certain houses, it was objected that there being a valid contract with A., if plaintiff had suffered any damage by reason of the non-delivery of the battens, he must look to A.; that the non-delivery was an illegal act for which the defendant was not liable; but the court held otherwise, and sustained the action.1 Perhaps plaintiff being prevented from raising money by mortgage on his lands, is such damage as may entitle him to maintain an action. Where the alleged slander consists in the defendant claiming title in himself, the fact of his not having a title is not per se evidence of malice. But the defendant having no title is a circumstance from which malice may be inferred.* Where the defendant in fact made the publication under the advice of counsel, but did not, at the time of making the publication, state that he was acting under such advice, held that the fact of his acting under such advice did not per se shield him from an action; but it was a circumstance to be considered in determining whether or not the publication was made maliciously." 1 Green v. Button, 2 Cr. M. & R. 707. As to maintaining an action for maliciously causing one of two contracting parties not to perform his contract with the other, and thereby occasioning him loss, see Lumley v. Gye, 2 El. & B. 216; Lumley v. Wagner, I De G. M. & G. 604; approved, Bowen v. Hall, 6 Q. B. D. 233; Tarle ton v. McGawley, I Peake, 207; Taylor v. Neri, I Esp. 386; 3 Smith Leading Cases, 9 Am. from 9 Eng. ed., and notes, p. 1827. See note 2, p. 285, ante. Linden v. Graham, Duer, 670. In that case the plaintiff was defeated erroneously, as we suppose, because the damage was not stated with sufficient certainty in the complaint. This want of certainty was a ground for making the complaint more definite, but not, as we think, for holding the complaint insufficient. As to how the damage must be alleged, see Malachy v. Soper, 3 Bing. N. C. 371; Tilk v. Parsons, 2 Car. & P. 201; Delegall v. Highley, 8 Car. & P. 444; Wilson v. Dubois, 35 Minn. 471. A general allegation that the plaintiff's property has been lessened in value, or that people believe he has no title, or that he has been prevented from selling, is not sufficient. (See §§ 329, 369, post.) Where the declaration alleged: whereby M. was prevented from completing his contract for the purchase of said land from plaintiff, and plaintiff lost the sale of said land and the use of the purchase-money thereof, and has been unable to sell said land, and has been put to great expense in quieting the title to said land, it was held to be a sufficient averment of special damage. (Ashford v. Choate, 20 Up. Can. C. P. Rep. 471.) 3 Hill v. Ward, 13 Ala. 310; Sully v. Spearing, 4 So. Rep. 489. 4 McDaniel v. Baca, 2 Cal. 326. Like v. McKinstry, 41 Barb. 186; affi'd 4 Keyes, 397; and see Hill v. Ward, 13 Ala. 310. 6 Hill v. Ward, 13 Ala. 310. § 206 c. The action for slander of title is not restricted to language affecting real property, it lies for slander of title to personal property; thus, where at a public sale of rye the defendant attended, and in the presence and hearing of the persons there assembled, said: "I forbid selling the rye; it is mine," in consequence of which persons were deterred from bidding, and the rye sold for less than it would otherwise have done, it was held an action could be maintained.1 1 Like v. McKinstry, 41 Barb. 186; affi'd 4 Keyes, 397; and see Gutsole v. Mathews, I M. & W. 495; 1 Tyrw. & Gr. 694; Green v. Button, I Gale, 349; 2 C. M. & R. 707; 1 Tyrw. & Gr. 118; Malachy v. Soper, 3 Bing. N. C. 371; 3 Scott, 723; Rowe v. Roach, i M. & S. 304; Carr v. Duckett, 5 Hurl. & N. 783; Hill v. Ward, 13 Ala. 310; and slander of title to a slave. (Ross v. Pines, Wythe, 71.) An action was maintained for alleging that plaintiff's machines were an infringement on defendant's patents. (Wren v. Weild, Law Rep. 4 Q. B. 213.) "Caution. To all who may be arranging with J. M. Cousins for his self-acting pump, who claims to have patented same in April last. I wish to caution the public against having anything to do with Cousins or his pumps, it being an infringement on my patent obtained in 1858. I intend to prosecute him immediately. Beware of the fraud and save costs," held, besides being a slander of plaintiff's title, to amount to a libel of him individually. (Cousins v. Merrill, 16 Up. Can. C. P. 114.) Defendants issued a circular stating that they were unable to supply a particular electric bell (for which plaintiff had obtained protection), as it had been proved to be an infringement of another patented bell." The fact was that prior to the issue of the circular, no proceeding had been commenced against plaintiff respecting his bell. An action was afterwards commenced, and then abandoned. Held, there was no reasonable and probable cause for the statement in the circular. (Crampton v. Swete & Main, 58 Law Times, 516.) Every man has a right to say, "I am the proprietor of such and such a print, and I warn all the world, and you in particular, not to pirate it;" "We warn you that a certain reproduction of it is a piracy," although he may be wrong in law with respect to its being a piracy. "I think his saying so would not be actionable, because a man is not bound to be correct in his statement of the law, though he is bound to be correct in his statement of fact." A man may intend to state the law, and yet so state it as to appear to be stating a fact, and if he does this he is responsible. (Bramwell, L. J., Dicks v. Brooks, 15 Ch. Div. 39; cited and approved, Halsey v. Brotherhood, 19 Ch. Div. 391; see, also, Rollins v. Hicks, Law Rep. 13 Eq. 355; Axmann v. Lund, Law Rep. 15 Eq. 330; Hastings v. Giles Litho. Co. 21 N. Y. St. Rep. 268.) Plaintiffs, vocalists, advertised as follows: "The Sisters Hartridge have pleasure in thanking Chappel & Co. (music publishers) and others for their permission to sing any morceaux from their musical." Defendant, who was interested as agent for the proprietors of the "stage right" of certain songs published by the firms mentioned, wrote the proprietors of two music halls at which plaintiffs were engaged to sing, to the effect that