furniture by bill of sale to her landlords, by way of secu rity for a debt she had contracted with them. After the widow's death, the plaintiff took out letters of administration to the estate of A., and informed the defendant, the landlords' agent, that the bill of sale was invalid, as the widow had no title to the furniture. Subsequently the plaintiff was about to sell the furniture by auction, when the defendant interposed to forbid the sale, and said that he claimed the goods for his principals under a bill of sale. On proof of these facts, in an action for slander of title, the plaintiff was nonsuited: held, that the mere fact of the defendant's having been told before the sale that the bill of sale was invalid, was no evidence of malice to be left to the jury, and that the plaintiff was, therefore, properly nonsuited. An order having been made by the Court of Chancery, requiring G., the plaintiff, to pay a sum of money, the defendant registered the order pursuant to statutes 1 and 2 Vict., ch. 110, whereby it became a lien on the real estate of the plaintiff, and prevented him raising, by a sale or mortgage of his estate, the money ordered to be paid, held the action could not be maintained, there being no proof of malice. And where the defendant published a notice cautioning all persons not to purchase of the plaintiff a certain tract of land, alleging that the plaintiff obtained the title to said land from the defendant by means of false pretenses, and that the defendant intended. to institute a suit to annul plaintiff's pretended title, it was held not on its face to show malice.3

§ 206 b. Some of the old cases hold that one by claiming title in himself cannot give a right of action for

1 Steward v. Young, Law Rep. 5 C. P. 122.

Gibbs v. Pike, 1 Dowl. N. S. 409; 6 Jur. 465.

3 McDaniel v. Baca, 2 Cal. 326.

slander of title; that to render the claim actionable, it must assert a title in a stranger. This distinction no longer prevails. So formerly it seems to have been supposed that the only ground of damage was a loss of the sale or leasing of the property, the title to which was assailed; it is, however, well settled at this day that any loss which is a natural and proximate consequence of the language is damage. The action cannot be maintained unless there is special damage.3 Where, prior to the publication of the language complained against, the plaintiff and one W. had contracted for the sale of a lot of land-in consequence of the publication W. wished to be released from his contract, and plaintiff released him-plaintiff sued, charging the loss of a sale to W. as the special damage, held that the rescinding of the contract with W. was not special damage, and that no action could be maintained. But where plaintiff had borrowed a sum of money of defendant, and afterwards plaintiff bought spruce battens of A., and before delivery of the battens, defendant gave notice to A. not to deliver them, and that he, plaintiff, had a lien upon them, in an action by plaintiff, alleging that the defendant falsely claimed such lien, and that, by reason of such notice and pretense of lien. and non-delivery of said battens, he had lost the use of them, and been hindered in building certain houses, it was objected that there being a valid con

1

Jenkins Cent. 247; Pennyman v. Rabanks, Cro. Eliz. 427; Lovett v. Weller, I Rolle R. 409; Gerard v. Dickinson, 4 Coke, 18; Sneade v. Badley, 3 Bulst. 75; s. c. 1 Rolle R. 244; and see Vin. Abr. Act. for Words, L, B, 2, 8; Anon. Sty. 414; Boulton v. Shields, 3 Up. Can. Q. B. 21.

* Malachy v. Soper, 3 Bing. N. C. 371; 3 Sc. 723; Tasburgh v. Day, Cro. Jac. 485.

* Watson v. Reynolds, 1 Mo. & Malk. 1; Lowe v. Harwood, Sir W. Jones, 196; S. C. Cro. Jac. 140; Pal. 529; Cane v. Goulding, Sty. 169; Sneade v. Badley, 3 Bulst. 75; s. c. I Rolle R. 244; Brook v. Rawl, 4 Exch. 521; Pater v. Baker, 3 C. B. 831; and ante in note 3, p. 337.

* Kendall v. Stone, 5 N. Y. 14; rev'g s. c. 2 Sandf. 269.

tract 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. 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;5 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.

2 Linden v. Graham, 1 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; Delegal v. Highley, 8 Car. & P. 444. 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.)

Hill v. Ward, 13 Ala. 310.

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.

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.'

$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.

Whether certain language concerns a person or

Like v. McKinstry, 41 Barb. 186; affi'd 4 Keyes, 397; and see Gustole v. Mathers, 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, 1 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.) An action was maintained for saying of the plaintiff's stallion that it had the venereal disease. (Weir v. Allen, 51 N. H. 177; see ante, note 2, p. 337.)

2 Carr v. Hood, I 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

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 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.

therefore within the rules relating to personal defamation. (See 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.