stranger by reason of the negligence of a servant, although he has used all diligence in choosing his servants and providing for the careful direction of their work. The necessary and sufficient condition of the master's responsibility is that the act or default of the servant or agent belonged to the class of acts which he was put in the master's place to do, and was committed for the master's purposes. And "no sensible distinction can be drawn between the case of fraud and the case of other wrong.' any The authority of Barwick v. English Joint Stock Bank (d) is believed, notwithstanding the doubts still sometimes expressed, to be conclusive.

II. Slander of Title.

Slander of title. The wrong called Slander of Title is in truth a special variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff him

(d) L. R. 2 Ex. 259, 265.

Slander of title. An action for slander of title will lie against one who falsely and maliciously disparages the title of another to property, real or personal, and thereby causes him some special pecuniary loss or damage; and in order to maintain the action, it is necessary to establish each of these facts. Words spoken disparagingly of property, however false or malicious, are not in themselves actionable, unless special pecuniary damage has resulted therefrom as the direct and natural result of the utterance of the words. Burkett v. Griffith, 90 Cal. 532; 27 Pac. Rep. 527. See Marsh v. Billings, 7 Cush. 322; Chesebro v. Powers, 78 Mich. 472; 44 N. W. Rep. 290; Duncan v. Griswood, 18 S. W. Rep. 354. To sustain an action for slander of title, malice, either express or implied, must be shown. Dodge v. Colby, 37 Hun, 515; Walden v. Peters, 2 Rob. (La.) 331; Weakley v. Bostwick, 49 Mich. 374; Andrews v. Deshler, 45 N. J. L. 167. Also, special damages to the plaintiff must be proven. Swan v. Tappan, 5 Cush. 111; Tobias v. Harland, 4 Wend. 537; Gott v. Pulsifer, 122 Mass. 235; 23 Am. Rep. 322. In an action for slander of goods it must be shown that the defendant has injured the plaintiff by his false representations. The mere averment that the plaintiff was compelled to go out of business is not sufficient to sustain the action. Dudley v. Briggs, 141 Mass. 582.

self, are induced by the defendant's falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation; it is "an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title" (e). Also the wrong is a malicious one in the only proper sense of the word, that is, absence of good faith is an essential condition of liability (ƒ); or actual malice, no less thanspecial damage, is of the gist of the action.

Recent extensions of the principle. This kind of action is not frequent. Formerly it appears to have been applied only to statements in disparagement of the plaintiff's title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and copyright. But an assertion of title made by way of selfdefence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith (g). In America the law has been extended to the protection of inchoate interests under an agreement. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting loss to him, and it is held to make no difference that the original agree

(e) Tindal C. J., Malachy v. Soper (1836), 3 Bing. N. C. 371; Bigelow L. C. 42, 52.

(f) Halsey v. Brotherhood (1881), 19 Ch. Div. 386, 51 L. J. Ch. 233, confirming previous authorities.

(g) Wren v. Weild (1869), L. R. 4 Q. B. 730, 38 L. J. Q. B. 327; Halsey v. Brother

hood, supra (patent; in Wren v. Weild the action is said to be of a new kind, but sustainable with proof of malice); Steward v. Young (1870), L. R. 5 C. P. 122, 39 L. J. C. P. 85 (title to goods); Dicks v. Brooks (1880), 15 Ch. D. 22, 49 L. J. Ch. 812 (copyright in design), see 19 Ch. D.

391.

ment was not enforceable for want of satisfying the Statute of Frauds (1)

A disparaging statement concerning a man's title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business: in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving malice (i).

It has been held in Massachusetts that if A. has exclusive privileges under a contract with B., and X. by purposely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A. (k). In that case the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers' caps, so as to suggest that they were authorized and employed by the hotel-keeper to ply between the hotel and the railway station; and there was some evidence of express statements by the defendants' servants that their coach was "the regular coach." The plaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defendants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way; but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representation and the special rules as to the infringement

(h) Benton v. Pratt (1829), 2 Wend. 385; Rice v. Manley (1876), 66 N. Y. (21 Sickels) 82.

(i) See Thorley's Cattle Food Co. v.

Massam (1879), 14 Ch. Div. 763; Dicks v.
Brooks, last note but one.

(k) Marsh v. Billings (1851), 7 Cush. 322, and Bigelow L. C. 59.

of rights to a trade mark or trade name (7). No English case much like it has been met with: its peculiarity is that no title to any property or to a defined legal right was in question. The hotelkeeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of goodwill, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of protection, since it exists by virtue of some express contract which affords a more convenient remedy. Some years ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law (m).

