to the public. Those who have already adopted the lubricators against which R. H. would caution will find that the tallow is wasted, instead of being effectually employed, as professed." Held, no libel on the plaintiff, either generally or in the way of his trade, but only a libel on the lubricators, and therefore not actionable without proof of special damage: Evans v. Harlow, 5 Q. B. 624; 13 L. J. Q. B. 120. Plaintiff sued for a libel consisting of an article and a picture which showed his saloon to be the resort of degraded characters, etc. Held, that libel was on the place rather than on plaintiff, and an allegation of special damages was necessary: Kennedy v. Press Pub. Co., 41 Hun, 422.

Where the plaintiff pos

§ 1277. Slander of Title. sesses an estate or interest in any real or personal property, an action lies against any one who maliciously and falsely denies or impugns the plaintiff's title thereto, if thereby damage follows to the plaintiff. The statement

must be both false and malicious. It is never actionable if it is true, nor if it is made in the bona fide assertion of the defendant's right, real or supposed, to the property.

1 Pater v. Baker, 3 Com. B. 869; Like v. McKinstry, 3 Abb. App. 62; Andrew v. Deshler, 45 N. J. L. 167; Harriss v. Sneeden, 101 N. C. 273. False, defamatory, and malicious statements, made with intent to injure the owner of land and his title thereto, constitute slander of title: Dodge v. Colby, 108 N. Y. 445.

2 Walden v. Peters, 2 Rob. (La.) 331; 38 Am. Dec. 213; Carr v. Duckett, 5 Hurl. & N. 783; Smith v. Spooner, 3 Tuant. 246; Wren v. Weild, L. R. 4 Q. B. 730; McDaniel v. Baca, 2 Cal. 326; 56 Am. Dec. 339; Stark v. Chilwood, 5 Kan. 141; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 41 Barb. 186. It seems to be clear that, in an action at common law, or now in the high court of justice, in the nature of slander of title, where the defendant has property of his own, in defense of which the supposed slander is uttered, it is not enough that the statement should be untrue, but there must be some evidence, either from the nature of the statement itself, or some allegation, or something from which the court, if it

is the court, or the jury, if it is the jury, may infer that the statement was not only untrue, but was made mala fide for the purpose of injuring the plaintiff, and not in the bona fide defense of the defendant's own property. It seems to be clear that, if a statement in such a proceeding as this is made in defense of the defendant's own property, although it injures and is untrue, it is still what the law calls a privileged statement; it is a statement that he has a right to make, unless, besides its untruth and besides its injury, what on the commonlaw side is called express malice is proved, that is to say, want of bona fides, or the presence of mala fides: Coleridge, C. J., in Halsey v. Brotherhood, L. R. 19 Ch. Div. 386. In an English case the plaintiff was the assignee of a beneficial lease, which he expected would realize one hundred pounds. But the defendant, the superior landlord, came to the sale, and stated publicly: "The whole of the covenants of this lease are broken, and I have served notice of ejectment; the premises will cost seventy pounds

2

Want of reasonable or probable cause is generally not sufficient from which to infer malice.' This is so where the defendant is the claimant himself or is an agent or attorney, and claims for his principal or client a title which he honestly believes him to possess; so where a man bona fide asserts a title in his father or other near relative to whom he or his wife is heir apparent. But where the defendant makes no claim at all for himself or any connection of his, but asserts a title in some one who is a stranger to him, here he clearly is meddling in a matter which is no concern of his, and such officious and unnecessary interference will be deemed malicious. A levy of execution against one person upon lands belonging to another, and without going upon the land, creates no lien upon it, and is not an actionable wrong, where there is no malice; and if not alleged to be malicious, it will not sustain an action for slander of title. The fact that the licensee of a copyrighted design had, before obtaining the license, infringed the copyright, does not make a notice sent by him to other infringers, on advice of counsel, warning them to desist, give up the infringing articles in their hands, and account for those disposed of, a slander of title, though it would be a good defense to

to put them in reapir." In consequence of this statement the property fetched only thirty-five guineas. Rolfe, B., left to the jury only one question, Was the defendant's statement true or false? and they found a verdict for the plaintiff; damages, forty pounds. But the court of exchequer granted a new trial, on the ground that two other questions ought to have been left to the jury as well: Was the statement, or any part of it, made maliciously? and did the special damage arise from such malicious statement, or from such part of it as was malicious? Brook v. Rawl, 4 Ex. 521; 19 L. J. Ex. 114.

