Note 467 — INDEX

288. Eastern Tel. Co. v. Capetown Tramways Cos., [1902] A. C. 381; Midwood v. Manchester Corporation, [1905] 2 K. B. 597; Charing Cross Co. v. London Hydraulic Power Co., [1913] 3 K. B. 442, [1914] 3 K. B. 772; Brennan Construction Co. v. Cumberland, 29 App. D. C. 554 (crude petroleum in tank); Shipley v. Associates, 106 Mass. 194; Cahill v. Eastman, 18 Minn. 324; Wiltse v. Red Wing, 99 Minn. 255 (reservoir); French v. Carter Creek Mfg. Co., 173 Mo. App. 220 (stored nitroglycerine); Defiance Water Co. v. Olinger, 54 Ohio St. 532; Bradford Co. v. St. Mary’s Co., 60 Ohio St. 560 (stored nitroglycerine); Langabaugh v. Anderson, 68 Ohio St. 131 (crude petroleum in tank); Texas R. Co. v. Frazer (Tex. Civ. App.) 182 S. W. 1161 (dam); Weaver Mercantile Co. v. Thurmond, 68 W. Va. 530 Accord. See Wing v. London General Omnibus Co., [1909] 2 K. B. 652.

“In every case of the kind which has been reported since Rylands v. Fletcher, that is, during the last 25 years, there has been a manifest inclination to discover something in the facts which took the case out of the rule. According to the English judicial system which has gone round the world with the English language and English or Anglicized institutions, the decisions of superior courts are not merely instructive and worthy of regard, but of binding authority in subsequent cases of the like sort. But there are some authorities which are followed and developed in the spirit, which become the starting-point of new chapters of the law; there are others that are followed only in the letter, and become slowly but surely choked and crippled by exceptions. This again, is independent of the considerations of local fitness which must always have weight when precedents are cited from a country remote both in place and in manners.” Pollock, Law of Fraud in British India, 53–54 (1894).

“In August, 1908, Count Z. sent one of his dirigibles from Mainz to Friederickshafen. Some motor trouble happened, and the ship was landed in a field. Thousands of people rushed to the place, so ropes were run around it, and soldiers were ordered on guard. The ship was anchored, and in addition held by forty men with ropes at the stem, and by thirty at the stern. In the afternoon a sudden thunderstorm came up, struck the dirigible, tore it loose and sent it adrift for about a mile, when it caught fire and was destroyed.

Spectators had been around all the time, and were standing outside the ropes in rows several deep. Some unfortunate person standing in the outer row near the rear gondola, was caught by the ship’s anchor, dragged into the air and carried for some distance; in the fall, one of his legs sustained such injuries that it had to be amputated.

He brought suit for damages, and was nonsuited; appealed; same result. Finally, he appealed to the Reichsgericht. It refused to interfere, for the following reasons: There being no special law governing damage by air-navigation, it becomes necessary to prove negligence on the part of the aviator or promoter. The idea that the mere undertaking of a business, acknowledged to be dangerous, carries with it responsibility for all damage caused thereby, is not law. The only duty which the hazardousness of the undertaking imposes upon the person engaged therein, is that of extra care. Otherwise, almost all kinds of transportation would be impossible.

In this case, the trip had commenced during exceptionally fine weather, which continued until after the time when the ship had been landed and anchored. Defendant had proved that on former occasions he had succeeded in landing, anchoring and holding his ship, even when the weather was unfavorable, and that the means he on such occasions had employed in keeping the ship at its moorings, were not any stronger than those employed on this occasion; in fact, they were weaker. It could not be demanded of the defendant that he should anticipate and provide against such an extraordinary violent gust of wind as tore his airship away.” 75 Central Law Journ. 311 (1912).

In Charing Cross Co. v. London Hydraulic Power Co., [1914] 3 K. B. 772, hydraulic mains under the streets burst and injured plaintiff’s cables, also laid in the streets. Lord Sumner said (pp. 779–780): “I think that this present case is also indistinguishable from Rylands v. Fletcher. Two grounds of distinction have been suggested. It is said that the doctrine of Rylands v. Fletcher is applicable between the owners of adjacent closes, which are adjacent whether there be any intermediate property or not; and that it is a doctrine depending upon the ownership of land and the rights attaching to the ownership of land, under which violations of that species of right can be prevented or punished. In the present case instead of having two adjacent owners of real property, you have only two neighboring owners, not strictly adjacent, of chattels, whose chattels are there under a permission which might have been obtained by the private license of the owners of the soil, though in fact obtained under parliamentary powers; hence the two companies are in the position of co-users of a highway, or at any rate of co-users of different rooms in one house, and Rylands v. Fletcher does not apply. The case depends on doctrines applicable to the highways, or to houses let out in tenements. I am unable to agree with any of these distinctions, though they have been pressed upon us by both learned counsel with great resource and command of the authorities. Midwood v. Manchester Corporation, [1905] 2 K. B. 597, is not decided as a case of a dispute arising between the owners of two adjacent closes. The case is treated as one between a corporation, whose business under the roadway is exactly similar to that of the defendant corporation here, and injured occupiers of the premises. If the distinction drawn between the present case and that of adjacent landowners in Rylands v. Fletcher be a good one, it either was not taken in Midwood v. Manchester Corporation or was taken and treated as of no importance. Further I am satisfied that Rylands v. Fletcher is not limited to the case of adjacent freeholders. I shall not attempt to show how far it extends. It extends as far as this case, and that is enough for the present purpose.”

See Thayer, Liability Without Fault, 29 Harv. Law Rev. 801; Bohlen, The Rule in Rylands v. Fletcher, 59 University of Pennsylvania Law Rev. 298, 373, 423; Wigmore, Responsibility for Tortious Acts: Its History, 7 Harv. Law Rev. 315, 383, 442.

Liability in case of customary or statutory duty or authority to use land as defendant did, see Madras R. Co. v. Zemindar, L. R. 1 Ind. App. 364; Green v. Chelsea Waterworks Co., 70 L. T. 547; Price v. South Metropolitan Gas Co., 65 L. J. Q. B. N. S. 126; City v. Bridgeport Hydraulic Co., 81 Conn. 84.

289. Argument abridged.

290. The judgment of the Court below, read by Bramwell, B., states the finding thus: “In this case I understand the jury to have found that all reasonable care had been taken by the defendant, that the banks were fit for all events to be anticipated, and the weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major.”

291. See Salmond, Torts (4 ed.) § 65.

292. Arguments omitted.

293. See Carstairs v. Taylor, L. R. 6 Ex. 217; Wilson v. Newberry, L. R. 7 Q. B. 31; Rickards v. Lothian, [1913] A. C. 263.

294. Actiesselskabet Ingrid v. Central R. Co., (C. C. A.) 216 Fed. 72 (explosives); Judson v. Giant Powder Co., 107 Cal. 549 (explosives); Lake Shore R. Co. v. Chicago R. Co., 48 Ind. App. 584 (semble); Owensboro v. Knox, 116 Ky. 451 (electricity); Murphy v. Gillum, 73 Mo. App. 478 (semble); Losee v. Buchanan, 51 N. Y. 476 (boiler); Cosulich v. Standard Oil Co., 122 N. Y. 118 (petroleum); Huff v. Austin, 46 Ohio St. 386 (boiler); Pennsylvania Coal Co. v. Sanderson, 113 Pa. St. 126 (semble); Sowers v. McManus, 214 Pa. St. 244 (explosives); Davis v. Charleston R. Co., 72 S. C. 112 (boiler) Accord.

Bursting of dam, see: Alabama Coal & Iron Co. v. Turner, 145 Ala. 639; Todd v. Cochell, 17 Cal. 97; Shrewsbury v. Smith, 12 Cush. 177; City Water Power Co. v. City, 113 Minn. 33; King v. Miles City Co., 16 Mont. 463; Livingston v. Adams, 8 Cow. 175; Lapham v. Curtis, 5 Vt. 371. Compare Pennock v. Central R. Co., 159 App. Div. 517.

As to constitutionality of legislation imposing liability without fault, see City v. Sturges, 222 U. S. 313, 322; Pittsburgh R. Co. v. Home Ins. Co., 183 Ind. 355; Daugherty v. Thomas, 174 Mich. 371; Ives v. South Buffalo R. Co., 201 N. Y. 271, 295–298.

295. See Cahill v. Eastman, 18 Minn. 324; Madras R. Co. v. Zemindar of Carvatenagarum, L. R. 1 Ind. App. 364.—Reporter’s Note.

296. Only so much of the case is given as relates to a single point.

297. Damage through escape of gas from pipes, see: Gould v. Winona Gas Co., 100 Minn. 258; Taylor v. St. Joseph Gas Co., 185 Mo. App. 537; Morgan v. United Gas Co., 214 Pa. St. 109; Windish v. Peoples Gas Co., 248 Pa. St. 236.