the advertisement, if relied upon in every particular, was calculated to lead them to incur penalties under the copyright act, inasmuch as the publishers named had in some instances no power to § 207. As one cannot cloak his wrong-doing by the use of ironical language (§ 133), so neither can one with impunity attack a person by pretending to attack a thing; for although the words may be professedly concerning a thing, yet if in reality they concern a person, they will be judged by the rules governing language concerning the person.1 Whether certain language concerns a person or a thing is sometimes a question difficult to determine; but it is always a question of fact, and like every other question of fact, is to be determined sometimes by the court and sometimes by the jury (§ 69). The language give the alleged permission, and insinuating that music hall singing was not calculated to create a demand for their musical publications. Upon a motion to set aside a nonsuit, it was held that, inasmuch as the letters were reasonably susceptible of a construction which would make them libelous, the opinion of the jury ought to have been taken upon their meaning. (Hart v. Wall, Law Rep. 2 C. P. 146.) An action was maintained for saying of the plaintiff's stallion that it had the venereal disease. (Wier v. Allen, 51 N. H. 177.) In Wilson v. Dubois (35 Minn. 471), the plaintiff alleged he was prevented selling his horse by reason of defendant's statement that the horse was 21 years old, whereas it was not more than 12 years old. His suit failed for a defect in his pleading. See ante, note 1, p. 284. In an action for slander to title of personal property, plaintiff can recover only such damages as are specifically alleged. (Childs v. Tuttle, 48 Hun, 228.) 1 Carr v. Hood, 1 Camp. 355, n. An employer may have an action for language injurious to him in his business, although the language directly points to a person in his employ and not to himself; and the owner of a chattel may sue for injury to his business by language respecting such chattel, but necessarily referring to the owner. (Harnett v. Wilson, I Victoria Law Times, 45; and see Riding v. Smith, Law Rep. 1 Ex. Div. 91.) In Tobias v, Harland, 4 Wend. 537, the court said that words disparaging an article made or dealt in by the plaintiff, were not actionable unless they imputed deceit or malpractice in the making or vending, or a want of skill in the manufacturing. In reference to this dictum it must be observed that words imputing to plaintiff deceit or want of skill do not concern the thing, but the person, and are therefore within the rules relating to personal defamation. (See Kennedy v. Press Pub. Co. 3 N. Y. State Rep. 139; 41 Hun, 422; Latimer v. West. Morning News Co. 25 Law Times, N. S. 44.) As to pleas in actions for slander of title, see Mair v. Culy, 12 Up. Can. Q. B. 71; Boulton v. Shields, 3 Id. 21; Crean v. Gamble, 7 Ir. Jur. N. S. 531. Exemplary damages in an action for slander of title. (Van Tuyl v. Riner, 3 Bradw. 556.) Bill of particulars in action for slander of title. (Childs v. Tuttle, 48 Hun, 228.) A cut or picture of the interior of a saloon, with "Kennedy's" beneath, together with an article, which, taken in its strongest sense, with innuendoes, was a charge that the saloon was the resort of improper characters, the associations bad, &c., without other mention of the plaintiff, held, a libel on the place and not on plaintiff. (Kennedy v. Free Press Pub. Co. 41 Hun, 422.) And charging in a which on its face concerns a person, may indirectly affect a person other than the person whom on its face the language concerns. It may affect one as concerning him personally, and affect another as concerning a thing. The language heretofore referred to (§ 201) concerning an actress, whereby she refused to perform her engagement, was as to her concerning the person, but as to her employer it was concerning a thing, namely, his right of property in or to her services. newspaper article that a public dinner provided by a caterer was bad, "the cigars vile, and the wines not much better," was held not to attack the in dividual, and not actionable per se. (Dooling v. Budget Pub. Co. 144 Mass. 258; 36 Alb. L. J. 18.) CHAPTER IX. DEFENSES. Privileged publications generally-Repetition-TruthLegislative proceedings and reports thereof-Judicial proceedings-Parties to proceedings-Counsel-Witnesses-Judges-Grand jurors-Reports of judicial proceedings-Quasi judicial proceedings-Church discipline-Seeking advice or redress other than judicially-Giving information or advice generally-Attorney and client-Master and servant-Candidates for office or employment-Insanity-DrunkennessInfancy-Accord and satisfaction-Previous recovery -Apology-Freedom of the press-Criticism. 208. The actionable language referred to in the preceding chapter is to be understood as prima facie actionable only, that is to say, it is actionable when published without any legal excuse for making the publication.1 We have, in previous chapters (§§ 64, 65), referred to the kinds of legal excuses, and the distinction between legal excuses and defenses, and (§ 50) stated that it is the occa 1 To every libel there may be an implied justification from the occasion. (Weatherstone v. Hawkins, I T. R. 110.) But "there are some libels it is impossible to justify." (Pollock, Ch. B., Darby v. Ouseley, 25 Law Jour. 227, Ex.) In that case the charge was that plaintiff was a Roman Catholic, and necessarily "a traitor," and held, a plea of justification could not possibly be supported. "Whether the circumstances under which a communication is made constitute it a privileged communication or not, is a question which the court has assumed the jurisdiction to decide. But it is more a question of fact in each particular case than a question of law. The court is to consider whether the occasion is such as to make the communication one of a privileged character. That being so, it by no means follows that we can derive much aid in one case from another the circumstances of which are not exactly the same. (Maule, J., Wenman v. Ash, 13 C. B. 836; and see Darby v. Ouseley, 1 Hurl. & N. 1.) |