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CHAPTER II

2. Lawful Acts done of Malice

SLANDER OF TITLE

Statement of the duty. A owes to B the duty not to disparage B's property, to B's damage, by false and malicious representations.

Slander of title was the name originally of an action for false and disparaging representations in regard to the plaintiff's title to land; but in recent times the action and name have been extended to false and disparaging statements in regard to property of every kind, and that too whether the statements relate to title or to quality1.

The only real connection the action has with actions for slander (or libel) is in the name the action bears and in the structure of the ancient declaration, which in following the declaration in slander has followed a misleading analogy.

§ 1. WHAT MUST BE PROVED

The plaintiff in actions at law for slander of title has to prove that the statements are false, that they were made with malice, and that they have been followed by damage. Of two of the elements of this action,

Falsity.

1 Malachy v. Soper, 3 Bing. N. C. 371 (title to personalty); Gott v. Pulsifer, 122 Mass. 235 (quality of personalty, 'Cardiff Giant').

2 Malachy v. Soper, 3 Bing. N. C. 371; Pater v. Baker, 3 C. B. 831, 868. See Mellin v. White, 1894, 3 Ch. 276, C. A.

the falsity of the representations and damage, it will be enough to refer to what has been said of the same things in the chapter on Deceit; there is no difference between the two wrongs in those particulars. In regard to malice too, what has been said in another place1 may be referred to; but a few words should be added here.

Actual malice required.

§ 2. MALICE

The malice which must be proved in slander of title is 'actual' malice, in the sense indeed of a state of the mind, but not necessarily in the sense of motive. It is no doubt true that to prove an evil motive for the false representations will (with damage) make a prima facie case of 'actual' malice in the sense of the rule, and that that would presumptively overturn the permission or privilege to make the false representations,—for it must be remembered that there can be no legal right to make such representations2. But still there is reason to believe that the effect of the evidence would be overturned by proof that the defendant believed what he said to be true and said it in good faith, however much he may also have wished to harm the plaintiff. A may make a false claim to property held by B, believing his claim to be true, and in good faith assert his intention to make good the claim, hoping at the same time to ruin B in the contest, in hatred of him3. At any rate it is laid down that belief and good faith on the part of the defendant will

1 Ante, pp. 18-22.

2 That the case is one of permission or privilege only, see Halsey v. Brotherhood, 19 Ch. D. 386; Wren v. Weild, L. R. 4 Q. B. 730; Gott v. Pulsifer, 122 Mass. 235.

3 See Wren v. Weild, L. R. 4 Q. B. 730, 734, Blackburn, J., for the court: 'Where a person claims a right in himself which he intends to enforce against a purchaser, he is entitled, and indeed in common fairness bound, to give the intended purchaser warning of such his intention. . . . And consequently we think no action can lie for giving such preliminary warning, unless either it can be shown that the threat was made mala fide, only with the intent to injure the vendor, and without any purpose to follow it up by an action against the purchaser, or that the circumstances were such as to make the bringing an action altogether wrongful.' The qualifying words 'unless . . purchaser' plainly imply that if there was a real purpose to follow up the claim by an action, it would not matter that the claim was also made to injure the plaintiff.

be a defence to the prima facie case. For example: The defendant, to the damage of the plaintiff, falsely states to a third person, with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's title to the property will sooner or later be contested'; that when the lands were sold to the plaintiff the vendor 'was not in a state of soundness or competency.' The defendant made this statement in good faith, believing it to be true. This is no breach of duty to the plaintiff1.

Motive.

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Further, though it is true that to prove an evil motive makes a prima facie case of the malice required, it is also true that the plaintiff is not bound to prove anything of the kind. It is well settled that it is enough for the plaintiff to prove that the defendant made the false representations with knowledge that they were false or in reckless disregard of the consequences of making them. For example: The plaintiff in his declaration alleges that the defendant made a claim falsely and maliciously and without probable cause, knowing that he had no claim, to goods of the plaintiff, to the plaintiff's damage. The declaration is good; knowledge of the baselessness of the claim would be sufficient evidence of malice. Again: The defendant is sued in slander of title for publishing in a newspaper, of which he is proprietor, false and disparaging statements concerning a statue owned by the plaintiff, called the Cardiff Giant. The judge instructs the jury that the plaintiff must prove that the statements were made with a disposition wilfully and purposely to injure the value of the statue, with wanton disregard of the interest of the owner. The instruction is erroneous; the plaintiff need only prove that the statements were made with a reckless disregard of the plaintiff's rights and of the consequences to him3.

1 Pitt v. Donovan, 1 Maule & S. 639; Wren v. Weild, supra.

2 Green v. Button, 2 Cromp. M. & R. 707; Wren v. Weild, L. R. 4 Q. B. 730, 734.

3 Gott v. Pulsifer, 122 Mass. 235, Gray, C. J.: 'Malice in uttering false statements may consist either in a direct intention to injure another or in a reckless disregard of his rights and of the consequences that may result to him.' Hibbs v. Wilkinson, 1 F. & F. 608, 610; Paris v. Levy, 2 F. & F. 71, 74; s. c. 9 C. B. N. s. 342, 350; Strauss v. Francis, 4 F. & F. 1107, 1114.

Relation of fraud to malice.

It will accordingly be noticed that what is required in the name of malice in the law of slander of title is satisfied by proof of what is called fraud, in the narrower sense, in the law of deceit, to wit, knowledge of falsity, or falsity with recklessness of consequences1. Whether the other methods of proving fraud in deceit2 would satisfy the law of slander of title in regard to malice does not appear. But it is clear that fraud and malice are not synonymous terms. Fraud taken in its broad sense signifies something more than a state of mind; as we have elsewhere seen, it imports means employed, while malice as an entity, in whatever sense, is only a state of the mind.

Though the term 'fraud,' then, as the word is commonly used in deceit, is here an interchangeable term with malice, and though in regard to falsity and damage deceit and slander of title are in accord, that is all that can be said. At that point we come to an end of slander of title, but not of deceit. Several other elements of liability would be required to make a case of deceit, which in the nature of things could not belong to the present wrong,-ignorance of the plaintiff and intention that the plaintiff should act upon the misrepresentations. Slander of title has therefore a place of its own, as a distinct wrong, in the law of torts.

1 Ante, p. 64.

2 Id.

B. T.

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CHAPTER III

2. Lawful Acts done of Malice, concluded

MALICIOUS PROSECUTION

Statement of the duty. A owes to B the duty not to institute against him a prosecution, with malice and without reasonable and probable cause, for an offence falsely charged to have been committed by B.

When a termination of prosecution is referred to without further explanation, such a termination is meant as will, in connection with the other elements of the action, permit an action for malicious prosecution.

The word 'prosecution' includes such civil actions as may be the subject of a suit for malicious prosecution.

The term 'probable cause' is used for brevity, in this chapter, for reasonable and probable cause1.'

Civil redress for malicious prosecutions is of statutory origin. Before the thirteenth year of Edward the First there was no sufficient restraint against such perversions of justice; the provision of Magna Carta in regard to imprisonment and dispossession of lands was little more than a declaration of right. But in the year mentioned two statutes were passed which, though long since obsolete and forgotten as statutes, struck their roots deep and have had a permanent influence on

1 There may be some slight difference in meaning in special cases, between 'reasonable' and 'probable' cause. See the language of Tindal, C. J., in Broad v. Ham, 5 Bing. N. C. 722, 725, quoted in Lister v. Perryman, L. R. 4 H. L. 521, 530, 540. Ordinarily however the words are synonymous.

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