Declaration. It is not necessary that the defendant should actually have an interest in the land; if he supposes himself to have an interest, it is sufficient to excuse the speaking of the words. (a) A lease, in which was a proviso for re-entry, if the rent were in arrear twenty-eight days, being exposed to sale by the assignee, and rent being then in arrear, the lessor announced at the sale, that the vendors could not make a title, in consequence of which, bidders who came to buy, went away. The lessor, afterwards, offered 1007. for the lease, but subsequently recovered the premises in ejectment; it was held, that no action for slander of title lay against him. (b) So in an action for slander of title conveyed in a letter to a person about to purchase the estate of the plaintiff, imputing insanity to Y. from whom the plaintiff purchased it, and that the title would therefore be disputed per quod the person refused to complete the purchase, it was held, that the defendant, who had married the sister of Y., who was heir at law to her brother in the event of his dying without issue, was not to be considered as a mere stranger, and that the question for the jury was, not whether they were satisfied as men of good sense and good understanding, that Y. was insane, or that the defendant entertained a persuasion, that he was insane, upon such grounds as would have persuaded a man of sound sense and knowledge of business, but whether he acted bonâ fide in the communication which he made, believing it to be true, as he judged according to his own understanding, and under such impressions as his situation and character were likely to beget. (c) The declaration commences with an allegation of the plaintiff's title to the land. (d) And where it stated, that the plaintiff was lawfully possessed of certain mines and ore gotten, and to be gotten from them, it was held sufficient, unless upon special demurrer. (e) Where the slander is contained in an advertisement, it seems sufficient to allege, that the defendant published a malicious, injurious, and unlawful advertisement, without using the word false. (f) The declaration must allege some special damage, as, that by the speaking of the words the plaintiff could a. (a) Gerard v. Dickenson, 4 Rep. 18, (b) Smith v. Spooner, 3 Tannt. 246. (d) See forms, 3 Chitty's Pl. 361. 8 Went. 297. (e) Rowe v. Roach, 1 M. and S. 304. (f) Ibid. not sell or let the lands; for without special damage this action will not lie. (a) And it is not sufficient to state an intent to make a voluntary settlement, in which the plaintiff has been hindered by the speaking of the words. (b) To allege by way of special damage, that the plaintiff has lost the sale of his lands, is too general. (c) Where the defendant has spoken the words, claiming an interest in the property, or as the agent of a person claiming an interest, he need not plead this matter specially, but may give it in evidence, under the general issue. (d) The plaintiff must be prepared to prove malice, which is the gist of the action. (e) And where a person who is not a mere stranger, is sued in an action of this kind, two things are to be made out: first, that there is a want of probable cause; and, secondly, that the party who made the communication acted maliciously. (f) As the action cannot be maintained where the defendant speaks the words bonâ fide claiming an interest, although in fact he is not interested, it is not necessary for him to prove any title. (g) The interest or estate of the plaintiff in the property, concerning which the words are spoken, must be proved as averred; and, therefore, where it appeared by the declaration, that the plaintiff had a certain interest in the premises, and that by an agreement between himself and the defendant, from whom he derived that interest, he had a clear right to dispose of the whole of that interest; but only a doubtful right to dispose of any portion of it; and the plaintiff averred, that he put up his said interest to auction, and that the defendant published a libel of, and concerning, his right to sell the said interest, the evidence being, that he offered for sale a portion of that interest only, it was held, that this was a fatal variance. (h) As the action is not sustainable without special (a) Ante, p. 390. (b) Smead v. Badley, Cro. Jac. 397. 1 Rol. Rep. 244 S. (c) Lowe v. Harewood, Sir W. Jones, 196. (d) Hargrave v. Le Breton, 4 Burr. 2422. Smith v. Spooner, 3 Taunt. 255. (e) Per Lawrence, J. in Smith v. Spooner, 3 Taunt. 255. (f) Per Bayley, J. in Pitt v. Donovan, 1 M. and S. 649. (g) Per Mansfield, C. J. in Smith v. Spooner, S Taunt. 255. (h) Millman v. Pratt, 2 Barn, and Cres. 486. It should be observed, that this was an action against a party who was interested in the premises and not a mere wrong doer. Plea. Evidence. 