ages were given entire or not. So in Pennyman v. Rabanks, Cro. Eliz. 427, in an action on the case for slandering the plaintiff's title to J. S., who was to buy the plaintiff's land, the words, "I know one that hath two leases of his land, who will, not part with them at any reasonable rate," were held actionable; and no special damage appears to have been alleged. In Bold v. Bacon, Cro. Eliz. 346, it was alleged that, by reason of the words spoken by the defendant, none would buy the plaintiff's land; but no damage was alleged by the loss of any specific purchaser. Indeed, in many cases the immediate effect of the calumny may be to prevent any person from thinking of a purchase. But in Lowe v. Harewood the language as stated in Croke was not of so mischievous a nature; and though in Rowe v. Roach the plaintiff did allege special damage, there was no decision that he was bound to do so. On the other hand, in Millman v. Pratt, 2 B. & C. 486, an action for slander of title, there was no special damage alleged. In Hargrave v. Le Breton, 4 Burr. 2422, it was only decided that malice, express or implied, must appear; while in Hartley v. Herring, 8 T. R. 130, in an action for consequential damage from slander, imputing incontinence to the plaintiff, it was held enough to state that he was employed to preach to a dissenting congregation at a certain licensed chapel; that he derived considerable profit from his preaching; and that, by reason of the scandal, "persons frequenting the chapel refused to permit him to preach there, and had discontinued giving him the profits which they usually had and otherwise would have given," without saying who those persons were or by what authority they excluded him, or that he was a preacher duly qualified according to the 10 Anne, c. 2. In Cook v. Batchellor, 3 B. & P. 150, the defamation was oral, and only injurious to the plaintiffs in the way of their trade. An allegation of special damage was therefore essential to the action.

Talfourd, Barstow, and Rowe, in support of the rule. With the exception of Millman v. Pratt, there is no instance of slander of title without allegation of special damage; there, however, the property was actually put up to sale; it was alleged that persons desirous of purchasing were prevented by the libel from bidding; and the decision of the court turned on a point of variance. But in Lowe v. Harewood the court said that the declaration was not good, and so the judgment was erroneous, because the action

is not maintainable without showing special prejudice, any more than for calling one "whore" or "bastard," without showing special cause of temporal damage; and it was not like words spoken which imply slander and temporal loss, as "thief," aud bankrupt," and such like; but slandering one's title did not import in itself loss, without showing particularly the cause of loss by reason of the speaking the words, as that he could not sell or let the lands; but, being general words, they were not sufficient.

The distinction between written and oral defamation does not apply to slander of title; there is no question in such a case of feelings more or less wounded, but of mere pecuniary loss; and a printed assertion is not likely to occasion greater loss than a spoken one.

Nor is this a libel against the plaintiff in the way of his livelihood. In order to constitute such a libel there must be an assertion, first, concerning the individual, and, secondly, concerning him in the way of his trade. It is not sufficient that the defendant has spoken of the individual only, or of his trade only: it must be of the individual in the way of his trade. In Savage v. Robery, 2 Salk. 694, the plaintiff declared that he was a trader, and that the defendant said of him, "You are a cheat, and have been a cheat for divers years." Upon the first motion, Holt, C. J., held, that the words must be understood of his way of living, and that it needed no colloquium. But Pasch. 10 W. 3, mutata opinion, judgment was arrested. In Tasburgh v. Day, Cro. Jac. 484, in an action for slander of title, the court held that it must be averred that the plaintiff was in actual treaty for the sale of the estate, and that he received special damage. Gerrard v. Dickenson, Cro. Eliz. 197, and Manning v. Avery, 3 Keb. 153, are in confirmation of the same principle.

Cur, adv. vult.

TINDAL, C. J. In this case a verdict having been found for the plaintiff at the trial of the cause, with 57. damages, a motion has been made to arrest the judgment on the ground that the declaration does not state any legal cause of action; and we are of opinion that this objection is well founded, and that the judgment must be arrested.

This is not an ordinary action for defamation of the person, by the publication of slander, either oral or written, in which form

of action no special damage need either be alleged or proved, the law presuming that the uttering of the slanderous words, or the publishing of the libel, have of themselves a natural and necessary tendency to injure the plaintiff. But this is an action to recover damages by reason of the publication of a paragraph in a newspaper, which contains no other charge than that the petition in a bill filed in the Court of Chancery against the plaintiff, and certain other persons as share-owners in a certain mine, for an account and an injunction, had been granted by the ViceChancellor, and that persons duly authorized had arrived in the workings." The publication, therefore, is one which slanders not the person or character of the plaintiff, but his title as one of the shareholders to the undisputed possession and enjoyment of his shares of the mine. And the objection taken is, that the plaintiff, in order to maintain this action, must show a special damage to have happened from the publication, and that this declaration shows none.