298. Herndon v. Stultz, 124 Ia. 734 Accord. But see Indiana, Burns’ Ann. Stat., 1914, §§ 5524–5525; Texas, McEachin’s Civil Stat., arts. 6601–6602.

As to constitutionality of such legislation, see Ex parte Hodges, 87 Cal. 162.

299. Argument omitted.

300. Edwards v. Massingill, 3 Ala. App. 406; Kansas City R. Co. v. Wilson, (Ark.) 171 S. W. 484; Bullock v. Porter, 2 Boyce, 180; Talmadge v. Central R. Co., 125 Ga. 400; Beckham v. Seaboard Ry., 127 Ga. 550; Pittsburgh R. Co. v. Culver, 60 Ind. 469; Brummit v. Furness, 1 Ind. App. 401; Hanlon v. Ingram, 3 Ia. 81; Johnson v. Veneman, 75 Kan. 278; Needham v. King, 95 Mich. 303; Bolton v. Calkins, 102 Mich. 69; Steffens v. Fisher, 161 Mo. App. 386; Bock v. Grooms, 2 Neb. Unoff. 803; Read v. Pennsylvania R. Co., 44 N. J. Law, 280; Clark v. Foot, 8 Johns. 421; Stuart v. Hawley, 22 Barb. 619; Hitchcock v. Riley, 44 Misc. 260; McDermott v. Consolidated Ice Co., 44 Pa. Super. Ct. 445; Pfeiffer v. Aue, 53 Tex. Civ. App. 98; Waldy v. Preston Mill Co., 80 Wash. 25; Fahn v. Reichart, 8 Wis. 255 Accord.

Fires set by locomotives. As to liability for fires set by locomotives, there is a conflict. One view is that the plaintiff must establish negligence, as in other cases. Garrett v. Southern R. Co., (C. C. A.) 101 Fed. 102; Pittsburgh R. Co. v. Hixon, 110 Ind. 225 (changed by statute); Louisville R. Co. v. Haggard, 161 Ky. 317; Wallace v. New York R. Co., 208 Mass. 16 (res ipsa loquitur inapplicable); New England Box Co. v. New York R. Co., 210 Mass. 465; Fero v. Buffalo R. Co., 22 N. Y. 209; Peck v. New York R. Co., 165 N. Y. 347; Campbell v. Baltimore R. Co., 58 Pa. Super. Ct. 241.

Another view is that proof that the fire was due to sparks or coals from an engine makes a prima facie case of negligence or even casts upon the company the burden of disproving negligence. McCullen v. Chicago R. Co., (C. C. A.) 101 Fed. 66; Woodward v. Chicago R. Co., (C. C. A.) 145 Fed. 577 (statute); Erickson v. Pennsylvania R. Co., (C. C. A.) 170 Fed. 572 (statute); Alabama R. Co. v. Johnston, 128 Ala. 283; St. Louis R. Co. v. Trotter, 89 Ark. 273 (changed by statute); Florida R. Co. v. Welch, 53 Fla. 145 (statute); Southern R. Co. v. Thompson, 129 Ga. 367 (statute); Osburn v. Oregon R. Co., 15 Idaho, 478; American Strawboard Co. v. Chicago R. Co., 177 Ill. 513; Kennedy v. Iowa Ins. Co., 119 Ia. 29 (statute); Atchison R. Co. v. Geiser, 68 Kan. 281; Fuller v. Chicago R. Co., 137 La. 997; Dyer v. Maine R. Co., 99 Me. 195; Baltimore R. Co. v. Dorsey, 37 Md. 19; Continental Ins. Co. v. Chicago R. Co., 97 Minn. 467; Alabama R. Co. v. Barrett, 78 Miss. 432; Miller v. St. Louis R. Co., 90 Mo. 389; Rogers v. Kansas City R. Co., 52 Neb. 86; Laird v. Connecticut R. Co., 62 N. H. 254 (statute); Goodman v. Lehigh R. Co., 78 N. J. Law, 317 (statute); North Fork Lumber Co. v. Southern R. Co., 143 N. C. 324; Missouri R. Co. v. Gentry, 31 Okl. 579 (but changed by statute); Anderson v. Oregon R. Co., 45 Or. 211; Hutto v. Seaboard Ry., 81 S. C. 567; Gulf R. Co. v. Johnson, 92 Tex. 591; Ide v. Boston R. Co., 83 Vt. 66 (statute); Norfolk R. Co. v. Thomas, 110 Va. 622; Thorgrimson v. Northern R. Co., 64 Wash. 500; Jacobs v. Baltimore R. Co., 68 W. Va. 618; Moore v. Chicago R. Co., 78 Wis. 120.

In other jurisdictions there is a statutory absolute liability for such fires. St. Louis R. Co. v. Cooper, 120 Ark. 595; British Assur. Co. v. Colorado R. Co., 52 Col. 589; Martin v. New York R. Co., 62 Conn. 331; Pittsburgh R. Co. v. Chappell, 183 Ind. 141; Stewart v. Iowa R. Co., 136 Ia. 182; Murphy v. St. Louis R. Co., 248 Mo. 28; Baltimore R. Co. v. Kreager, 61 Ohio St. 312; Midland R. Co. v. Lynn, 38 Okl. 695; MacDonald v. New York R. Co., 23 R. I. 558; Peoples Oil Co. v. Charleston R. Co., 83 S. C. 530; Jensen v. South Dakota R. Co., 25 S. D. 506.

301. State v. General Stevedoring Co., 213 Fed. 51; Kinney v. Koopman, 116 Ala. 310; Kleebauer v. Western Fuse Co., 138 Cal. 497; Simpson v. Du Pont Powder Co., 143 Ga. 465; Barnes v. Zettlemoyer, 25 Tex. Civ. App. 468 Accord.

French v. Center Creek Powder Co., 173 Mo. App. 220 Contra.

Compare Sloss-Sheffield Steel Co. v. Prosch, 190 Ala. 290; Flynn v. Butler, 189 Mass. 377; Reilly v. Erie R. Co., 72 App. Div. 476.

302. Only part of case is given. Argument omitted.

303. Statement and arguments omitted.

304. Wright v. Malden R. Co., 4 All. 283; Nelson v. Burnham & Morrill Co., 114 Me. 213; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Beck v. Vancouver R. Co., 25 Or. 32 Accord. See also Newcomb v. Boston Protective Department, ante, p. 391; Bourne v. Whitman, ante, p. 400, note 1.

Platte & Denver Canal Co. v. Dowell, 17 Col. 376: Richardson v. El Paso Min. Co., 51 Col. 440; Lindsay v. Cecchi, 3 Boyce, 133; Toledo R. Co. v. O’Connor, 77 Ill. 391; United States Brewing Co. v. Stoltenberg, 211 Ill. 531; Presto-Lite Co. v. Skeel, 182 Ind. 593; Correll v. Burlington R. Co., 38 Ia. 120; Schlereth v. Missouri R. Co., 96 Mo. 509; Brannock v. Elmore, 114 Mo. 55; Olson v. Nebraska Tel. Co., 83 Neb. 735; Texas R. Co. v. Brown, 11 Tex. Civ. App. 503; Smith v. Milwaukee Builders’ Exchange, 91 Wis. 360 Contra.

In Evers v. Davis, 86 N. J. Law, 196, 202, Garrison, J., says:

“The question then is, What is, upon common law principles, the effect of statutes such as the one we are considering upon the action of negligence? The familiar expressions that the breach of such a statute is ‘negligence per se’ or is ‘prima facie evidence of negligence’ seem to me to postpone elucidation rather than to contribute to it, while the implication that proof of a breach of a public statute will support a private recovery is positively misleading.

A fact constantly to be borne in mind in tracing the legal effect of such statutes is that the negligence that is essential to the action of negligence is not solely in the overt act that produced the injury complained of, but may lie in the failure to foresee the danger likely to result from the doing of such act. ‘Danger, reasonably to be foreseen at the time of acting, is the established test of negligence’ says the writer already cited. Of negligence of this sort it may be said that it is common to all phases of the action, which cannot be said of the mere overt act, which may not be an act of neglect or omission at all, but, on the contrary, one of affirmative commission, e. g., the blowing of a locomotive whistle (Bittle v. Camden and Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma v. Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary lurching of a train (Burr v. Pennsylvania Railroad Co., 64 Id. 30). But whether the overt act be one of omission or of commission, and whether the conduct of the defendant be stated in terms of ‘duty’ or of ‘fault,’ the one common denominator, so to speak, of the action of negligence is this element of what we may call discoverable danger; that is to say, a danger that is susceptible of being discovered in advance of action or inaction by the exercise of that degree of care which if a man fails to exercise he becomes civilly liable for the consequences of his conduct. Now, it is precisely upon this element of discoverable danger that public statutes or ordinances act, and they do this not by giving to the plaintiff a right of action he did not have before, but by their operation upon what we may call the common law conscience of the defendant, better known to us in its personified form of ‘the ordinary prudent man,’ the familiar fiction designed by the common law to aid juries, when deciding what was the proper thing for a man to do, to lose sight of the personal point of view of that particular man and to base their judgment upon a general standard which in the final assize is what the jury itself thinks was the proper thing to do.

