe v. Evans (C. A. 1892), 1892, 2 Q. B. 524, 61 L. J. Q. B. 535, 66 L. T. 794, 40 W. R. 578, the Court (1892, 2 Q. B. at p. 527) explained the nature of such actions in the following words: "Such an action is not one of libel or slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to action for slander of title. To support it, actual damage must be shown, for it is an action which only lies in respect of such damage as has actually occurred." Later on (at p. 533), it was said: “In an action for falsehood producing damage to a man's trade which in its very nature is intended or reasonably likely to produce, and which in the ordinary course of things does produce a general loss of business, as distinct from the loss of this or that customer, evidence of such general decline of business is admissible. In Hargrave v. Le Breton (No. 14, p. 169, post), 4 Burr. 2422, it was a falsehood openly promulgated at an auction. In the case before us to-day, it is a falsehood openly disseminated through the press-probably read, and possibly acted on, by persons of whom the plaintiff never heard. To refuse, with reference to such a subject-matter, to admit such general evidence would be to misunderstand and warp the meaning of old expressions; to depart from, and not to follow old rules; and in addition

Nos. 12, 13.Thorley's Cattle Food Co. v. Massam; White v. Mellin. —Notes.

to all this, it would involve an absolute denial of justice and of redress, for the very mischief which was intended to be committed."

In Trollope v. London Building Trade Federation (Ch. & C. A., 8 Feb., 6 March, 1895), 72 L. T. 342, 11 Times L. R. 228, 280, a poster, headed "A Black List," gave the names of non-union men whom A. employed. KEKEWICH, J., granted an interlocutory injunction to restrain the continuance of the publication; on the ground that the motive was to injure A. and his men, and that the injury was being inflicted from day to day. The Court of Appeal affirmed the order, on the ground that a primâ facie case had been made out that the defendants had acted injuriously.

AMERICAN NOTES.

This Rule is sustained by Wilson v. Dubois, 35 Minnesota, 471 (race-horse); Boynton v. Shaw Stocking Co., 146 Massachusetts, 219; Tobias v. Harland, 4 Wendell (New York), 537; Dooling v. Budget Pub. Co., 144 Massachusetts, 258; Paull v. Halferty, 63 Pennsylvania State, 46, to the effect that mere disparagement of goods, without proof of falsity and special damage, is not actionable. In the Dooling case, supra, the words alleged were: "Probably never in the history of the Ancient and Honourable Artillery Company was a more unsatisfactory dinner served than that of Monday last. One would suppose from the elaborate bill of fare that an elaborate dinner would be furnished by the caterer Dooling, but instead a wretched dinner was served, and in such a way that even a hungry barbarian might reasonably object. The cigars were simply vile and the wines not much better." The Court held that “words relating merely to the quality of articles made, furnished, or sold by a person, though false and malicious, are not actionable without special damage." See Snow v. Judson, 38 Barbour (New York), 210; Blumhardt v. Rohr, to appear in Maryland —; Hamilton v. Walters, 4 Up. Can. Q. B., 24 (0. S.).

The Thorley case is cited in Newell on Defamation, p. 223, and in Townshend on Slander and Libel, p. 692.

The same was conceded in Gott v. Pulsifer, 122 Massachusetts, 235; 23 Am. Rep. 322. This was an action for disparaging the "Cardiff Giant," a pretended ossified human being of great antiquity, dug up in the State of New York, but which turned out to be a manufacture. The special damage alleged was the loss of sale, and therefore the exclusion of evidence of its value as a scientific curiosity or for purposes of exhibition was approved. It was said that proof of actual malice was not necessary. GRAY, C. J., observed: “But in order to constitute such malice, it is not necessary that there should be direct proof of an intention to injure the value of the property; such an intention may be inferred by the jury from false statements, exceeding the limits of fair and reasonable criticism, and recklessly uttered in disregard of the right of those who might be affected by them." (Citing ERLE, C. J., in Hibbs v. Wilkinson, 1 F. & F. 608, 610; CocкBURN, C. J., in Morrison v. Belcher, 3 F. & F. 614, 620.) "The only definition of malice, given by the learned Judge who presided at the trial, was therefore erroneous, because it required the

No. 14. Hargrave v. Le Breton.—Rule.

plaintiff to prove 'a disposition wilfully and purposely to injure the value of this statue,' as well as 'wanton disregard of the interest of the owners.' The jury, upon the evidence before them, and under the instructions given them, may have been of opinion that the defendants' statements that the plaintiff's statue was an ingenious humbug,' 'a sell,' and 'a fraud,' were false, reckless, and unjustifiable, and had the effect of injuring the plaintiff's property, and caused him special damage; and may have returned their verdict for the defendants solely because they were not convinced that they intended such injury."

To charge a person with selling milk rendered impure by reason of his allowing a diseased horse to run in the pasture with the cows, is libellous. Brooks v. Harrison, 91 New York, 83.

