also an engineer, and a manufacturer of a similar class of steam-engines under an alleged patent of which he claimed to be the proprietor. The engines made by the plaintiff and defendant respectively were different both in form and principle, and the plaintiff's engine did not in any way infringe the defendant's alleged patent. The defendant had a large connection and a flourishing business, and he had endeavored to prevent, and had to a considerable extent succeeded in preventing, the plaintiff from doing a similar business, by systematically threatening persons proposing and intending to be customers of the plaintiff that, in the event of their dealing with the plaintiff, he, the defendant, would take legal proceedings against them and obtain an injunction restraining them from so doing. The consequence had been that in a number of instances the defendant had deterred persons from dealing with the plaintiff for the purchase of his engines. This course of conduct on the part of the defendant commenced, so far as the plaintiff had been able to ascertain, in the year 1876, and had been continued up to the present time. ... In his statement of defense the defendant admitted the granting of the plaintiff's patent in 1876, but denied its validity, and stated that he had obtained two prior patents in 1873 for an invention in engines for steam launches; that the engines sold by the plaintiff were not made in accordance with his patent, but were an infringement of his, the defendant's, patent. He also admitted having represented to various persons that the plaintiff had infringed his patent, and having remonstrated with the plaintiff; but he denied ever having used threats of legal proceedings. He said, moreover, that the statements he had in fact made had been made by him with entire bona fides, and in the full and honest belief in his rights as a patentee, and with the intention to follow up the same, if necessary, by proper proceedings in support of his patent rights; and that, if the plaintiff had been prevented from doing business or had suffered injury as alleged (which he, the defendant, denied), such result had been due solely to legitimate competition in trade. Ince, Q. C., and W. W. Cooper, for the appeal. We submit that the Master of the Rolls was in error in holding that there was no case for damages or an injunction. . . . On the result of the authorities, if a statement is made calculated to injure the plaintiff's trade, is published, and is unfounded in fact, an injunction can be obtained, though the statement is made bona fide. If the defendant threatens actions and will not bring one, it is necessary to justice that the plaintiff should be at liberty to test the truth of his statements at once, otherwise he must submit to have his business injured by untrue statements, and have no remedy. . . . ... Aston, Q. C., and Chadwyck Healey, for the defendant, were not called upon. action in the High Court in the nature of slander of title, where the defendant has property of his own in defense of which the supposed slander of the plaintiff's title 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 otherwise, to satisfy the Court or the jury 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 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 the defendant has a right to make, unless, besides its untruth and besides its injury, express malice is proved, that is to say, want of bona fides or the presence of mala fides. The law is so laid down in Wren v. Weild, Law Rep. 4 Q. B. 730, a case of great authority.. ... I feel strongly that there is great force in what Mr. Ince has said about the difficulty in which a plaintiff may be placed by the conduct of a person in the position of the defendant. I do not pretend to be able to answer his observations on that head, but, unless there is mala fides, it is one of those instances in which the law, in the interests of society, permits an injury to be done without any remedy commensurate with it. My opinion, therefore, is that the judgment of the Master of the Rolls is right, and ought to be affirmed. ... BAGGALLAY, L..J. I am of the same opinion. It appears to me that an action for slander of title will not lie unless the statements made by the defendant were not only untrue, but were made without what is ordinarily expressed as reasonable and probable cause, and this rule applies not only to actions for slander of title strictly and properly so called with reference to real estate, but also to cases relating to personality or personal rights or privileges. ... LINDLEY, L. J. I am also of opinion that the course taken by the Master of the Rolls in this case was right. . . . Wren v. Weild comes to this: If I am a patentee, so long as I act honestly I am entitled to say, without running the risk of having an action for damages brought against me, that somebody is infringing my patent, or that somebody else's manufacture is an infringement of my patent. If I say that honestly, I am not liable to an action for damages. If I say it dishonestly, I am so liable, and, if I know that what I say is untrue, it would not take much to persuade a jury that I was acting dishonestly, and then an action for damages would lie. The absence of reasonable and probable cause would be proved as against anybody who kept on making such allegations dishonestly; but, so long as the patentee makes such allegations honestly, Wren v. Weild shows that no action lies against him. 909. WHITE v. MELLIN HOUSE OF LORDS. 1895 (1893) 3 Ch. 276, (1895) A. C. 154 THE respondent was the proprietor of Mellin's food for infants, which he sold in bottles inclosed in wrappers bearing the words "Mellin's Infants' Food." The respondent was in the habit of supplying the appellant with these bottles, which the appellant sold again to the public after affixing on the respondent's wrappers a label as follows: "Notice. The public are recommended to try Dr. Vance's prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered. Sold in barrels, each containing 1 lb. net weight, at 712d. each, or in 7 lb. packets, 3s. 9d. each. Local agent, Timothy White, chemist, Portsmouth." The appellant was the proprietor of Vance's food. Discovering this practice, the respondent brought an action against the appellant, claiming an injunction to restrain him and damages. At the trial before ROMER, J., the plaintiff proved the above facts, and called two analysts and a physician, the result of whose evidence is stated in Lord HERSCHELL'S judgment. Briefly, they testified that in their opinion Mellin's food was suitable for infants, especially up to the age of six months, and persons who could not digest starchy matters, and that Vance's food was unsuitable for such beings, nay, pernicious and dangerous