Now this ordinary prudent man of common law creation must in the nature of things be regarded as a law-abiding citizen to whom, as is pointed out by Dean Thayer in the article referred to, it would be an unjust reproach to suppose that, knowing the statute—for upon familiar principles he can claim no benefit from his ignorance of it—he would break it, reasonably believing that it was a prudent thing for him to do; and that in all probability no harm would come of it.

In other words, it is inconsistent with ordinary prudence for an individual to set up his private judgment against that of the lawfully constituted public authority. We must assume, therefore, that the ordinary prudent man would not do such a thing since to do so would be to change his entire nature and to forego the very traits that brought him into existence. He would, in fine, cease to be the pattern man he must continue to be in order to be at all.

Upon common law principles, therefore, when the legislature has by public statute established a certain standard of conduct in order to prevent a danger that it foresaw, it has in this regard forewarned the ‘ordinary prudent man’ and through him the defendant in a civil action, whose conduct must always coincide with this common law criterion. Such danger, therefore, does not have to be proved by the plaintiff, since there is no longer room for a reasonable difference of opinion, for by his breach of the statute the defendant, through his common law conscience, is charged with knowledge that if injury ensues he will have acted at his peril.

The court therefore should so instruct the jury, whether such instruction be couched in the terms of the defendant’s duty to perform or of his culpability for neglect, or of his liability for the result of his action or inaction, as the case may be; and thus upon common law principles the plaintiff in an action of negligence obtains the benefit of the statute if he be one of the class for whose protection it was enacted and the breach of such statute was the efficient cause of the injury of which he complains.”

In Smith v. Mine & Smelter Co., 32 Utah, 21, 30, Frick, J., says:

“The court instructed the jury in substance that, if they found from the evidence that the appellant had violated the city ordinance in respect to keeping or storing explosives, such violation constituted negligence per se. Counsel insist that such is not the law; that it would be prima facie negligence at most. As to whether a violation of a law or ordinance constitutes negligence per se depends in a large measure upon the nature of the law or ordinance. When a standard of duty or care is fixed by law or ordinance, and such law or ordinance has reference to the safety of life, limb, or property, then, as a matter of necessity, a violation of such law or ordinance constitutes negligence. In any case the standard is usually defined as that degree of care that men of ordinary care and prudence usually exercise. But, when the standard is fixed by law or ordinance, how can one be heard to say that he exercised care in exceeding, or in refraining to comply with, the standard fixed? There is, in such cases, no comparison to be made. Care and prudence alone cannot excuse. Exceeding or disregarding the standard of care imposed must be held to be negligence, if it is anything. If it is held not to be such per se, it simply amounts to this: That it is for the jury to say whether, in violating a law or ordinance fixing a standard of care to be observed the law was carefully or negligently violated. The violation, thus in and of itself, would mean nothing, and one would be permitted to violate the law with impunity, provided the jury find it to have been carefully done. Neither is it an answer to say that the violation may have been caused by the act of God or unavoidable accident. If such be the case, then the act constituted no violation in law, and when there is no violation there would be no negligence arising out of such act or acts alone, and the jury would be required to find whether the act or acts complained of constituted a violation, as above indicated, or not. If they found that the law was disregarded, but that it was occasioned by a higher power or through unavoidable accident, then there would be no violation by the person charged, and hence no negligence imputable to him from that act alone. But if they found that he had violated the law by his own act, or by the acts of others chargeable to him, then there would be negligence per se. This negligence, however, standing alone, is not civilly actionable. The negligence must in all cases be found to be the proximate cause of the injury. The court instructed the jury that unless they found that the negligence, if they found negligence as above stated, was the proximate cause of the injury complained of, the respondent could not recover. This, we think, is a correct statement of the law pertaining to ordinances such as the one in question here. We do not hold that a violation of all laws or ordinances constitutes negligence per se, but we do hold that the violation of ordinances designed for the safety of life, limb, or property, does constitute negligence per se, and this, we think, is supported by the clear weight of authority.”

It is sometimes said that violation of a duty so imposed is “prima facie evidence of negligence;” Giles v. Diamond State Iron Co., 7 Houst. 453; True v. Woda, 104 Ill. App. 15; Wabash R. Co. v. Kamradt, 109 Ill. App. 203; Mize v. Rocky Mountain Tel. Co., 38 Mont. 521; Briggs v. New York R. Co., 72 N. Y. 26; Acton v. Reed, 104 App. Div. 507.

A distinction between a statute and a municipal ordinance has been urged. Philadelphia R. Co. v. Ervin, 89 Pa. St. 71; Lederman v. Pennsylvania R. Co., 165 Pa. St. 118; Riegert v. Thackery, 212 Pa. St. 86.

In Ubelmann v. American Ice Co., 209 Pa. St. 398, 400, Brown, J., says:

“When negligence is charged it must be proved. Proof of the violation of an ordinance regulating or relating to conduct alleged to have been negligent is not in itself conclusive proof of the negligence charged. The ordinance and its violation are matters of evidence, to be considered with all other evidence in the case: Lane v. Atlantic Works, 111 Mass. 136. But this rule is limited to cases in which the ordinance relates to the alleged negligent act under investigation. Here, as stated, it was the use of an alleged defective shifting rod in the elevator. Ordinances and their violation are admissible, not as substantive and sufficient proof of the negligence of the defendant, but as evidence of municipal expression of opinion, on a matter as to which the municipal authorities had acted, that the defendant was negligent, and are to be taken into consideration with all the other facts in the case. Illustrations of this are found in several of our later cases. In Lederman v. Pennsylvania Railroad Co., 165 Pa. 118, one of the questions was the undue rate of speed at which the defendant company was running its cars through the city of Lancaster, and we held that the ordinance in relation to the speed of railway trains within the city limits had been properly admitted. An ordinance of the city of Philadelphia requires all vehicles, including bicycles, to keep to the right, and, in Foote v. American Product Co., 195 Pa. 190, where the rider of the bicycle had conformed to this ordinance, and the driver of the wagon that ran into him had not, we said, through our Brother Mestrezat: ‘While the ordinance in itself was not evidence of negligence, it may be considered with other evidence in ascertaining whether the defendant was guilty of negligence.’ When the suit is against the municipality itself, and it is charged with negligence, due to the dereliction of its employees, their violation or disregard of its own regulations and ordinances relating to the matter under investigation are proof of such dereliction, though not necessarily of the specific negligence charged, which, as in all other cases, must be proved by proper and satisfactory evidence. The dereliction of the municipal employees is to be taken into consideration with the other facts in the case, upon proof of which the plaintiff relies to sustain his allegation of negligence. An illustration of this is Herron v. The City of Pittsburg, 204 Pa. 509, which was an action against the city to recover damages for personal injuries sustained by a boy from contact with a live, naked telephone wire used in the police service of the city, and it appeared that the break in the wire was known to the police officials within an hour after it had occurred, and that it was also known to them to be in close proximity to other wires, some of which carried strong and dangerous currents of electricity. We regarded as proper the admission of the ordinance of the city and the rules of the police department relating to the inspection and use of the city wires.

The ordinance of April 10, 1894, provides for the inspection of elevators by inspectors duly appointed by the city of Philadelphia, and makes it the duty of the owner or operator of an elevator, after its inspection, to procure from the inspector a certificate that it is in condition to be operated, and to expose the certificate to public view as near as possible to the elevator car. This ordinance does not make it the duty of one owning or operating an elevator to demand an inspection, and it is only after the inspector has inspected that he must procure and expose the certificate. But, even if there had been an inspection here, and the defendant company had not procured and exposed the proper certificate, its failure to do so is not the negligence charged against it that resulted in the plaintiff’s injury, and the ordinance clearly had no proper place in his evidence.”

Breach of rules of a private corporation, see Hoffman v. Cedar Rapids R. Co., 157 Ia. 655; Stevens v. Boston R. Co., 184 Mass. 476; Virginia R. Co. v. Godsey, 117 Va. 167.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

305. Arguments omitted.

306. Steel Car Forge Co. v. Chec, (C. C. A.) 184 Fed. 868; Great Southern R. Co. v. Chapman, 80 Ala. 615; Lindsay v. Cecchi, 3 Boyce, 133; Gibson v. Leonard, 143 Ill. 182; Browne v. Siegel, 90 Ill. App. 49 (aff’d on another ground, 191 Ill. 226); Presto-Lite Co. v. Skeel, 182 Ind. 593; Kidder v. Dunstable, 11 Gray, 342; Curwen v. Bofferding, 133 Minn. 28; Koch v. Fox, 71 App. Div. 288; Kuhnen v. White, 102 App. Div. 36; Ledbetter v. English, 166 N. C. 125; Dobbins v. Missouri R. Co., 91 Tex. 60; Stacy v. Knickerbocker Ice Co., 84 Wis. 614; Derouso v. International Harvester Co., 157 Wis. 32 Accord.

