Francis H. (Francis Hermann) Bohlen.

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cording to the old form, must be malicious, and it must be of and
concerning the plaintiff'. Just as the defendant could not excuse
himself from malice by proving that he wrote it in the most benevo-
lent spirit, so he cannot show that the libel was not of and concern-
ing the plaintiff by proving that he never heard of .he plaintiff. His



S/O JONES V. HULTOX & CO.

intention in both respects equally is inferred from what he did His
remedy is to abstain from defamatory words.

It is suggested that there was a misdirection by the learned
judge in this case. I see none. He lays down in his summing up
the law as follows : "The real point upon which your verdict must
turn is, ought or ought not sensible and reasonable people reading
this article to think that it was a mere imaginary person such as I
have said — Tom Jones, Mr. Pecksniff as a humbug, Mr. Stiggins,
or any of that sort of names that one reads of in literature used as
types? If you think any reasonable person would think that, it is
not actionable at all. If, on the other hand, you do not think that,
but think that people would suppose it to mean some real person —
those who did not know the plaintiff of course would not know who
the real person was, but those who did know of the existence of
the plaintiff would think that it was the plaintiff" — then the action
is maintainable, subject to such damages as you think under all the
-circumstances are fair and right to give to the plaintiff." I see no
jbjection in law to that passage.

Lord Atkinson. My Lords, I concur with the judgment which
nas been delivered by my noble and learned friend on the woolsack,
and I also concur substantially with the judgment delivered by Far-
well L. J., in the Court of Appeal. I think he has put the case upon
its true ground, and I should be quite willing to adopt in the main
the conclusions at which he has arrived.

Lord Gorell. My Lords, I concur also with the judgment
which has been pronounced by the Lord Chancellor. I also wish
to express my concurrence with the observations which my noble
and learned friend Lord Atkinson has made upon the judgment of
Farwell L. J.

In the publication of matter of a libellous character, that is
matter which would be libellous if applying to an actual person, the
responsibility is as follows : In the first place there is responsibility
for the words used being taken to signify that which readers would
reasonably understand by them ; in the second place there is respon-
sibility also for the names used being taken to signify those whom
the readers would reasonably understand by those names ; and in
the third place the same principle is applicable to persons unnamed
but sufficiently indicated by designation or description.

My Lords, I demur to the observation so frequently made in
the argument that these principles are novel. Sufficient expression
is given to the same principles by Abbott C. J. in Bourke v. Warren,
3 C. & P. 307, in which the learned judge says: "The question for
your consideration is whether you think the libel designates the
plaintiff in such a way as to let those who knew him understand
that he was the person meant. It is not necessary that all the world
should understand the libel; it is sufficient if those who know the
plaintiff can make out that he is the person meant." I think it is
out of the question to suggest that that means "meant in the mind
of the writer" or of the publisher ; it must mean "meant by the
words employed." The late Lord Chief Justice Coleridge dealt sim:-



RICHARDSON' V. GUNBY. 87 1

larly with the point in Gibson v. Evans, L. R. 23 Q. B. D. 384 when
in the course of the arj^aimcnt he remarked; "It does not signify
what the writer meant; the question is whether the alleged libel
was so published by the defendant that the world would apply it
to the plaintiff."

Appeal dismissed.



SECTION 5,

Plaintiff's Consent to be Defamed.

Defamation published at tJie plaintiff's instigation, by his pro-
curemetit or with his consent.



U.C. g.-^,



RICHARDSON v. GUNBY.



Supreme Court of Kansas, 1912. 127 Pacific Reporter 533.

Action of libel. The defendant admitted writing the letter com-
plained of, but as a defense he alleg-ed, i)itcr alia, that it was written
in response to a letter of inquiry addressed to him which was writ-
ten at the instance of the plaintiff as a decoy to induce the defend-
ant to make some statement upon which to predicate an action. A

Ulemurrer filed to this defense was overruled. The verdict and judg-

., ment were for the defendant,

Benson, J. Whatever may be the rule in criminal cases, where
the object is punishment for a public offense, in a civil action a party
cannot be allowed to recover damages for a libel which he procurec
or instigated to be published against himself for the purpose of lay-
ing the foundation of a lawsuit for his own pecuniary gain. It
w'ould be contrary to the principles declared in analogous cases tc
sustain such an action. It follows that the demurrer to the defense
referred to was properly overruled.