394 Action on the Case for Slander of Title. damage, the plaintiff must prove such damage as stated in his declaration. (a) And he will be entitled to costs, though the damages are under 40s. for this action is not within the statute 21 Jac. c. 16. (b) ` (a) Browne v. Gibbons, 1 Salk. 206. (b) Ibid. Lawe v. Harwood, Cro. Car. 141. Assumpsit on Sale of Real Property. If the vendee of real property refuse to perform the contract, an action of assumpsit, if the contract is not under seal, will lie against him for the breach of it. Vendor v. tute of frauds. By the fourth section of the statute of frauds, 29 C. 2, c. 3, Agreements for no action shall be brought, whereby to charge any person upon sale of lands any contract or sale of lands, tenements, or hereditaments; or within the staany interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised. (a) are within the An agreement for a mere easement in lands or tenements, or What interests a licence to be exercised on lands, as a licence to stack coals (b), a licence to occupy a box at the opera (c), or a licence to put a statute. skylight over the defendant's area, whereby the plaintiff's window is darkened (d), is not within the statute. An agreement for the purchase of a crop of mowing grass growing in a close of the defendant, the grass to be mowed and made into hay by the plaintiff, and no time fixed for the commencement of the mowing, was held to be a contract for the sale of an interest in or concerning land; and, therefore, within the statute. (e) So where growing turnips were sold, but no particular time was stated for their removal, nor did it appear what the degree of their maturity was, the court held it to be a sale of interest in land, within the statute. (f) But in another case, where one party agreed to sell another a crop of potatoes in a close, at so much the sack, to be got immediately, the court considered the contract to be confined to the sale of the potatoes, and that it did not convey an interest in the soil, but merely an ease (a) See Mr. Sugden's remarks on this clause, Law of Vend. and Purch. 65, 6th edit. (b) Wood v. Lake, Say. 3. Webb v. Paternoster, Palnı. 71. 2 Rol. Rep. 152, S. C.; but see Sugd. V. and P. 69. 6th edit. 2 Phil. Evid. 64, (n), 6th edit. (c) Tayler v. Waters, 7 Taunt. 374. 2 Marsh. 551, S. C. (d) Winter v. Brockwell, 8 East, 308. (e) Crosby v. Wadsworth, 6 East, 602. 2 M. and S. 208. 11 East, 366. (ƒ) Emerson v. Heelis, 2 Taunt. 38. Vendor v. 4th sec. of stat. of frauds. The agreement. ment. (a) So where the contract was for all the potatoes then growing on a certain quantity of land, at so much per acre, to be dug and carried away by the purchaser, the court held, that the potatoes were the subject matter of the sale, and that the contract was for a mere chattel. (b) The word agreement, used in the statute, must be understood in its proper and correct sense, and the consideration of the promise therefore, which is part of the agreement, must be in writing as well as the promise itself. (c) A letter, therefore, by one of the contracting parties, admitting that he has made a parol agreement, but not specifying the terms, is not sufficient to charge him. (d) Nor can the agreement be enforced, unless both the contracting parties are named in it. (e) It is not necessary that all the terms or essential parts of the agreement should be contained in a single paper. The statute only enacts, that they shall be in writing, and does not require them to be specified by a single instrument. It is, therefore, the common practice to establish contracts by the evidence of several writings; and those writings need not be contemporaneous with the contract. They ought, however, to be connected, or to have a plain reference to each other by their context, or at least by writing; they cannot be connected by mere parol evidence. (f) But where the agreement refers to another writing, parol evidence may be admitted to prove the identity of the writing. (g) If a letter be relied upon to complete an agreement, it must recognise and adopt it; for, if it falsify the contract, proved by the parol testimony, it will not take the case out of the statute. (h) The statute expressly requires the agreement or the memorandum or note of it to be signed. The object of the signing is to («) Parker v. Staniland, 11 East, N. R. 252, the latter case on the 17th 362. (b) Warwick v. Bruce, 2 M. and S. 205. 1 B. and C. 25. (c) Wain v. Warlters, 5 East, 10. Saunders v. Wakefield, 4 B. and A. 595. Jenkins v. Reynolds, 3 B. and B. 14. (d) Seagood v. Meale, Prec. Ch. 560. (e) Charlewood v. D. of Bedford, sec. (ƒ) 2 Phil. Evid. 79, 6th edit. citing 1 Ves. Jun. 326. 1 Scho, and Lef. 35. 9 Ves. 250. 12 Vés. 471. 11 East, 157. Gordon v. Trevelyan, 1 Price, 64. Ogilvie v. Foljambe, 3 Meriv. 61. Hughes v. Gordon, 1 Bligh, 287. (g) Clinan v. Cooke, 1 Sch. and Lef. 33. 12 Ves. 471. Gordon v. Trevelyan, 1 Price, 64. Sug. Vend. and Pur. 79, 6th edit. (h) Cooper v. Smith, 15 East, 105. |