Compare Hartnett v. Boston Store, 265 Ill. 331, with Pizzo v. Wiemann, 149 Wis. 285; Beauchamp v. Burn Mfg. Co., 250 Ill. 303, with Berdos v. Tremont Mills, 209 Mass. 489.

307. In Cowley v. Newmarket Local Board, [1892] A. C. 345, 351, Lord Herschell said:

“My Lords, the question which arises in this action is whether the defendants are liable in respect of an accident which happened to the plaintiff, owing to the existence of a drop of eighteen inches in the level of a footway vested in the defendants, in consequence of which the plaintiff fell and sustained considerable injury. The difference of level in the footway arose from a carriage-way having been made for the purpose of access to Captain Machell’s stable, the yard of which adjoined the footway. This work was executed by Captain Machell in the year 1873. The plaintiff in his statement of claim asserted that the defendants had wrongfully suffered and permitted the footway to be out of repair and in a condition dangerous to passengers. It appeared clearly at the trial that there had been no misfeasance on the part of the defendants. The utmost that could be charged against them was nonfeasance. It was strongly urged at the bar that the highway including the footway being vested in the defendants, they were responsible if it was not kept in proper condition and repair to any one who was injured by reason of its not being so kept. In support of their contention they relied mainly on the 144th and 149th sections of the Public Health Act, 1875. By the former of those sections every urban authority is to execute the office of surveyor of highways, and to exercise and be subject to all the powers, duties, and liabilities of surveyors. By the latter it is provided that the urban sanitary authority shall from time to time cause all streets vested in them to be levelled, paved, metalled, flagged, channelled, altered, and repaired as occasion may require. Amongst the duties thus imposed upon the urban authority was undoubtedly the duty of keeping this highway in repair, and it is said that any person injured by the non-performance of a statutory duty is entitled to recover against the person on whom that duty rests. I entertain very grave doubts whether the proposition thus broadly stated can be maintained. The principal authority in support of it is the decision of the Court of Queen’s Bench in the case of Couch v. Steel, 3 E. & B. 402. But in the case of Atkinson v. Newcastle Waterworks Company, 2 Ex. D. 441, the late Lord Cairns and Cockburn, C. J., and the present Master of the Rolls all expressed serious doubts whether the case of Couch v. Steel was rightly decided, and whether the broad general proposition could be supported, that whenever a statutory duty is created any person who can show he has sustained injury from the non-performance of that duty can maintain an action for damages against the person on whom the duty is imposed. I share the doubt expressed by these learned judges and the opinion expressed by Lord Cairns that much must ‘depend on the purview of the Legislature in the particular statute and the language which they have there employed.’ In the case of Glossop v. Heston and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some observations bearing on this point, which seem to me to be of great weight. In that case the plaintiff claimed an injunction to restrain a nuisance on the ground that the defendants had neglected to perform the statutory duty cast on them as the sanitary authority of a particular district. The learned Lord Justice said: ‘It appears to me that if this action could be sustained it would be a very serious matter indeed for every ratepayer in England in any district in which there is any local authority upon whom duties are cast for the benefit of the locality. If this action could be maintained, I do not see why it could not, in a similar manner, be maintained by every owner of land in that district who could allege that if there had been a proper system of sewage his property would have been very much improved.’ And he expressed the opinion that such a contention was not supported either by principle or authority. It is to be observed that the Highway Act, which defines the duties of surveyors of highways, prescribes the mode of proceeding when the duty of repairing the highway is unfulfilled and the liability which is then to attach to the surveyor. By sect. 94 he may be summoned before the justices, and if it appears either upon the report of a person appointed by them to view, or on their own view, that the highway is not in a state of thorough and perfect repair, they are to convict the surveyor in a penalty, and to make an order on the surveyor to repair it within a limited time; and if the repairs are not made within the time so limited the surveyor is to forfeit and pay to a person to be named and appointed in a second order a sum of money equal to the cost of repairing the highway. I think it, to say the least, doubtful whether, apart from the reason to which I am about to refer, the contention that an action lies against the local board for a breach of their statutory duty to repair the highways can be maintained.”

Sydney Municipal Council v. Bourke, [1895] A. C. 433; Maguire v. Liverpool Corporation, [1905] 1 K. B. 767 Accord. But compare Dawson v. Bingley Urban District Council, [1911] 2 K. B. 149.

Statutory duty to repair street or sidewalk, see Manchester v. Hartford, 30 Conn. 118; Kirby v. Boylston Market, 14 Gray, 249; Rochester v. Campbell, 123 N. Y. 405.

308. “A person who sells, gives away, or disposes of, any poison, or poisonous substance, without attaching to the vial, box, or parcel containing such poisonous substance, a label, with the name and residence of such person, the word ‘poison,’ and the name of such poison, all written or printed thereon, in plain and legible characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section 329.

“No person shall sell at retail any poisonous commodity recognized as such, and especially” [here enumerating various poisons], “without affixing to the box, bottle, vessel or package containing the same, and to the wrapper or cover thereof, a label bearing the name ‘poison’ distinctly shown, together with the name and place of business of the seller.... Any person failing to comply with the requirements of this section shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than five (5) dollars for each and every such omission.”—Minnesota Laws, 1885, chap. 147, section 14.

309. Couch v. Steel, 3 E. & B. 402; Salisbury v. Herchenroder, 106 Mass. 458; Parker v. Barnard, 135 Mass. 116; Marino v. Lehmaier, 173 N. Y. 530; Westervelt v. Dives, 220 Pa. St. 617 Accord. Compare Nugent v. Vanderveer, 38 Hun, 487.

See also Great Northern Fishing Co. v. Edgehill, 11 Q. B. D. 225.

310. Arguments omitted. Only so much of the opinion is given as relates to a single point.

311. Groves v. Wimborne, [1898] 2 Q. B. 402; Cowen v. Story & Clark Co., 170 Ill. App. 92; Andersen v. Settergren, 100 Minn. 294; Schaar v. Conforth, 128 Minn. 460 Accord. Compare Stehle v. Jaeger Machine Co., 220 Pa. St. 617; Drake v. Fenton, 237 Pa. St. 8.

312. Arguments of counsel omitted.

313. Bischof v. Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co. v. Connolly, 72 Neb. 767; Hocking R. Co. v. Phillips, 81 Ohio St. 453 Accord.

Breach of statutory duty toward third person, see Gibson v. Leonard, 143 Ill. 182; Woodruff v. Bowen, 136 Ind. 431; Bott v. Pratt, 33 Minn. 323; Kelly v. Muhs, 71 N. J. Law, 348; Beehler v. Daniels, 19 R. I. 49. Compare Racine v. Morris, 201 N. Y. 240.

In Stanley v. Atchison R. Co., 88 Kan. 84, Mason, J., says:

“The evidence tended to show these facts: Stanley kept a number of cattle in a feed lot one side of which was formed by the right-of-way fence. Employees of the company who were engaged in its repair removed a part of it, as well as a part of Stanley’s fence which connected with it, and as a temporary protection strung two wires across the gap. The protection was insufficient and the cattle escaped. None of them was injured upon the right of way, but a number strayed and were not recovered, and others suffered injury, in some cases fatal.

The defendant maintains that in any view of the findings the judgment ought not to be reversed, for the reason that the petition does not state a cause of action, because the company was under no obligation to maintain the fence, except for the purpose of avoiding liability for animals killed or injured by its trains, and therefore cannot be held accountable for any other kind of loss occasioned by the want of a sufficient fence. The original statute upon the subject does not in terms require a railroad right of way to be fenced. It makes the company responsible for animals killed or injured by the operation of its railway irrespective of negligence, except where the road is enclosed with a lawful fence.... The later statute imposed a duty on the railroad company to maintain the fence, and it is liable for any injury of which its neglect of such duty is the proximate cause....

The defendant urges that the purpose of the statute referred to is to promote safety in the running of trains; that in this purpose is found the only warrant for imposing upon the railroad company the obligation to fence its right of way; and that therefore the company’s liability must be limited to injuries resulting from the operation of the road, and the state has no power to make it liable for losses occasioned by the escape of animals which do not meet with any injury upon the right of way. Assuming that the right of the legislature to require a railroad company to fence its tracks is based solely upon the consideration that such fencing may be deemed necessary to diminish the danger of injury to animals from the operation of trains, and to persons and property resulting from trains colliding with animals, it is competent as a means of enforcing such requirement to make the company liable for losses occasioned to the landowner by the escape of his cattle through a defective fence, although they pass from the right of way without injury.”

