The doctrine of Malachy v. Soper, that a misrepresentation of the plaintiff's present title, though often called slander of title, stands upon the same footing with other actions for false representations, is well settled. See Gutsole v. Mathers, 1 Mees. & W. 501; Brook v. Rawl, 4 Ex. 524; Pater v. Baker, 3 Com. B. 831; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 4 Keyes, 397; Hill v. Ward, 13 Ala. 310; Paull v. Halferty, 63 Penn. St. 46; Swan v. Tappan, 5 Cush. 104.

That this is true as to the necessity of proving special damage, has been conceded from early times. Law v. Harwood, Croke Car. 140. But the language of the judges in certain recent cases may convey the impression that the doctrine of implied malice belongs to actions of this kind as well as to actions for personal defamation; though the cases themselves do not decide the point. Wren v. Weild, Law R. 4 Q. B. 730; Steward v. Young, Law R. 5 C. P. 122; Hill v. Ward, 13 Ala. 310.

Before considering these cases, it is to be remembered that in actions for defamation by slander or libel the law raises a presumption of malice in the defendant, and casts the burden of proof upon him to relieve himself. In actions for false representations, however, as we have seen in the note to Pasley v. Freeman, the burden rests upon the plaintiff of proving that the

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defendant made the statement fraudulently as well as falsely; and the question now is, to which of these cases the action of slander of title belongs.

In Wren v. Weild, supra, it was merely decided, as it had often been decided before, that no action lies against a party for falsely asserting a claim to property, by which the plaintiff loses a sale. In the course of the judgment, Mr. Justice Blackburn says: "There is a well-known action for slander of title, where an unfounded assertion that the owner of real property has not title to it if made under such circumstances that the law would imply malice, or if express malice be proved, and special damage is shown .. - is held to give a cause of action." The case, however, explains this language, as we shall see, and removes the impression it might at first convey.

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Steward v. Young, supra, was a case of the same kind; and Bovill, C. J., said: "I think the occasion of the speaking the alleged slander was one which brought it within the rule as to privileged communications. ... The prima facie presumption of malice being rebutted, the onus of proving malice lay upon the plaintiff" And the language of the other judges in this case, and of the court in Hill v. Ward, supra, is much to the same effect.

The decision of Lord Ellenborough in Pitt v. Donovan, 1 Maule & S. 639,

is often referred to; but though that distinguished judge there says that the jury must arrive at their conclusion through the medium of malice or no malice, he so explains his meaning as to show that he did not use the term in the sense in which it is employed in the law of slander and libel. The question was, whether the defendant's honesty in warning against the plaintiff's title was the proper criterion of liability; and he held that it was. "If," said he, "what the defendant has written be most untrue, but, nevertheless, he believed it, if he was acting under the most vicious of judgments, yet if he exercised that judgment bona fide, it will be a justification in this case." And again: "The question, then, distinctly and substantively is, whether, in the communication which he made, he acted bona fide. I am aware that there are many things reprehensible in the letters, but they are no slander of the title if he believed them."

Now, it is to be remembered that, in the action for defamation of character, it is no defence that the party believed that what he said of the plaintiff was true. Campbell v. Spottiswoode, 3 Best & S. 769. The question in Pitt v. Donovan, however, did not involve the matter of the burden of proof, and the point was not mentioned in the case.

The earliest case that we have found in which malice is spoken of as essential to this action is Goulding v. Herring, 3 Keb. 141, pl. 11, A D. 1685. It was there agreed that the defendant claimed title, yet if it were found by verdict to be done malitiose, the action lay; but if upon the evidence any probable cause of claim appeared, it ought not to be found malitiose.

Gerard v. Dickenson, 4 Coke, 18, tried about a hundred years earlier,

seems decisive against this connection of malice with actions for slander of title. In that case, the defendant had prevented the sale of a lease by the plaintiff, by representing to the intended purchaser that she (the defendant) held a lease of the premises for ninety years. The declaration alleged that the lease of the defendant was a forgery, and that she knew it. The defendant traversed the knowledge of the forgery. The court resolved that if the defendant had merely set up a claim to the premises, though the claim were false, no action lay; but because it was alleged in the declaration that the defendant knew of the intended making of the lease, and also knew that her own lease was forged and counterfeited, and yet, against her own knowledge, had affirmed and published that it was a good lease, the action was maintainable. The bar was held insufficient, for the defendant's knowing of the forgery was not traversable; as in an action upon the case because the defendant's dog has bit the plaintiff's cattle, ipse sciens canem suum ad mordendas oves consuetum, the sciens is not traversable, but ought to be proved in evidence upon the general issue, for sciens is no direct allegation, nor ever alleged in any place, so that it is not traversable nor triable." The editor of Coke, in a note to this point, says that the general issue is in fact a traverse of the sciens, for unless, in the case put, the plaintiff prove that the defendant knew his dog to be accustomed to bite sheep, his cause of action falls to the ground.

Here, then, is a case, often cited as a leading authority, in which no mention is made of malice, and the point decided that it is a part of the plaintiff's case to prove that the slander was false to the

was requisite to sustain the action. The declaration is framed with reference to that view of the law." Maule, J., said directly that, unless the plaintiff in actions for slander of title showed falsehood and malice, and an injury to himself, he had no case to go to the jury.