1 Pitt v. Donovan, 1 Maule & S. 648; Steward v. Young, L. R. 5 Com. P. 122; 22 L. T. 168; Clark v. Molyneux, L. R. 3 Q. B. Div. 237; Pater v. Baker,

5

3 Com. B. 831. To constitute slander of title, there must have been malice. It is not malicious to allege a want of title in the owner: Dodge v. Colby, 37 Hun, 515. The defendant is entitled to a nonsuit if the evidence shows that the existence of the title alleged to have been slandered is in dispute in a prior action between the parties: Thompson v. White, 70 Cal. 135.

2 Hargrave v. Le Breton, 4 Burr. 2422; Steward v. Young, L. R. 5 Com. P. 122.

3 Pitt v. Donovan, 1 Maule & S. 639; Gutsole v. Mathers, 1 Mees. & W. 495.

* Odgers on Libel and Slander, 143; and see Atkins v. Perrin, 3 Fost. & F. 179.

an action for infringement.' So where two persons claim patents on a certain machine, it is not actionable for one of them to warn the public or the customers of the other against using the machine of the latter, because it is an infringement, unless the plaintiff can prove that the defendant's claim was not a bona fide one, even though unfounded, but was a malicious attempt to injure him, knowing he had no rights. But it has been held that a patentee is not entitled to publish statements that he intends to institute legal proceedings in order to deter persons from purchasing alleged infringements of his patent, unless he does honestly intend to follow up such threats by really taking such proceedings.3

And special damage must be proved to have resulted from the defendant's words, and to be such as would naturally or reasonably arise therefrom. Special damage is shown by proof that the plaintiff was thereby prevented from selling his property, or renting or leasing it. But a mere apprehension of damage, or that his property (not

1 Hastings v. Giles Lithographic Co., N. Y. Sup. Ct., 1889.

2 Wren v. Weild, L. R. 4 Q. B. 730. Slander of title may be predicated of letters patent; and an action for such slander or libellies, although defendant has repeated merely what he has heard: Meyrose v. Adams, 12 Mo. App. 329. Here is a patent; here is a defendant in possession of a patent; and here is a defendant saying, for all that appears, perfectly bona fide to the plaintiff, and to the persons who are going to deal with the plaintiff: 'Remember, what the plaintiff is making is an infringement of my patent, and is an injury to my property; and I tell you, that if you proceed to injure my property, I shall take proceedings against you.' The result of that may be an injury to the plaintiff. Possibly, in this case, it has been an injury to the plaintiff. I am quite content to assume that it has been; but it seems, and there appears to be good ground for it, that a statement untrue and injurious, made under such

circumstances, does not give a good ground of action. There must be, besides, the element of mala fides, and a distinct intention to injure the plaintiff, apart from the honest defense of the man's own property": Lord Coleridge, C. J., in Halsey v. Brotherhood, L. R. 19 Ch. Div. 386.

3 Rollins v. Hinks, L. R. 13 Eq. 355; 41 L. J. Ch. 358; Axmann v. Lund, L. R. 18 Eq. 330; Halsey v. Brotherhood, L. R. 15 Ch. Div. 514.

Haddon v. Lott, 15 Com. B. 411; Halsey v. Brotherhood, L. B. 15 Ch. Div. 411; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 41 Barb. 186.