Liability to licensee in case of breach of statutory duty as to condition of premises, see Sheyer v. Lowell, 134 Cal. 357.

Liability to trespassers, see Nelson v. Burnham & Morrill Co., 114 Me. 213; Flanagan v. Sanders, 138 Mich. 253; Hamilton v. Minneapolis Desk Co., 78 Minn. 3; Bennett v. Odell Mfg. Co., 76 N. H. 180. Compare Butz v. Cavanaugh, 137 Mo. 503.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 313, 336.

314. By “Lord Tenterden’s Act,” 9 Geo. IV. ch. 14, s. 6, it is provided, that no action shall be brought to charge any person upon any representation made concerning the character, conduct, credit, ability, trade, or dealings of any other person, to the intent that such other person may obtain credit, money, or goods, unless such representation “be made in writing, signed by the party to be charged therewith.” Statutes of a similar nature have been enacted in some of the United States.

315. Only part of the opinion is printed.

316. Cf. Lillegren v. Burns, 135 Minn. 60.

317. Statement abridged. Only part of opinion is given.

318. In Aaron’s Reefs Ltd. v. Twiss, [1896] A. C. 273, 280–281, Lord Halsbury, L. C., says: “I must protest against it being supposed that in order to prove a case of this character of fraud, and that a certain course of conduct was induced by it, a person is bound to be able to explain with exact precision what was the mental process by which he was induced to act. It is a question for the jury. If a man said he was induced by such and such an inducement held out in the prospectus, I should not think that conclusive. It must be for the jury to say what they believed upon the evidence. Looking at the evidence in this case, I should say if I were a juryman that this was a very fascinating prospectus, and was calculated to induce any one who believed the statements in it to invest his money in the concern.”

In Mathews v. Bliss, 22 Pick. 48, Shaw, C. J., says: “The judge further instructed the jury, that in order to maintain this action, they must be satisfied that the defendants had made the false representation, and that the sale was produced by means of it; that it was not necessary that it should be the sole and only motive inducing the sale, but it must have been a predominant one. In this particular, the Court are of opinion, that the direction, as it may have been and probably was understood by the jury, was not strictly correct; though it may have been so qualified and illustrated as to prevent the jury from being misled by it.

The term ‘predominant,’ in its natural and ordinary signification, is understood to be something greater or superior in power and influence to others, with which it is connected or compared. So understood, a predominant motive, when several motives may have operated, is one of greater force and effect, in producing the given result, than any other motive. But the Court are of opinion, that if the false and fraudulent representation was a motive at all, inducing to the act, if it was one of several motives, acting together, and by their combined force producing the result, it should have been left to the jury so to find it. If the false suggestion had no influence, if the plaintiff’s agent would have done the same thing and made the sale if such representation had not been made, then it was not a motive to the act, and the plaintiff’s agent was not induced to sell by means of it. On the whole, considering that the ordinary and natural meaning of the term ‘predominant,’ when applied to one among several motives, is such as has been stated, that the jury may have so understood it, and if they did so understand it, they may have come to a verdict not warranted by law, upon the evidence before them, the Court are of opinion, that the verdict ought to be set aside, and a new trial granted.”

319. The case has been much abridged, and the greater part of the report omitted.

320. Cockrill v. Hall, 65 Cal. 326; United States Home Co. v. O’Connor, 48 Col. 354; Lynch v. Hall, 41 Conn. 238; Jones v. Crawford, 107 Ga. 318; Hinchey v. Starrett, 91 Kan. 181; Oldham v. Bentley, 6 B. Mon. 428; Price v. Read, 2 Har. & G. 291; Adams v. Anderson, 4 Har. & J. 558; Sweet v. Kimball, 166 Mass. 332; Garry v. Garry, 187 Mass. 62; McElrath v. Electric Investment Co., 114 Minn. 358; Holmes v. Wilkes, 130 Minn. 170; Cerny v. Paxton Co., 78 Neb. 134; Gabriel v. Graham, 168 App. Div. 847; American Hosiery Co. v. Baker, 18 Ohio Cir. Ct. R. 604; Standard Elevator Co. v. Wilson, 218 Pa. St. 280; Bowe v. Gage, 127 Wis. 245 Accord. See also Wilson v. Yocum, 77 Ia. 569.

321. Arguments and part of opinion omitted.

322. Harriage v. Daley, 121 Ark. 23; Dickinson v. Atkins, 100 Ill. App. 401; McAllister v. Indianapolis R. Co., 15 Ind. 11; Welshbillig v. Dienhart, 65 Ind. 94; Long v. Woodman, 58 Me. 49; Davis v. Reynolds, 107 Me. 61; Bullock v. Wooldridge, 42 Mo. App. 356; Wolters v. Fidelity Trust Co., 73 N. J. Law, 57 Accord. See also Bennett v. McIntire, 121 Ind. 231.

In Adams v. Gillig, 199 N. Y. 314, plaintiff sued in equity for cancellation of a conveyance procured by falsely representing that defendant intended to build a dwelling on the land, when his real intention was to build a garage. Chase, J., said (pp. 320–322): “A promise as such to be enforceable must be based upon a consideration, and it must be put in such form as to be available under the rules relating to contracts and the admission of evidence relating thereto. It may include a present intention, but as it also relates to the future it can only be enforced as a promise under the general rules relating to contracts.

A mere statement of intention is a different thing. It is not the basis of an action on contract. It may in good faith be changed without affecting the obligations of the parties. A statement of intention does not relate to a fact that has a corporal and physical existence, but to a material and existing fact nevertheless not amounting to a promise but which as in the case under discussion affects and determines important transactions. The question here under discussion is not affected by the rules relating to the admission of testimony. As it was not promissory and contractual in its nature there is nothing in the rules of evidence to prevent oral proof of the representations made by the defendant to the plaintiff. In an action brought expressly upon a fraud, oral evidence of facts to show the fraud is admissible. (Pomeroy’s Equity Jurisprudence, Sec. 889.)

This case stands exactly as it would have stood if the plaintiff and defendant before the execution and delivery of the deed had entered into a writing by which the defendant had stated therein his intention as found by the court on the trial and the plaintiff had stated her acceptance of his offer based upon her belief and faith in his statement of intention, and it further appeared that the statement was so made by the defendant for the purpose of inducing the plaintiff to sell to him the lot, and that such statement was so made by him falsely, fraudulently and purposely for the purpose of bringing about such sale.

Intent is of vital importance in very many transactions. In the criminal courts it is necessary in many cases for jurors to determine as a question of fact the intent of the person charged with the crime. Frequently the life or liberty of the prisoner at the bar depends upon the determination of such question of fact. In civil actions relating to wrongs, the intent of the party charged with the wrong is frequently of controlling effect upon the conclusion to be reached in the action. The intent of a person is sometimes difficult to prove, but it is nevertheless a fact and a material and existing fact that must be ascertained in many cases, and when ascertained determines the rights of the parties to controversies. The intent of Gillig was a material existing fact in this case, and the plaintiff’s reliance upon such fact induced her to enter into a contract that she would not otherwise have entered into. The effect of such false statement by the defendant of his intention cannot be cast aside as immaterial simply because it was possible for him in good faith to have changed his mind or to have sold the property to another who might have a different purpose relating thereto. As the defendant’s intention was subject to change in good faith at any time it was of uncertain value. It was, however, of some value. It was of sufficient value so that the plaintiff was willing to stand upon it and make the conveyance in reliance upon it.

The use of property in a particular manner changes from time to time and restrictive covenants of great value at one time may become a source of serious embarrassment at a later date. The fact that restrictive covenants cannot ordinarily be drawn to bend to changed conditions has made many purchasers disinclined to accept conveyances with such covenants. A restrictive covenant in a deed may be of sufficient importance to justify a refusal by a contractee to accept a conveyance subject to such conditions. A person in selling property may be quite willing to execute and deliver a deed thereof without putting restrictive covenants therein and in reliance upon the good faith of express, unqualified assurances of the present intention of the prospective purchaser. In such case the intention is material and the statement of such intention is the statement of an existing fact.

Unless the court affirms this judgment, it must acknowledge that although a defendant deliberately and intentionally, by false statements, obtained from a plaintiff his property to his great damage it is wholly incapable of righting the wrong, notwithstanding the fact that by so doing it does in no way interfere with the rules that have grown up after years of experience to protect written contracts from collateral promises and conditions not inserted in the contract.

We are of the opinion that the false statements made by the defendant of his intention should, under the circumstances of this case, be deemed to be a statement of a material, existing fact of which the court will lay hold for the purpose of defeating the wrong that would otherwise be consummated thereby.”