for very young infants. At the close of the plaintiff's case ROMER, J., being of opinion that the label was merely the puff of a rival trader and that no cause of action was disclosed, dismissed the action with costs. The Court of Appeal (LINDLEY, LOPES, and KAY, L. JJ.), being of opinion that the cause ought to have been heard out, discharged that judgment and ordered a new trial. Swinfen Eady, Q. C., and Charles Macnaghten, for the appellant. To maintain an action for slander of goods, the plaintiff must prove three things: (1) that the statement is disparaging to the plaintiff's goods; (2) that it is false; (3) that it has caused special damage to the plaintiff. None of these things were proved. The defendant's label was a mere trading puff, and would be so regarded by the purchasing public. Even if disparaging, the statement was not false; whether one trader's goods are the best or better than another's is a matter of opinion, not of fact. . . . ... Moulton, Q. C., and A. B. Terrell, for the respondent. The defendant not having called witnesses, the plaintiff's evidence was uncontradicted and must be taken to be true, namely, that the defendant's food was inferior to the plaintiff's for the purpose for which it was sold. The words which were manifestly disparaging were therefore shown to be false.. ... Lord HERSCHELL, L. C. [after stating the facts] . . . I entertain very grave doubts whether any action could be maintained for an alleged disparagement of another's goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor's goods are better either generally or in this or that particular respect than his competitors' are. . . . If an action will not lie because a man says that his goods are better than his neighbor's, it seems to me, impossible to say that it will lie because he says that they are better in this or that or the other respect. Just consider what a door would be opened if this were permitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The Court would then be bound to inquire, in an action brought, whether this ointment or this pill better cured the disease which it was alleged to cure-whether a particular article of food was in this respect or that better than another. Indeed, the Courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better. Lord SHAND. My Lords, I also concur in the judgment which the Lord Chancellor proposes, and in the reasons in support of it which have been stated by your Lordships. I only desire to add that for my part I should be quite content with the ground of judgment which ROMER, J., expressed in dismissing the case after the evidence of the plaintiff had been led. "No doubt, on the evidence on the plaintiff's side, so far as that goes, it does tend to show that his food is the best, at any rate for infants under six months old. . . . But no person on seeing what the defendant has done would have read this statement put upon the plaintiff's cases as being anything more than a rival puff.".. If there had been in this case an imputation of intentional misrepresentation for the purpose of misleading purchasers, or a statement that Mellin's food was positively injurious, or that it contained deleterious ingredients, and would be hurtful if it were used, I think there would have been a good ground of action; and, if the authorities have not settled the law otherwise, I should even say that an averment of special damage ought not to be necessary. But when all that is done is making a comparison between the plaintiff's goods and the goods of the person issuing the advertisement, and the statement made is that the plaintiff's goods are inferior in quality or inferior, it may be, in some special qualities, I think this cannot be regarded as a disparagement of which the law will take cognizance. Order of the Court of Ap peal reversed.1 1 [PROBLEMS: The plaintiff had bought certain land from Y., and was about to re-sell it to B., when the defendant wrote to B. warning him against the purchase, as SUB-TOPIC B. PROTECTION OF THIRD PERSON'S INTEREST 910. WEATHERSTON v. HAWKINS KING'S BENCH. 1786 1 T. R. 110 THIS was an action on the case by a servant against the defendant, who was his former master, for words, and also for falsely and maliciously writing and publishing the following letter (stated in the declaration) to one Collier, respecting the plaintiff's character as a servant: "Two days I gave him money to go into the city and buy books. When he came home, I desired him to reckon up his account. I found he had charged me one shilling more than it cost, and that shilling he kept in his pocket." . . . The plaintiff was brother-in-law to Mr. Collier. He was in the service of the defendant, and was by him turned away. Rogers, to whom the plaintiff was recommended to be taken as a servant, applied to the defendant for a character, which not being advantageous, but to the effect stated in the declaration, he (Rogers) did not take him. Collier upon this repeatedly called on the defendant; upon which the letter, stated in the declaration, was written, with an intent to prevent an action by the plaintiff for the words spoken by the defendant to Rogers. The writ was sued out on the same day the letter was written. The question for the opinion of the Court is whether this action lies. Wood, for the plaintiff. This action is maintainable on the letter, which is false and malicious libel. . . . If it be contended that the master of a servant is exempted from the general rule, on account of his relative situation; such a principle is not warranted by any determination in the books. And this is very different from the case of a master giving a general bad character of a servant; for here the defendant has made specific charges of fraud. . . . ... Lord MANSFIELD, C. J. I have held more than once that an action will not lie by a servant against his former master for words spoken by him in giving a character of the servant. The general rules are laid down as Mr. Wood has stated; but to every libel there may Y. was insane at the time of his deed to the plaintiff. The defendant was trustee of an interest in the land for Mrs. Y., and the defendant's wife was Y.'s sister and next of kin. B. broke off his purchase. Was the defendant privileged? (1813. Pitt v. Donovan, 1 M. & S. 639.) The defendant published the following statement of the plaintiff's goods: "Caution: Delmonico Champagne. Messrs. Delbeck & Co., finding that wine stated to be Delmonico champagne is being advertised for sale in Great Britain, hereby give notice that such wine cannot be the wine it is represented to be, as no champagne shipped under that name can be genuine unless it has their names on their labels." Was this privileged, though false? (1887. Hatchard v. Mège, L. R. 18 Q. B. D. 71.)} 7 |