In Swan v. Tappan, 5 Cushing (Massachusetts), 104, it was held that no action lies for a publication disparaging an author's copyrighted works, without allegation and proof of special damage. Citing Tobias v. Harland, 4 Wendell (New York), 537; Ingram v. Lawson, 6 Bing. N. C. 212. The Court also seems to imply that the action would be maintainable by proof of falsity and special damage," that will make a primâ facie case for the plaintiff, and as standing thus malice would be presumed."

Mr. Townshend says (Slander and Libel, sect. 204): "Language concerning a thing is actionable when published maliciously, i. e., without lawful excuse, if it occasions damage to the owner of the thing." Citing some English cases, he continues, in a note: "The foregoing cases seem to imply that the fact of loss or special damage, as it is termed, will alone render actionable language concerning a thing; we state it otherwise in the text, and we suppose it to be otherwise."

Mr. Newell expresses the rule thus: "False and malicious statements disparaging an article of property, when followed as a natural, reasonable, and proximate result by special damage to the owner, are actionable." (Defamation, p. 216.) Citing the Manure Co.'s case, L. R., 9 Ex. 218, to the point that proof of actual malice is not essential.

AN action at common law for slander of title cannot be maintained without proof of malice. A bonâ fide claim of title will, in general, rebut any implication of malice.

There must be malice, either expressed or implied, to maintain an [2422] action for slander of title.

This action was called by the counsel for the defendant an action of slander of the plaintiff's title: but the plaintiff's counsel said it was an action upon the case, for a real injury sustained by

him.

It had been tried before Lord MANSFIELD at Guildhall; and a verdict given for the plaintiff, with £50 damages: but the defendant had moved to set it aside, and to have a new trial. It was argued upon Tuesday, April 25th, 1769; and again, upon Saturday the 29th and this day, Lord MANSFIELD delivered the opinion of the Court.

The general substance of the case was, That the premises (which were of the value of about £1200 and originally belonged to one John Loveday, but had been mortgaged by him to the plaintiff Hargrave, who had also got in a prior assignment of them) were upon sale by auction, for the benefit of the parties respec

*

tively interested, and by their joint agreement. The [* 2423] auction was actually begun; and some persons had bid:

but at the first beginning of the bidding, and before it had proceeded to any considerable degree of advancement, the defendant Mr. Le Breton, who was concerned as attorney for one Mr. Lee, a creditor of John Loveday the original owner and mortgagor, came into the room in a great hurry; and said to the company “that he had bad news to tell them." Being asked "What news?" he answered, that he was sent by a creditor of Mr. John Loveday's, to acquaint them "that the said John Loveday was a bankrupt before he made a mortgage to the plaintiff; and that there was a docket made out for a commission against him; and that his name would be in the Gazette on the Saturday evening following." Whereupon, the bidding immediately ceased; and the estate remained unsold, and does still remain so. What the defendant thus declared was partly true, and partly otherwise. It was true, "that he was really sent by his client Mr. Lee, who was a creditor of Loveday, on purpose to make this public declaration at the auction, of Loveday's

No. 14. Hargrave v. Le Breton, 4 Burr. 2423, 2424.

being a bankrupt before he made the mortgage to the plaintiff; and that Mr. Lee intended to take out a commission against him." But it was not true in fact, nor did Mr. Lee, his client, give him. any authority to say, "that there was a docket made out for a commission against him," nor "that his name would be in the Gazette on the Saturday evening following;" neither is there yet any docket or commission, nor has his name yet been in the Gazette. However, no actual malice was either alleged or proved. But the counsel for the plaintiff inferred malice, from his false assertion, which was merely his own, without any authority from his client; and which (they said) he could not but know to be false, as he was himself Mr. Lee's attorney, and the person to be employed in suing out the commission of bankruptcy, if it had been sued out at all. It appeared, upon the evidence, that one Bolland had recommended Le Breton to Lee (Loveday's creditor) to take out a commission of bankruptcy against Loveday who in fact was then become bankrupt; and that Lee did send Le Breton to this auction, to declare "that he would petition, and make him a bankrupt that night." Le Breton was not at all known to any of the parties; nor had he any knowledge of these affairs, other than the information he received from his client Lee. The fact of Loveday's having committed an act of bankruptcy before he made the mortgage to Hargrave was fully proved by Bolland; and it appeared that Lee had notice of it from Bolland.

*

The counsel for the defendant offered an objection which did not go to the merits; and was easily answered. They said, [*2424] the action was founded on special damages; and therefore the names of those persons who would otherwise have been purchasers, but went off from it upon the speaking of these words, ought to have been specified; whereas this declaration only charges thus: "Whereby divers persons who would have purchased, &c.," without naming any one who went off from treating about the purchase.

The answer was, That in the nature of this transaction it was impossible to specify names. The injury complained of is, that the bidding was thereby prevented and stopped. No one can tell who would have bid, and who would not. The auction ceased; and everybody went away. It could not be known who would have been bidders or purchasers, if it had not been thus put an end to. The main question was: Whether the defendant was justifiable