323. Butler v. Watkins, 13 Wall. 456; Rogers v. Virginia-Carolina Chemical Co., (C. C. A.) 149 Fed. 1; Sallies v. Johnson, 85 Conn. 77; McLaughlin v. Thomas, 86 Conn. 252; Olson v. Smith, 116 Minn. 430; Herndon v. Durham R. Co., 161 N. C. 650; Blackburn v. Morrison, 29 Okl. 510 Accord.

Grubb v. Milan, 249 Ill. 456; Murray v. Smith, 42 Ill. App. 548; Chambers v. Mitchell, 123 Ill. App. 595; Younger v. Hoge, 211 Mo. 444 Contra.

In Commonwealth v. Althause, 207 Mass. 32, 47–49, Loring, J., says: “As a general proposition of law apart from statutes making it a crime to obtain property by a false pretence, it would seem that a man’s present intention as to a future act is a fact. Edgington v. Fitzmaurice, 29 Ch. D. 459. Swift v. Rounds, 19 R. I. 527. In the first of these two cases (Edgington v. Fitzmaurice) Bowen, L. J., said, at p. 483: ‘The state of a man’s mind is as much a fact as the state of his digestion.’ And Chapman, C. J., in Commonwealth v. Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of fact, and may be proved as such....’

But in the case at bar the presiding judge went beyond any decided case in the explanation which he gave of the difference between the representation of a person’s present intention as to a future act and an assurance or promise that the future act shall be done. For the purpose of illustrating the essential difference between the two he put as an example of obtaining property by a false pretence a case which is not obtaining property by a false pretence. In effect he told the jury that if A buys property intending not to pay for it he obtains that property by a false pretence. In that case A makes no representation at all. All that he does is to make a promise, and a promise is not a representation of a fact. It has been sought to make out that in legal contemplation a promise with an intention not to perform is a false pretence because a promise to do a thing of necessity implies a present intention to do it, and therefore whenever you have a promise coupled with an intent not to perform you have an implied false representation of an intention to do the act which the defendant promised to do and so a false pretence. And this finds some apparent support in Swift v. Rounds, 19 R. I. 527. In that case it was held that where a defendant buys property intending not to pay for it he is liable in an action of deceit because he impliedly represents that he intends to pay for it by the act of buying. It may be doubted whether the making of a promise implies of necessity in all cases a present intention to perform that promise. Upon that question we do not find it necessary to express an opinion. For however that may be, the fraud of obtaining property by buying it intending not to pay for it is not, as matter of construction of the statute creating it, the crime of obtaining property by a false pretence.... It is evident that the fraud (which by enacting that statute the Legislature intended to make a crime) was obtaining the property of another by a false statement of a fact; and it is equally evident that in enacting it the Legislature did not have in mind the fraud of buying goods not intending to pay for them. Both are frauds but they are not the same fraud. In our opinion it was the former alone which the Legislature had in mind in making it a crime to obtain property by a false pretence.”

As to whether intention at the time of the contract or at the time of delivery of the goods is to be regarded, see In re Levi, 148 Fed. 654; Whitten v. Fitzwater, 129 N. Y. 626.

324. See Gardner v. State, 4 Ala. App. 131; Syracuse Knitting Co. v. Blanchard, 69 N. H. 447.

325. Statement abridged. Part of opinion omitted.

326. As to “promissory representations,” see also Sawyer v. Prickett, 19 Wall. 146; Sallies v. Johnson, 85 Conn. 77; Carter v. Orne, 112 Me. 365; Pedrick v. Porter, 5 All. 324; Pile v. Bright, 156 Mo. App. 301.

Known impossible prophecy by one having superior knowledge, see Murray v. Tolman, 162 Ill. 417; French v. Ryan, 104 Mich. 625; Hedin v. Minneapolis Institute, 62 Minn. 146.

327. Only part of the case is given.

328. But see Davis v. Reynolds, 107 Me. 61.

In Van Epps v. Harrison, 5 Hill, 63, 70–71, Bronson, J., says: “If an affirmation concerning the cost of the property was of any consequence, I think the defendant should have taken the trouble to inquire and satisfy himself. But I cannot think it a matter of any legal importance. It was only another mode of asserting that the property was of the value of $32,000; and all the books agree that no action will lie if such an affirmation prove false. It is the folly of the purchaser to trust to it. Indeed, the representation here amounts to less than a direct affirmation of value, for it only asserts that the plaintiff and another man agreed that such was the value. It would lead to great mischief to allow men to annul contracts upon such a ground. If the defendant could make out that the plaintiff was his agent in purchasing from Van Rensselaer, then what the plaintiffs said about the price he paid might be material; but not in any other point of view.

Such are my views upon this branch of the case; but my brethren are of opinion that the false affirmation concerning the price paid for the land furnishes a good ground of action. There must, therefore, be a new trial upon this point, as well as the one relating to the condition of the land.”

As to “puffing,” see: Mumford v. Tolman, 157 Ill. 258; Miller v. Craig, 36 Ill. 109; Wightman v. Tucker, 50 Ill. App. 75; Woods v. Nicholas, 92 Kan. 258; Buckingham v. Thompson, 135 S. W. 652.

But see Pratt v. Judge, 177 Mich. 558; Adams v. Soule, 33 Vt. 538.

Statements as to value, see: Harvey v. Young, Yelverton, 21; Lake v. Loan Assn., 72 Ala. 207; Stevens v. Alabama Land Co., 121 Ala. 450; Kincaid v. Price, 82 Ark. 20; Williams v. McFadden, 23 Fla. 143; Noetling v. Wright, 72 Ill. 390; Cagney v. Cuson, 77 Ind. 494; Bossingham v. Syck, 118 Ia. 192; Else v. Freeman, 72 Kan. 666; Reynolds v. Evans, 123 Md. 365; Picard v. McCormick, 11 Mich. 68; Doran v. Eaton, 40 Minn. 35; Boasberg v. Walker, 111 Minn. 445; Union Bank v. Hunt, 76 Mo. 439; Dalrymple v. Craig, 149 Mo. 345; Dresher v. Becker, 88 Neb. 619; Sandford v. Handy, 23 Wend. 260; Ellis v. Andrews, 56 N. Y. 83; Van Slochem v. Villard, 207 N. Y. 587; Mecum v. Becker, 166 App. Div. 793; Campbell v. Zion’s Real Estate Co., 46 Utah, 1; Shanks v. Whitney, 66 Vt. 405.

Compare Moon v. Benton, 13 Ala. App. 473; Pate v. Blades, 163 N. C. 267; Crompton v. Beedle, 83 Vt. 287.

329. Portions of the opinion are omitted.

330. Gordon v. Butler, 105 U. S. 553; Kimber v. Young, (C. C. A.) 137 Fed. 744; Pittsburgh Life & Trust Co. v. Northern Ins. Co., 140 Fed. 888, 148 Fed. 674; Dotson v. Kirk, (C. C. A.) 180 Fed. 14; Rendell v. Scott, 70 Cal. 514; Wrenn v. Truitt, 116 Ga. 708; Dowden v. Wilson, 108 Ill. 257; Curry v. Keyser, 30 Ind. 214; Conant v. Nat’l State Bank, 121 Ind. 323; Scroggin v. Wood, 87 Ia. 497; Vokes v. Eaton, 119 Ky. 913; Holbrook v. Connor, 60 Me. 578; Bishop v. Small, 63 Me. 12; Donnelly v. Baltimore Trust Co., 102 Md. 1; Mooney v. Miller, 102 Mass. 217; Nash v. Minnesota Title & Trust Co., 159 Mass. 437; Lynch v. Murphy, 171 Mass. 307; Nowlin v. Snow, 40 Mich. 699; Myers v. Alpena Loan Ass’n, 117 Mich. 389; Getchell v. Dusenbury, 145 Mich. 197; Perkins v. Trinka, 30 Minn. 241; Brown v. South Joplin Min. Co., 194 Mo. 681; Ray County Bank v. Hutton, 224 Mo. 42; Fisher v. Seitz, 172 Mo. App. 162; Duffany v. Ferguson, 66 N. Y. 482; Hatton v. Cook, 166 App. Div. 257; Pritchard v. Dailey, 168 N. C. 330; Martin v. Eagle Creek Development Co., 41 Or. 448; Watts v. Cummins, 59 Pa. St. 84; Horrigan v. First Nat. Bank, 9 Baxt. 137; Jude v. Woodburn, 27 Vt. 415; Randall v. Farnum, 52 Vt. 539; Romaine v. Excelsior Machine Co., 54 Wash. 41; Crislip v. Cain, 19 W. Va. 438 Accord.

Compare Wall v. Graham, 192 Ala. 396; Barron Estate Co. v. Woodruff Co., 163 Cal. 561; Phelps v. Grady, 168 Cal. 73; Sleeper v. Smith, 77 N. H. 337; Olston v. Oregon R. Co., 52 Or. 343.

Opinion of third person, see Adams v. Collins, 196 Mass. 422.