Another feature of the case closely related to this remains to
be considered. In the tenth instruction the court, referring to the
defense last considered, said: "If this letter written by Mr. Ncal
was the result of a decoy letter sent to Mr. Gunby at the instance
and request of Mr. Richardson, plaintiif cannot recover, for the
reason that it would place the plaintiff in the situation of publishing
a libel against himself — a thing which the law will not tolerate."
This statement lacks an important qualification. The reason why a »
person cannot recover in such a case, w'here he instigates or invites
the libel, is that he does it, as charged in the reply, for the purpose
of predicating an action for damages upon it.^ He may not thus

^Accord: Melcher v. Beeler, 48 Colo. 233 (1910); Holland v. Blake
Mfg. Co., 156 Mass. 543 (1892), defendants gave a copy of the printed report
of an investigating committee to an agent of the plaintiff sent to procure it,
there having been no previous publication by the defendant, both cited in the
principal case; Sutton v. Smith, 13 Mo. 120 (1850); Miller v. Donovan, 16
^tisc. 453 (N. Y. 1896), no right of action "unless there has been a previous



872 RICHARD30N V. GUNBY.

assist in builclinj^ up a cause of action for the purpose of gathering
the fruitage to himself. If, however, the plaintiff instigated or set
on foot tli^e inquiry for the purpose of ascertaining whether the de-
fendant, or the bank of which he was president, was disseminating
evil reports concerning the cement company or its officers, in order
that such influences might be counteracted, or for any other proper
purpose, and not for the purpose of predicating an action for dam-
ages in his own behalf, he was not estopped from maintaining an
action.- In King v. Waring et ux., 5 Esp. 13, Lord Alvanley said:
"The question is, if in consequence of the letter so written by the
defendant, and which letter was false and unfounded, the plaintiff
was prevented from getting a place. It has been decided that giving
a character to a servant, how^ever injurious to them, yet if fairly
given, would not sustain an action, but if the letter was procured
by another letter not w-ritten wath a fair view of inquiring a char-
acter, but to procure an answer upon which to ground an action for
libel, such evidence, I think, ought not to be admitted."

Following the instructions last quoted, if the jury found froifT"!
the evidence that the so called decoy letter was written at the in- /
stance and request of appellant, they were precluded from giving /
him a verdict, regardless of his purpose or motive in causing the '
inquiry.^ This was an error affecting his substantial rights, and for
this the judgment is reversed, with directions to grant a new triak

All the justices concurring. '^

publication by the defendant"; Nott v. Stoddard, 38 Vt. 25 (1865) : contra,
Duke of Bruns-aAck v. Harmer, 14 A. & E. (N. S.) (Q. B.) 185 (1849).
though here the defendant had previously published the libel, the plaintiff
sent an agent to obtain a copy of a newspaper published seventeen years be-
fore. This was held a sufficient publication.

^Accord: Thorn v. Moser, 1 Denio 488 (N. Y. 1845) ; Byam v. Collins,
111 N. Y. 143 (1888), p. 159, semble, in this case the inquirer while repre-
senting himself as the plaintiff's agent, had in fact no authority to represent
him. The English cases hold that where the defendant himself, or by an
agent, calls upon the defendant for an explanation of his acts derogatory or
offensive to the plaintiff, or vague words of condemnation, the defendant's
explanation, though containing defamatory language, is privileged; War v.
Jolly, 6 C. & P. 497 (1834) ; Cowlcs v. Potts, 34 L. J. Q. B. 247 (1865) ; see
also" Heeler v. Jackson, 64 Md. 589 (1886) ; and A' of; v. Stoddard, 38 Vt. 25
(1865); Whitelv v. Adams, 15 C. B. (N. S.) 392 (1863). The reason given
by Odgers in "Libel and Slander", 3rd ed. 255, is, that the plaintiff has brought
it on himself. But if the defamatory words are a mere repetition of the
slander previously uttered by the defendant there is no privilege, though
spoken upon the plaintiff's request for an explanation, Griffiths v. Lewis, 7
A. & E. N. S. 61 (Q. B. 1845), or for making defamatory statements in ex-
planation of a rumor originating with the defendant, Smith v. Mathews, 1
Moo. & R. B. 151 (1831); but see Schults v. Guldenstein, 144 Mich. 636
(1906) ; where the privilege was held to exist though the defendant was re-
sponsible for the rumors which led the plaintiff's husband to demand an ex-
planation. . -re 1 J •

" In the following cases it was held that where the plaintiff who had in-
duced the defendant to publish the slander or libel, could not recover irre-
spective of his motives in so doing: Heller v. Harvard, 11 111. App. 554
(1862), the defendant repeated, at the plaintiff's instance, and in the presence
of a friend brought bv him, words previously spoken to him alone; Haynes
v. Leland, 29 Maine 233 (1848), defendant, ?t the plaintiff's request, repeated
words spoken to him bv a third P'^'-scn ; Irish-American Bank v. Bader, 59
Minn. 329, 61 N. W. 328 (Minn. 1894).