The case of Wren v. Weild, above referred to (p. 54), though in the extract given the court speak of implied malice, is also in reality opposed to the notion that this action of slander of title is allied to the action of slander. The opinion shows that by "implied malice " was meant circumstances to be proved by the plaintiff from which the inference of malice could be drawn. "If," said the court, “the plaintiffs had given evidence on which the jury might properly find that the defendant made the communication to the intended purchasers mula fide, and without any intention to institute legal proceedings at all against the purchasers,' . . . we are inclined to think that it would have been proper to leave that evidence to the jury in support of the plaintiff's allegation that the defendant's letter was false and malicious; the question whether that is enough without an express allegation of knowledge or want of reasonable and probable cause being on the record." And again: "We think the action could not lie, unless the plaintiffs affirmatively proved that the defendant's claim was not a bona fide claim in support of a right which, with or without cause, he fancied he had; but a mala fide and malicious attempt to injure the plaintiffs by asserting a claim of right against his own knowledge that it was without foundation."

In this country the same decision has been reached in Kendall v. Stone, 2 Sandf. 269; in McDaniel v. Baca, 2 Cal. 326; and in Stark v. Chetwood, 5 Kans. 141.

Kendall v. Stone was, indeed, reversed in the Court of Appeals (5 N. Y. 14), but not on this point. There was no doubt, the court observed (2 Sandf. 284), that sufficient words and damage (upon which last point the case was reversed) had been shown to sustain the action, provided malice had been established. "This was a question of fact, and was fairly submitted to the jury. The whole charge proceeds on the ground, that if the defendant honestly believed what he communicated to Wheeler, and cautioned him in a fair spirit, he was not liable; but if he made the communication with a different spirit, to prevent the sale to Wheeler, so as to enable the defendant to get the plaintiff's property himself for less than its value, or from any other impure or corrupt motive, then he must be deemed to have spoken the words maliciously. We see nothing excep tionable in this view of the charge. . . . The plaintiff assumes the burden of proving not only special loss, but actual malice; not that malice which the law implies in ordinary actions for defamation of the person, but actual, express malice."

In McDaniel v. Baca, supra, the court below had instructed the jury that "where a person injuriously slanders the title of another, malice is presumed;" and this instruction was pointedly overruled.

If these cases were not conclusive that the doctrine of the presumption of

malice in actions for slander has no place in actions for slander of title, it might be shown to be highly probable from the fact that the connection of malice with the law of slander is, as we have seen, to be traced to the canon law. When slander was a matter of cognizance in the spiritual courts, malitia was considered essential to the action; but slander of title was always a temporal cause, and therefore was probably never cognizable in the spiritual courts. See Palmer v. Thorpe, 4 Coke, 20, where it was held that to defamation in the ecclesiastical courts there were three incidents: 1. That it concerns matter merely of ecclesiastical cognizance, as for calling one heretic, adulterer, &c.; 2. That it concerns matter merely spiritual; for if it relate to any thing determinable at common law, the ecclesiastical judge shall not have cognizance thereof; 3. That the party cannot sue there for damages, but only for punishment of sin.

This will probably account for the fact that in all the English cases there has never been an express decision that the speaking of injurious words of one's title raises a presumption of malice. Had slander of title come from the spiritual courts, it is altogether likely that the action would have been assimilated to the action for defamation. But the fact that the action has from early times been called slander of title has, no doubt, given rise to the use of the term "malice," and caused the courts sometimes to say that malice is the gist of the action. This malice, however, seems merely to be a knowledge of the falsity of the words, coupled with an intention to injure the plaintiff, or to prevent him from making a bargain. If the words are spoken with an honest motive to protect or save the rights of

the defendant, though perhaps he may not have good grounds to support his claim (see Wren v. Weild, supra), there is no malice; and the action fails.

The action for slander of title is therefore more nearly allied to actions for false representations, like Pasley v. Freeman; and it is safe to say that a declaration framed after the manner of declarations in those cases would be consistent with evidence of slandering the plaintiff's title.

Originally actions for slander of title were brought only for words affecting the title to the plaintiff's real property; but this was perhaps owing to the circumstance that in early times personal property was regarded as of but little importance, and actions concerning it were infrequent. But the leading case shows that the action has in modern times been extended to matters concerning personalty. See also Wren v. Weild, Law R. 4 Q. B. 730; Snow v. Judson, 38 Barb. 210.

There has been some disposition also to confine this action to words affecting the plaintiff's title. See Young v. Macrae, 3 Best & S. 264, 269, where Blackburn, J., in the course of the argument, says: Is there any case where an action has been maintained for slander, written or verbal, of goods, unless where the slander is of the title to them, and special damage has resulted?" And Cockburn, C. J. says: "Not one of us recollects such an action in the course of his experience." But on giving judgment, the Chief Justice said: “I am far from saying that if a man falsely and maliciously makes a statement disparag ing an article which another manufactures or vends, although in so doing he casts no imputation on his personal or professional character, and thereby causes an injury, and special damage is