331. Jarratt v. Langston, 99 Ark. 438; Baum v. Holton, 4 Col. App. 406; Shelton v. Healy, 74 Conn. 265; Kenner v. Harding, 85 Ill. 264; Dwight v. Chase, 3 Ill. App. 67; Wightman v. Tucker, 50 Ill. App. 75; Coulter v. Clark, 160 Ind. 311; Stauffer v. Hulwick, 176 Ind. 410; Beck v. Goar, 180 Ind. 81; Automobile Co. v. Crowell, 149 N. W. 861; Hetland v. Bilstad, 140 Ia. 411; Picard v. McCormick, 11 Mich. 68; Nowlin v. Snow, 40 Mich. 699; McDonald v. Smith, 139 Mich. 211; Conlan v. Roemer, 52 N. J. Law, 53; Bacon v. Frisbie, 15 Hun, 26; Marshall v. Seelig, 49 App. Div. 433; Ganow v. Ashton, 32 S. D. 458; Rodee v. Seaman, 33 S. D. 184; Rorer Iron Co. v. Trout, 83 Va. 397; Fitzgerald v. Frankel, 109 Va. 603; Grant v. Huschke, 74 Wash. 257 Accord.

332. Winkler v. Jerrue, 20 Cal. App. 555; Hodgkins v. Dunham, 10 Cal. App. 690; Olvey v. Jackson, 106 Ind. 286; Crane v. Elder, 48 Kan. 259; Gurney v. Tenney, 197 Mass. 457; Van de Wiele v. Garbade, 60 Or. 585; Corey v. Boynton, 82 Vt. 257; Simons v. Cissna, 52 Wash. 115 Accord. Compare Foster v. Kennedy, 38 Ala. 359; Sheer v. Hoyt, 13 Cal. App. 662; Judy v. Jester, 53 Ind. App. 74; Burr v. Willson, 22 Minn. 206; Adan v. Steinbrecher, 116 Minn. 174.

333. Arguments omitted.

334. See also Nevada Bank v. Portland Nat. Bank, 59 Fed. 338.

In Aaron’s Reefs v. Twiss, [1896] A. C. 273, Lord Halsbury, L. C., said (pp. 283–284): “I do not think any particular form of words is necessary to convey a false impression. Supposing a person goes to a bank where the people are foolish enough to believe his words, and says, ‘I want a mortgage upon my house, and my house is not completed, but in the course of next week I expect to have it fully completed.’ Suppose there was not a house upon his land at all, and no possibility, therefore, that it could be fully completed next week, can anybody say that that was not an affirmative representation that there was a house which was so near to completion that it only required another week’s work upon it to complete it? Could anybody defend himself if he was charged upon an indictment for obtaining money under false pretences, the allegation in the indictment being that he pretended that there was a house so near completion that it only required a week’s work upon it, by saying that he never represented that there was a house there at all? So here, when I look at the language in which this prospectus is couched, and see that it speaks of a property which requires only the erection of machinery to be either at once or shortly in a condition to do work so as to obtain all this valuable metal from the mine, it seems to me that, although it is put in ambidextrous language, it means as plainly as can be that this is now the condition of the mine, that such and such additions to it will enable it shortly to produce all those great results, and that that is a representation of an actually existing fact. I should quite agree with the proposition that the Lord Chancellor of Ireland and the Master of the Rolls put forward—if you are looking to the language as only the language of hope, expectation, and confident belief, that is one thing; but it does not seem to have been in the minds of the learned judges that you may use language in such a way as, although in the form of hope and expectation, it may become a representation as to existing facts; and if so, and if it is brought to your knowledge that these facts are false, it is a fraud.”

335. The statement has been abridged.

336. Loewer v. Harris, (C. C. A.) 57 Fed. 368; King v. White, 119 Ala. 429; Christy v. Campbell, 36 Col. 261; Kronfeld v. Missal, 87 Conn. 491; James v. Crosthwait, 97 Ga. 673; Gordon v. Irvine, 105 Ga. 144; Aortson v. Ridgway, 18 Ill. 23; Dayton v. Kidder. 105 Ill. App. 107; Craig v. Hamilton, 118 Ind. 565; Firestone v. Werner, 1 Ind. App. 293; Coles v. Kennedy, 81 Ia. 360; Howerton v. Augustine, 130 Ia. 389; Nairn v. Ewalt, 51 Kan. 355; Faris v. Lewis, 2 B. Mon. 375; Weikel v. Sterns, 142 Ky. 513; Prentiss v. Russ, 16 Me. 30; Barrett v. Lewiston R. Co., 110 Me. 24; Johnston v. Cope, 3 Har. & J. 89; Burns v. Dockray, 156 Mass. 135; Batty v. Greene, 206 Mass. 561; Kenyon v. Woodruff, 33 Mich. 310; Tompkins v. Hollister, 60 Mich. 470; Busch v. Wilcox, 82 Mich. 315; Marsh v. Webber, 13 Minn. 109; Thomas v. Murphy, 87 Minn. 358; McAdams v. Cates, 24 Mo. 223; Morley v. Harrah, 167 Mo. 74; Manter v. Truesdale, 57 Mo. App. 435; Stevens v. Fuller, 8 N. H. 463; Fleming v. Slocum, 18 Johns. 403; Allen v. Addington, 7 Wend. 9; March v. First National Bank, 4 Hun, 466; Brown v. Gray, 6 Jones Law, 103; Lunn v. Shermer, 93 N. C. 164; Gidney v. Chappell, 26 Okl. 737; Fitzhugh v. Nirschl, 77 Or. 514; Rheen v. Naugatuck Wheel Co., 33 Pa. St. 356; Cardwell v. McClelland, 3 Sneed, 150; Allison v. Tyson, 5 Humph. 449; Graham v. Stiles, 38 Vt. 578; Maynard v. Maynard, 49 Vt. 297; Crompton v. Beedle, 83 Vt. 287; Jarrett v. Goodnow, 39 W. Va. 602; Morgan v. Hodge, 145 Wis. 143 Accord. Compare: Randolph v. Allen, (C. C. A.) 73 Fed. 23; Ball v. Farley, 81 Ala. 288; Cherry v. Brizzolara, 89 Ark. 309; Roper v. Sangamon Lodge, 91 Ill. 518; Potts v. Chapin, 133 Mass. 276; Cochrane v. Halsey, 25 Minn. 52; Crowell v. Jackson, 53 N. J. Law, 656; Babcock v. Libbey, 82 N. Y. 144; Jones v. Stewart, 62 Neb. 207; Wicker v. Worthy, 51 N. C. 500; Harris v. Tyson, 24 Pa. St. 347; Iron Bank v. Anderson, 194 Pa. St. 205; Bishop v. Buckley, 33 Pa. Super. Ct. 123; Campbell v. Kinlock, 9 Rich. Law, 300.

In Wiser v. Lawler, 189 U. S. 260, Brown, J., said (pp. 264–65): “Attached to these prospectuses was a map entitled ‘Map of the group of mines belonging to the Seven Stars Gold Mining Company.’ It is true that there is neither in the prospectuses nor in the map a distinct assertion that the legal title to the properties mentioned was vested in the Seven Stars Company; but we think that no one can read them without inferring and believing that the Seven Stars was the owner of these properties, and that the net proceeds of their operation would be distributed in dividends to stockholders. As they were circulated as an inducement to take stock in the enterprises, we are bound to interpret them by the effect they would produce upon an ordinary mind. Andrews v. Mockford, (1896) 1 Q. B. D. 372. They were, however, even more damaging in their omissions than in their statements. No mention was made of the fact that the title to these properties stood in the names of Lawler and Wells; no allusion to the Cowland agreement, with its provisions for forfeiture, nor to the fact that the only interest of the company was an equitable right to the properties after the sum of $450,000 had been realized from the profits and paid to defendants. In estimating the probability of subscribers being misled by these prospectuses we may take into consideration not only the facts stated, but the facts suppressed. New Brunswick Co. v. Muggeridge, 1 Drewey & Smale, 363. They are entitled to know the cons as well as the pros. Gluckstein v. Barnes, (1900) App. Cas. 240; Hubbard v. Weare, 79 Iowa, 678; Hayward v. Leeson, 175 Mass. 310; In re Leeds and Hanley Theatres, (1902) 2 Ch. Div. 809.”

In Peek v. Gurney, L. R. 6 H. L. 377, Lord Cairns said (p. 403): “Mere non-disclosure of material facts, however morally censurable, however that non-disclosure might be a ground in a proper proceeding at a proper time for setting aside an allotment or a purchase of shares, would in my opinion form no ground for an action in the nature of an action for misrepresentation. There must, in my opinion, be some active misstatement of fact, or, at all events, such a partial and fragmentary statement of fact, as that the withholding of that which is not stated makes that which is stated absolutely false.”