CHAPTER III.

Disparagement of Property.^



(a) Disparagement of title ("slander of title").

U. c jl S

MALACHY V. SOPER.

Court of Common Pleas, 1836. 3 Bingham's New Cases, 371.

TiNDAL, C. J. In this case a verdict having been found for the
plaintiff at the trial of the cause, with £5 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 a pnhlimtinn of a para gTa2hJ n a newspa per,
which contains no other charge than that the "petition in a bill filed
in the Court of Chancery against the plaintiff, and certain other per-
sons as shareown.ers in a certain mine, for an account, and an in-
junction, had been granted by the Vice-Chancellor, 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 tille las one of Jjie s hareholders to th e nnrh'^pntrd
possession and enjoyment of his shares of the rnine.- And the ob-



^For a very valuable discussion of the whole subject, see Professor Jere-
miah Smith, Disparagement of Property, 13 Columbia Law Review, p. 20
and 121 (January and February, 1913).

'"'There is a branch of the law (generally known by the inappropriate
but convenient name. Slander of Title) which permits an action to be brought
against one who maliciously decries the plaintiff's goods or some other thing
feclonging to him, and thereby produces special damage to the plaintiff. This
is obviously no part of the law of .defamation, for the plaintiff's reputation
remains uninjured; it is really an action on the case for maliciously acting
in such a way as to inflict loss on the plaintiff." — Odger's Libel & Slander,
2nd ed., 139; 3rci ed., 145; 4th ed., 74. This passage which applies both to
disparagement of title and quality of propertv, was cited with approval by
Day, J., in Hat chard v. Mcge and others, L. R. 18 Q. B. Div. 771 (1887), in
which it was held that such actions being an injury to property and not a
personal injury to reputation, fall within the modern liberal interpretation
of the Act of 4 Edw. 3 ch. 7, and survive the death of him who was owner
at the time the property was disparaged.

873



8/4 MALACHY V. SOPER.

yjection taken is, that the plaintiff in order to maintain this action,
must shew a special damage to have happened from the pubHcation,
and that this declaration shews none.

The first question therefore is, does the law require in such an
action an allegation of special damage ? And looking at the authori-
ties we think they all point the same way. The law is clearly laid
down in Sir W, Jones 196 {Loive v. Harewood) : "of slander of

^title, the plaintiff shall not maintain an action, unless it was re vera
a damage ; soil., 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 Tasborough v. Day, Cro. Jac.
484, and Manning v, Avery, Keb. 153, the case of Cane v. Goidding,

^-^tyle'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 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 re-
cover his tithes. 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 shewed 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 ac-
tinp fo r slander of title is not proper ly an nc tinn for ' word s , spoken .. ,
or for libel written and published, but an action on t he case fo r
special damage susta ined by re ason of the spe aking or publication
of the slander of the plamtitt'sTitle. This action is ranged under
""tHar^MstoiToi actions m 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 aM
leged 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 plain-
tiff 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 commu-
nication for sale (R. i Roll. 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 with-
out such allegation, they establish at least this, that in the action for
slander of title, there must be an express allegation of some par-



MALACHY V. SOPER. 875

ticular damage resulting to the plaintiff from such slander. Now
the allegations upon this record is only this, "that the plaintiff is
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 bene-
ficial a manner as he otherwise would have done." And we are of
opinion that this if not such an allegation of special damage as the
authorities above referred to require, where the action is not found- y
ed on the words spoken or written, but upon the special damage/'^^



' In most of the earlier cases the damage alleged was the loss of a sale,
in which case it was held that it was necessary to allege and prove that some
negotiations for its sale then in progress were broken off or that some par-
ticular intending purchaser was hindered from buying, Tasburgn v. Day,
Cro. Jac. 484 (1618); Law v. Harwood, Cro. Car. 140 (1629); Manning v.
Avery, 3 Keb. 153 (1674); Wilson v. Dubois, 35 Minn. 471 (1886); Steven-
son v. Love, 106 Fed. 466 (Circ. Ct. N. J. 1901); but where the plaintiff's
title to property put up at auction is denied, it is enough to allege and prove
that prospective bidders left the room, "it being impossible in the nature of
things to specify names." Liavenhill v. Upcott, 20 L. T. 233 (1869); Roche
V. Meyer, L. R. 2 Ir. 35 (1895). "The declaration must set out the names
of the prospective purchasers, unless it alleges that, under the circumstances,
it is not reasonably possible for the plaintiff to ascertain the names," Smith,
Disparagement of Property, 13 Col. L. R. p. 123. But any other harm re-
sulting as a natural consequence of the disparagement or denial of the plain-
tiff's title is sufficient, Newman v. Zachary, Aleyn 3 (1646), seizure of plain-
tiff's sheep as an estray; Vaughan v. Ellis, Cro. Jac. 213 (1608), withdrawal
of an offer to pay the plaintiff a sum of money to release his' remote interest
in an estate; Brook v. Rawl, 4 Exch. 521 (1849), plaintiff's leasehold brought
low price at an auction in consequence of certain statements made by his
landlord; Linden v. Graham, 1 Duer 670 (N. Y. 1853), plaintiff prevented
from raising money on mortgage, and see Richards, J. A., in Nagy v. Mani-
toba Free Press, 16 Manitoba R. 616 (1907), p. 630, to the effect that the
damage done by crowds brought to the plaintiff's property by the publication
of the story that it was haunted, was "special" damage.