Trade marks and trade names. The protection of trade marks and trade names was originally undertaken by the courts on the ground of preventing fraud (n). But the right to a trade mark, after being more and more assimilated to proprietary rights (o), has become a statutory

(1) The instructions given at the trial (Bigelow L. C. at p. 63) were held to have drawn too sharp a distinction, and to have laid down two narrow a measure of damages, and a new trial was ordered. It was also said that actual damage need not be proved, sed qu.

(m) Day v. Brownrigg (1878) (reversing Malins V.-C.), 10 Ch. Div. 294, 48 L. J. Ch. 173.

(n) See per Lord Blackburn, 8 App Ca. at p. 29; Lord Westbury, L. R. 5 H. L. at p. 522; Mellish L. J., 2 Ch. D. at p. 453.

(0) Singer Manufacturing Co. v. Wilson (1876), 2 Ch. D. 434, per Jessel M. R. at pp. 441-2; James L. J. at p. 451; Mellish L. J. at p. 454.

Trade-marks and patent rights. An action for slander of title to letters-patent may be maintained. Meyrose v. Adams, 12 Mo. Ap. 329; Andrews v. Deshler, 45 N. J. L. 167. In order to make out a case of deceit based on a trade-mark it must appear (1) that the defendant knew of the existence of the plaintiff's mark when he committed the alleged wrong; (2) that defendant intended to palm off these goods as the goods of the plaintiff, or to represent that the business which he was carrying on was the plaintiff's or the business of which the plaintiff had a special patronage; (3) that the public were deceived thereby. Bigelow on Torts, 36.

franchise analogous to patent rights and copyright (p); and in the case of a trade name, although the use of a similar name cannot be complained of unless it is shown to have a tendency to deceive customers, yet the tendency is enough; the plaintiff is not bound to prove any fraudulent intention or even negligence against the defendant (9). The wrong to be redressed is conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here.

III.-Malicious Prosecution and Abuse of Process. Malicious prosecution. We have here one of the few cases in which proof of evil motive is required to complete an actionable wrong. "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent

(p) Patents, Designs, and Trade Marks Act, 1883, 46 & 47 Vict. c. 57.

(q) Hendriks v. Montagu (1881), 17 Ch.

Div. 638, 50 L. J. Ch. 456; Singer Manufacturing Co. v. Loog (1882), 8 App. Ca. 15.

;

Malicious prosecution. The numerous American authorities upon this subject agree with the text, vide, Shaul v. Brown, 28 Iowa, 42; 4 Am. Rep. 151; Ball v. Rawles, 93 Cal. 228; 28 Pac. Rep. 937; Tucker v. Cannon, 28 Neb. 196; 44 N. W. Rep. 440; Peterson v. Toner, 80 Mich. 350; 45 N. W. Rep. 346; Cooper v. Langway, 76 Tex. 121; 13 S. W. Rep. 179; Pace v. Aubrey, 43 La. An. 1052; 10 So. Rep. 381; Bennett v. Aubrey, Id. Shannon v. Jones, 76 Tex. 141; 13 S. W. Rep. 477; Taylor v. Dominick, 36 S. C. 368; 15 S. E. Rep. 591; Jones v. Jenkins, 3 Wash. St. 17; 27 Pac. Rep. 1022; McCormack v. Perry, 47 Hun, 71; Rosenberg v. Hart, 36 Ill. App. 262; Heyne v. Blair, 62 N. Y. 19; Ex parte Wilson, 114 U. S. 417; Bartlett v. Brown, 6 R. I. 37; Pierce v. Thompson, 6 Pick. 192; Cook v. Walker, 30 Ga. 519; Ray v. Law, 1 Pet. 207; Stocking v. Howard, 73 Mo. 25; Whitson v. May, 71 Ind. 105; Green v. Cochran, 43 Ia. 544; Everett v. Henderson, 146 Mass. 93; Girot v. Graham, 41 La. An. 511; 6 So. Rep. 815; Jones v. Jones, 71 Cal. 89; 11 Pac. Rep. 817; Bidwell v. Osgood, 3 Pick. 379; 15 Am. Dec. 228; Bixby v. Brundage, 2 Gray, 129; 61 Am. Dec. 443; Marshall v. Betner, 17 Ala. 832; Whiting v. Johnson, 6 Gray, 246; Stancliff v. Palmeter. 18 Ind. 324; Bailey v. Dodge,