Odgers on Libel and Slander, 138; Collins v. Whitehead, 34 Fed. Rep. 121. Where one under contract for the purchase of property is induced to refuse to complete the purchase by reason of slanderous words uttered concerning the property by a third person, the vendor cannot sue such person for slander. His remedy is on the contract of sale: Brentman v. Note, N. Y. Sup. Ct., 1889.

in the market) would be discredited, is not sufficient.1 Exemplary damages are not to be awarded, unless there be proof of a wanton and malicious attempt to injure the owner. This was held in an action brought by one whose father-in-law, in consideration of a life support, had conveyed the land to him, against a brother-in-law, for saying to one who was negotiating a purchase thereof, that if he consummated the purchase, he would buy a lawsuit, etc.2 To maintain an action for slander of title, it is necessary for plaintiff to show either a title or an interest in the property. The defendant, by setting up title in himself to the property, stands in the position of a plaintiff in a petitory action, and must make out his case. If the defendant admits the slander, and avers a better title in himself, the court may investigate his title in the same action, with the onus on himself, to succeed entirely on the strength of his own title. The object of an action for slander of title is to quiet titles, and if this object is attained by a waiver of title upon the part of defendant, there can be no recovery of damages against him, where there has been no malice upon his part. Fraud in obtaining a receipt of a sum, as specified in a deed, is a defense to an action for slander of title, against the grantor of land who published a caution against persons purchasing from his grantee, claiming that the title was obtained under fraudulent pretenses. An action for verbal slander of title to land cannot be maintained against two persons jointly.

ILLUSTRATIONS. - Lands were settled on D. in tail, remainder to the plaintiff in fee. D. being an old man and childless, plaintiff was about to sell his remainder to A., when the de

1 Odgers on Libel and Slander, 139; Manning v. Avery, 3 Keb. 153; Malachy v. Soper, 3 Bing. N. C. 383.

* Van Tuyle. Riner, 3 Ill. App. 556. 3 Edwards v. Burris, 60 Cal. 157. * Clarkston v. Vincent, 32 La. Ann. 613; Gay v. Ellis, 33 La. Ann. 249. Sully v. Spearing, 40 La. Ann. 558.

355.

Dalton v. Wickliffe, 35 La. Ann.

6 Walden v. Peters, 2 Rob. (La.) 331; 38 Am. Dec. 213:

McDaniel v. Baca, 2 Cal. 326; 56 Am. Dec. 339.

8 Webb v. Cecil, 9 B. Mon. 198; 48 Am. Dec. 423.

fendant interfered and asserted that D. had issue. A. consequently refused to buy. Held, that the action lay: Bliss v. Stafford, Owen, 37; Moore, 188. The plaintiff's father being tenant in tail of certain lands, which he was about to sell, the purchaser offered the plaintiff a sum of money to join in the assurance so as to estop him from attempting to set aside the deed, should he ever succeed to the estate-tail; but the defendant told the purchaser that the plaintiff was a bastard, wherefore he refused to give the plaintiff anything for his signature. Held, that the plaintiff had a cause of action, though he was the youngest son of his father, and his chance of succeeding therefore remote: Vaughan v. Ellis, Cro. Jac. 213. The defendant falsely represented to the bailiff of a manor that a sheep of the plaintiff was an estray, in consequence of which it was wrongfully seized. Held, that an action lay against him: Newman v. Zachary, Aleyn, 3. Plaintiff had purchased the manor and castle of H. in fee from A., and was about to demise them to R. for a term of twenty-two years, when the defendant, a widow, said: "I have a lease of the castle and manor of H. for ninety years"; and she showed him what purported to be a lease from a former A. to her husband for a term of ninety years. This lease was a forgery; but the defendant was not aware of it. Held, that no action lay for slander of title; for the defendant had claimed a right to the property herself. Aliter, had she known the lease was a forgery: Gerard v. Dickenson, 4 Rep. 18; Cro. Eliz. 197. A. died possessed of furniture in a beer-shop. His widow, without taking out administration, continued in possession of the beer-shop for three or four years, and then died, having whilst so in possession conveyed all the furniture by bill of sale to her landlords by way of security 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. In an action for slander of title the plaintiff was nonsuited. On appeal, 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: Steward v. Young, L. R. 5 Com. P. 122. D. published in the notice of defect of A.'s title to an oleomargarine patent that "a final injunction and decree was obtained against A. in the United States circuit court," whereas, in fact, there had been only an ex parte order for a preliminary injunction, and the suit was discontinued