possessed had become "much depreciated and lessened in value, to wit, in the value of £50. . . and the plaintiff had been hindered and prevented from selling or disposing of his said shares, . . . and . . . from gaining, acquiring, or deriving divers profits, emoluments, benefits, and advantages which otherwise would have arisen and accrued to him." It was held that the averments were insufficient. "The doctrine of the older cases is, that the plaintiff ought to aver that, by the speaking, he could not sell or lease; and that it will not be sufficient to say only that he had an intent to sell without alleging a communication for sale. . . . There must be an express allegation of some particular damage resulting to the plaintiff" (a). By the expression particular damage is to be understood nothing more than an actual or temporal loss which has in fact occurred. Thus a general loss of custom as distinct from the loss of particular known customers is sufficient to support the action (b), provided the words complained of were published under such circumstances as to prevent the claim for such damage from being open to the objection, that the loss of the custom must have been due to unauthorised repetition of the slander, and consequently was too remote (c). Actions of this kind have in modern times generally arisen as Rival traders, between rival traders, in cases in which a dealer in a particular commodity has published a statement disparaging the quality of his rival's goods. Even as between such parties an action will, in general, only lie in respect of such a statement, if it satisfies the above-mentioned requirement, of being false, malicious, and followed by damage (d). But it must be borne in mind that malice in this context, so far as it refers to the motive with which the defendant acted, means spite, a desire to injure the plaintiff as an end in itself, and does not include a desire to benefit the defendant at (a) Per Cur., Malachy v. Soper, (1836) 3 Bing. N. C. p. 384. (b) Ratcliffe v. Erans, (1892) 2 Q. B. 524. (c) As to what those circumstances are, see above, pp. 620 sqq., where the subject is fully discussed. (d) White v. Mellin, (1895) A. C. 154. In this particular case none of the con ditions were satisfied. There was no the plaintiff's expense. A desire to draw away the plaintiff's customers is in itself perfectly legitimate. It is only when improper means are employed to gain that end that such a motive becomes malicious. And the only means which for this purpose the law will regard as improper is fraud, that is to say, the making of the false statement with a knowledge of its falsity (a). If one man publishes from a motive of pure spite a disparaging statement with regard to another's goods, presumably an action will lie if it turn out to be untrue, even though he did not know it to be untrue (b). On the other hand if the defendant did not act from spite, but from a desire to benefit himself, it will be essential to show that he knew his statement to be false (c). In Young v. Macrae (d), where a declaration was held bad which alleged that the defendant, in a published description of his own goods, untruly alleged them to be superior to those of the plaintiff, Cockburn, C. J., conceded that if a trader published matter which was false to his own knowledge of the goods of another, and damage followed, an action would lie. In point of fact, however, a trader, in disparaging his rival's goods, never acts from spite, but always with the object of benefiting himself. It seems, therefore, that in an action against a trader for a slander of that kind it is practically essential to prove his knowledge of the falsity, and that the necessity of proving that knowledge is not confined to cases in which the disparagement complained of consists in a comparison of the defendant's goods with the plaintiff's to the disadvantage of the latter, but applies also where the disparaging statement contains no specific reference to the defendant's goods. The case of Western Counties Manure Company v. Lawes' Chemical Manure Co. (e) no doubt seems to decide the contrary, but that case has been much commented upon (ƒ), and is probably not law. (a) See Lord Herschell's explanation of the term "maliciously" in White v. Mellin, supra, at p. 160. See too the judgments in Mogul Steamship Co. v. McGregor, Gow & Co., (1892) A. C. 25, on the limits of fair competition, and the discussion on that subject, above, pp. 22-26; and see Hubbuck v. WilkinSon, (1899) 1 Q. B. 86, C. A. (b) Per Maule, J., Pater v. Baker, (1847) 3 C. B. pp. 868-9. (c) Gerard v. Dickenson, (1590) 4 Rep. 18 a. (d) (1862) 3 B. & S. 264; 32 L. J. Q. B. 6. (e) (1874) L. R. 9 Ex. 218. (f) White v. Mellin, (1895) A. C. 