It was held so early as 1646, that the injurious action of a third person
induced by the defendant's disparagement of the plaintiff's property was none
the less sufficient damage, because such action was itself a trespass, for which
the plaintiff might have his action against such third person, Newman v.
Zachary, Aleyn 3. So it is held in Ashford v. Choate, 20 Upper Canada C. P.
471 (1870). that the refusal of a purchaser to complete a contract to pur-
chase, though such contract was valid and binding, and the plaintiff might
have maintained his action against such purchaser for breach thereof, was
sufficient special damages; and see Parke B., in Green v. Button, 2 C. M. &
R. 707 (1835) ; Bower, Code of Actionable Defamation, 313-315 and Z3, note
d., and Smith, Disparagement of Property, 13 Col. L. R. 125-127; contra.
Burke ft v. Griffith, 90 Cal. 532 (1891); iralklcy v. Bostwick. 49 Mich. 374
(1882) ; Kendall v. Stone, 5 N. Y. 14 (1851). where the purchaser being led
by the defendant's statements to desire to relinquish the agreement, binding
on both, the plaintiff assented and the agreement was rescinded ; Felt v. Gcr-
mania Life Ins. Co., 133 X. Y. S. 519 (1012) : Paull v. Halferty. 63 Pa. St.
^6_ (1869), semble, all based on Lord Ellenborough's ooinion in Vicars v.
Wilcocks, 8 East 1 ; but even in these jurisdictions the plaintiff may recover



8/6 MALACHY V. SOPER.

It has been argued in support of the present action, that it is
not so much of 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 gain-
ing his livelihood, and that such an action is strictly and properly
an action for defamation, and so classed and held by all the authori-
ties. But we think it is 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 Tollervy, who disputed the plaintift"'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 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 plain-
tiff in the course of his business or occupation, or mode of acquir-
ing 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 dam-
age in cases of unwritten slander of title, the case of written slander
stands on dift'erent 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 au-
thority 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 na-
ture of the action itself, namely, that it is an action for special dam-



if a purchaser is induced to refuse performance of a contract unenforceable
for any reason, as when not in writing as required by the Statute of Frauds,
Rice v. Mauley, 66 N. Y. 82 (1876).

The expense incurred in legal proceedings to defend, or remove the
cloud on, the plaintiff's title caused by the defendant's disparagement was held
sufficient damage in Elborow v. Allen, Cro. Jac. 642 (1623), and Chesebro v.
Powers, 78 Mich. 472 (1889); contra, Cohen v. Minzesheimer, 118 N. Y. S.
385 (1909); McGiiinness v. Hargiss, 56 Wash. 162 (1909); Ashford v.
Choate, 20 Upper Canada C. P. 471 (1870).

The plaintiff must prove that his damage has been caused by the defend-
ant's conduct, rieming v. McDonald, 230 Pa. 75 (1911) ; Barrett v. Associ-
ated Newspapers, 23 Times L. R. 666 (1907), where the plaintiff's house had
been untenanted, because of rumors of its being haunted, for some time be-
fore the defendants published a story based thereon. If the defendant's state-
ments, though all disparaging, are in part true, the plaintiff must show that
his damage was caused bv that part which was false and so wrongful, Brooh
V. Rawl. 4 Exch. 521 (1849), per Parke B.

In Ross v. Pines, Wythe 69 (Va. 1789), it was held that the loss of a sale
caused by the apparently unauthorized act of the addressee of the disparag-
ing letter in showing it to an intending purchaser, was actionable damage.
See Smith, Disparagement of Property, 13 Col. L. R. p. 125.



PENNYMAX V. RABANKS. 877

age actually sustained, and not an action for slander. The circum-
stance 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 the damages in
consequence more likely to be serious than where the slander of
title is by words only ; but that it makes no difference whatever in