The first question, therefore, is, Does the law require in such an action an allegation of special damage? And, looking at the authorities, we think they all point the same way. The law is clearly laid down in Sir W. Jones, 196 (Lowe v. Harewood). "Of slander of title, the plaintiff shall not maintain action unless it was re vera a damage, scil., that he was hindered in sale of his land; so there the particular damage ought to be alleged." And in addition to the cases cited at the bar, viz., Sir John Tasburgh v. Day, Cro. Jac. 484, and Manning v. Avery, 3 Keb. 153, the case of Cane v. Golding, Style's Rep. 169, 176, furnishes a strong authority. That was an action on the case for slandering the plaintiff's title, by speaking these words, viz., "His right and title thereunto is nought, and I have a better title than he." The words were alleged to be spoken falso et malitiose, and that he was likely to sell and was injured by the words; and that by reason of speaking the words he could not recover his titles. After verdict for the plaintiff, there was a motion in arrest of judgment; and Rolle, C. J., said, "There ought to be a scandal and a particular damage set forth, and there is not here;" and upon its being moved again and argued by the judges, Rolle, C. J., held, that the action did not lie, although it was alleged that the words were spoken falso et malitiose, for "the plaintiff ought to have a special cause; but that the verdict might supply; but

the plaintiff ought also to have showed a special damage, which he hath not done, and this the verdict cannot supply. The declaration here is too general, and upon which no good issue can be joined; and he ought to have alleged that there was a communication had before the words spoken touching the sale of the lands whereof the title was slandered, and that by speaking of them the sale was hindered;" and cited several cases to that effect.

We hold, therefore, on the authority of these cases, that an action for slander of title is not properly an action for words. spoken or for libel written and published, but an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title. This action is ranged under that division of actions in the Digests and other writers on the text law, and such we feel bound to hold it to remain at the present day.

The next question is, Has there been such a special damage alleged in this case as will satisfy the rule laid down by the authorities above referred to? The doctrine of the older cases is, that the plaintiff ought to aver that, by the speaking, he could not sell or lease (Cro. Eliz. 197, Cro. Car. 140); and that it will not be sufficient to say only, that he had an intent to sell, without alleging a communication for sale. R. 1. Rolle, 244. Admitting, however, that these may be put as instances only, and that there may be many more cases in which a particular damage may be equally apparent without such allegation, they establish at least this, that in the action for slander of title there must be an express allegation of some particular damage resulting to the plaintiff from such slander. Now the allegation upon this record is only this, "that the plaintiff is injured in his rights; and the shares so possessed by him, and in which he is interested, have been and are much depreciated and lessened in value; and divers persons have believed and do believe that he has little or no right to the shares, and that the mine cannot be lawfully worked or used for his benefit; and that he hath been hindered and prevented from selling or disposing of his said shares in the said mine, and from working and using the same in so ample and beneficial a manner as he otherwise would have done." And we are of opinion that this is not such an allegation of special damage as the authorities above referred to require, where the action

is not founded on the words spoken or written, but upon the special damage sustained.

It has been argued in support of the present action that it is not so much an action for slander of title, as an action for a libel on the plaintiff in the course of his business, and in the way of gaining his livelihood, and that such an action is strictly and properly an action for defamation, and so classed and held by all the authorities. But we think it sufficient to advert to the declaration, to be convinced that the publication complained of was really and strictly a slander of the plaintiff's title to his shares, and nothing else. The bill in chancery, out of which the publication arose, is filed by Tollervey, who disputed the plaintiff's right to the whole of the shares, and claimed in himself a right to part of the same, and prayed that he might be declared to be entitled to some of them; and the only mention made as to the working of the mines was with reference to the appointment of a receiver to the profits thereof. And we think it would be doing violence to the natural meaning of the terms of the publication, if we were to hold it to be published of the plaintiff in the course of his business or occupation or mode of acquiring his livelihood, and not as referring to the disputed title of the shares of the mine.

It has been urged, secondly, that however necessary it may be, according to the ancient authorities, to allege some particular damage in cases of unwritten slander of title, the case of written slander stands on different grounds; and that an action may be maintained without an allegation of damage actually sustained, if the plaintiff's right be impeached by a written publication, which of itself, it is contended, affords presumption of injury to the plaintiff. No authority whatever has been cited in support of this distinction. And we are of opinion that the necessity for an allegation of actual damage in the case of slander of title cannot depend upon the medium through which that slander is conveyed, that is, whether it be through words or writing or print; but that it rests on the nature of the action itself, namely, it is an action for special damage actually sustained, and not an action for slander. The circumstance of the slander of title being conveyed in a letter or other publication, appears to us to make no other difference than that it is more widely and permanently disseminated, and in consequence more likely to be serious than