154. Where, indeed, the only disparagement of the plaintiff's goods consists in the defendant's vaunting the superiority of his own goods, it has on another ground been doubted whether the action will lie, namely, that of the undesirability of turning the courts of law "into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better" (a). And this reason for refusing to entertain the action would seem to apply even to a case in which the defendant knew his statement to be untrue. (a) Per Lord Herschell, White V. Mellin, (1895) A. C. 154 at p. 164, approving the judgment of Lord Den man in Evans v. Harlow, (1844) 5 Q. B. Canadian Notes to Chapter XVIII. SLANDER OF TITLE : ALLEGATION OF INFRINGEMENT OF TITLE (a). In Cousins v. Merrill (b) the defendant combined a caution Ontario. against having anything to do with the plaintiff or his pumps with a threat of prosecution for infringement of patent, using the expression" beware of the fraud." It was held that the declaration disclosed a libel on the plaintiff personally in the caution against having anything to do with the plaintiff or his pump as well as a cause of action for slander of title, and that in such an action the attention of the jury should be directed to the separate character of the publication in view of their finding one part to be true and the other untrue, and the damages should be specially awarded for the part which is untrue. DEFENDANT SLANDERING PLAINTIFF'S TITLE IN The presumption of malice which is necessary to maintain the Ontario. action for slander of title fails when the evidence shows that the claim of the defendant to the property in dispute was put forth in good faith (d). (a) P. 629, supra. (b) 16 U. C. C. P. 114. (c) P. 630, supra. (d) Boulton v. Shields, 3 U. C. R. 21. Ontario. New ACTION ONLY FOR ACTUAL DAMAGE (a). To entitle the plaintiff to succeed there must be not only an allegation that the words complained of as conveying the slander of title are false and maliciously uttered, but also an express allegation of some special damage resulting from the slander actually sustained by the plaintiff, and such special damage must appear upon the face of the declaration to be the mere natural and direct consequence of the words complained of (b). The degree of particularity with which the plaintiff must state his damages where he has been injured by the damping of an auction sale is discussed in Catton v. Gleason (c). It was held that the plaintiff should not be required to give particulars of the names of the persons who would have given for each article in respect of which damage was claimed a larger price than was realised at the sale; all he could reasonably be required to particularise was the amount by which his sale had been damped. A counter-claim for damages arising from slander of title cannot be filed in an ordinary mortgage action (d). To maintain an action for slander of title the words must be Brunswick. followed as a natural and legal consequence by a pecuniary damage to the plaintiff, which must be specially alleged and proved (e). (a) P. 633, supra. (b) Ashford v. Choate, 20 U. C. C. P. 471, following Malachy v. Soper, 3 Bing. N. C. 385, allegation of loss of a sale, &c., held to be sufficient. (c) 14 P. R. 222. (d) Odell v. Bennett, 13 P. R. 10. law in Ir is obviously a grievance that an individual should be Wrongfully harassed by legal proceedings improperly instituted against him. setting the If there is no foundation for them no doubt they will not motion. ultimately succeed, but during their progress they may cause great injury. It is the right of every one to put the law in motion if he does so with the honest intention of protecting his own or the public interest, or if the circumstances are such, be his motives what they may, as to render it probable primâ facie that law is on his side. But it is an abuse of that right to proceed maliciously, and without reasonable and probable cause for anticipating success. damage Such an abuse may of necessity be injurious, as involving Nature of damage to character, or it may in any particular case bring thereby about damage to person or property. There are, says Lord caused. Holt (a), three sorts of damage to a plaintiff, any one of which is sufficient to support an action of malicious prosecution. "First, damage to his fame if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses." To which may be added the damage which a man suffers when his house is entered and his property seized. Whenever a plaintiff can show that he has suffered under any of these heads of damage by reason of the defendant having wrongfully put the law in motion against him, whether civilly or (a) Sarill v. Roberts, (1698) 12 Mod. p. 208. |