Compare Mitchell, J., in Newell v. Randall, 32 Minn. 171, 172–73: “It is doubtless the general rule that a purchaser, when buying on credit, is not bound to disclose the facts of his financial condition. If he makes no actual misrepresentations, if he is not asked any questions, and does not give any untrue, evasive, or partial answers, his mere silence as to his general bad pecuniary condition, or his indebtedness, will not constitute a fraudulent concealment. 2 Pom. Eq. Jur. §906; Bigelow on Fraud, 36, 37. But this was not a case of mere passive non-disclosure. The object of De Laittre’s inquiry clearly was to ascertain Bauman’s financial condition and ability to pay. Bauman’s statement was in response to that inquiry, and, when he undertook to answer, he was bound to tell the whole truth, and was not at liberty to give an evasive or misleading answer, which, although literally true, was partial, containing only half the truth, and calculated to convey a false impression. The natural construction which would, under the circumstances, be put on this statement is that he had $3,300 capital in his business. It was couched in language calculated to negative the idea that this was merely the gross amount of his assets, and that he owed debts to the extent of two-thirds or the whole of that amount. Such a statement, made under the circumstances it was, might fairly and reasonably be understood as amounting to a representation that he had that amount of capital which was and would remain available, out of which to collect any debt which he might contract with plaintiff. We think this is the way in which men would ordinarily have understood it. It is immaterial that more explicit inquiries by plaintiff would have disclosed the fact of his indebtedness. It does not lie in Bauman’s mouth to say that plaintiff relied too implicitly on this general statement. To tell half a truth only is to conceal the other half. Concealment of this kind, under the circumstances, amounts to a false representation.”

337. The statement is taken from 37 Ch. D. 541, omitting the last part. Arguments are omitted. None of the opinions are given except portions of Lord Herschell’s.

338. The opinion of Stirling, J., is reported in 37 Ch. D. 550. See especially 556–558.

339. “Want of honest belief in the truth of what one asserts, not positive knowledge that it is false, is the essence of the wrong. A man who knows that he is making a reckless assertion about things of which he really knows nothing may not be speaking against his own belief, but he is not speaking according to it, and therefore his conduct is dishonest, and is esteemed fraud by the law.” Pollock, Law of Fraud in British India, 43.

340. For a criticism of the view that the directors all believed the statement, see 6 Law Quarterly Rev. 73; 5 Law Quarterly Rev. 420–422.

341. Schuchardt v. Allens, 1 Wall. 359; Union R. Co. v. Barnes, (C. C. A.) 64 Fed. 80; Pittsburgh Life & Trust Co. v. Northern Life Ins. Co., (C. C. A.) 148 Fed. 674; Foster v. Kennedy, 38 Ala. 359; Morton v. Scull, 23 Ark. 289; Hutchinson v. Gorman, 71 Ark. 305; Davidson v. Jordan, 47 Cal. 351; Bartholomew v. Bushnell, 20 Conn. 271; Fooks v. Waples, 1 Har. (Del.) 131; Manes v. Kenyon, 18 Ga. 291; Cooley v. King, 113 Ga. 1163; Wheeler v. Randall, 48 Ill. 182; Holdom v. Ayer, 110 Ill. 448; Herman v. Foster, 185 Ill. App. 97; Holmes v. Clark, 10 Ia. 423; Scroggin v. Wood, 87 Ia. 497; Boddy v. Henry, 113 Ia. 462; Farmers’ Stock Breeding Ass’n v. Scott, 53 Kan. 534; Campbell v. Hillman, 15 B. Mon. 508; Haynes v. Gould, 83 Me. 344; Cahill v. Applegarth, 98 Md. 493; Emerson v. Brigham, 10 Mass. 197; Pike v. Fay, 101 Mass. 134; Cole v. Cassidy, 138 Mass. 437; Holst v. Stewart, 154 Mass. 445; Lillegren v. Burns, 135 Minn. 60; Taylor v. Frost, 39 Miss. 328; Utley v. Hill, 155 Mo. 232; Allen v. Wanamaker, 31 N. J. Law, 370; Williams v. Wood, 14 Wend. 126; Marsh v. Folker, 40 N. Y. 562; Wakeman v. Dalley, 51 N. Y. 27; Kountze v. Kennedy, 147 N. Y. 124; Hamrick v. Hogg, 1 Dev. 350; Taylor v. Leith, 26 Ohio St. 428; Staines v. Shore, 16 Pa. St. 200; Erie Iron Works v. Barber, 106 Pa. St. 125; Lamberton v. Dunham, 165 Pa. St. 129; Deppen v. Light, 228 Pa. St. 79; Gibbs v. Odell, 2 Cold. 132; Weeks v. Burton, 7 Vt. 67 Accord.

In Heilbut v. Buckleton, [1913] A. C. 30, Lord Moulton said (p. 48): “In the history of English law we find many attempts to make persons responsible in damages by reason of innocent misrepresentations, and at times it has seemed as though the attempts would succeed. On the Chancery side of the Court the decisions favoring this view usually took the form of extending the scope of the action for deceit. There was a tendency to recognize the existence of what was sometimes called ‘legal fraud,’ i. e., that the making of an incorrect statement of fact without reasonable grounds, or of one which was inconsistent with information which the person had received or had the means of obtaining, entailed the same legal consequences as making it fraudulently. Such a doctrine would make a man liable for forgetfulness or mistake or even for honestly interpreting the facts known to him or drawing conclusions from them in a way which the Court did not think to be legally warranted. The high-water mark of these decisions is to be found in the judgment pronounced by the Court of Appeal in the case of Peek v. Derry, (1887) 37 Ch. D. 541; (1889) 14 App. Cas. 337, when they laid down that where a defendant has made a misstatement of fact and the Court is of opinion that he had no reasonable grounds for believing that it was true he may be made liable in an action of deceit if it has materially tended to induce the plaintiff to do an act by which he has incurred damage. But on appeal to your Lordships’ House this decision was unanimously reversed, and it was definitely laid down that, in order to establish a cause of action sounding in damages for misrepresentation, the statement must be fraudulent or, what is equivalent thereto, must be made recklessly, not caring whether it be true or not. The opinions pronounced in your Lordships’ House in that case show that both in substance and in form the decision was, and was intended to be, a reaffirmation of the old common law doctrine that actual fraud was essential to an action for deceit, and it finally settled the law that an innocent misrepresentation gives no right of action sounding in damages.

“On the Common Law side of the Court the attempts to make a person liable for an innocent misrepresentation have usually taken the form of attempts to extend the doctrine of warranty beyond its just limits and to find that a warranty existed in cases where there was nothing more than an innocent misrepresentation. The present case is, in my opinion, an instance of this. But in respect of the question of the existence of a warranty the Courts have had the advantage of an admirable enunciation of the true principle of law which was made in very early days by Holt, C. J., with respect to the contract of sale. He says: ‘An affirmation at the time of the sale is a warranty, provided it appear on evidence to be so intended.’ So far as decisions are concerned, this has, on the whole, been consistently followed in the Courts of Common Law. But from time to time there have been dicta inconsistent with it which have, unfortunately, found their way into text-books and have given rise to confusion and uncertainty in this branch of the law. For example, one often sees quoted the dictum of Bayley, J., in Cave v. Coleman, 3 Man. & Ry. 2, where, in respect of a representation made verbally during the sale of a horse, he says that ‘being made in the course of a dealing, and before the bargain was complete, it amounted to a warranty’—a proposition that is far too sweeping and cannot be supported. A still more serious deviation from the correct principle is to be found in a passage in the judgment of the Court of Appeal in DeLassalle v. Guildford, [1901] 2 K. B. 215, at p. 221, which was cited to us in the argument in the present case. In discussing the question whether a representation amounts to a warranty or not the judgment says: ‘In determining whether it was so intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon a matter of which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and to exercise his judgment.’

“With all deference to the authority of the Court that decided that case, the proposition which it thus formulates cannot be supported. It is clear that the Court did not intend to depart from the law laid down by Holt, C. J., and cited above, for in the same judgment that dictum is referred to and accepted as a correct statement of the law. It is, therefore, evident that the use of the phrase ‘decisive test’ cannot be defended. Otherwise it would be the duty of a judge to direct a jury that if a vendor states a fact of which the buyer is ignorant, they must, as a matter of law, find the existence of a warranty, whether or not the totality of the evidence shows that the parties intended the affirmation to form part of the contract; and this would be inconsistent with the law as laid down by Holt, C. J. It may well be that the features thus referred to in the judgment of the Court of Appeal in that case may be criteria of value in guiding a jury in coming to a decision whether or not a warranty was intended; but they cannot be said to furnish decisive tests, because it cannot be said as a matter of law that the presence or absence of those features is conclusive of the intention of the parties. The intention of the parties can only be deduced from the totality of the evidence, and no secondary principles of such a kind can be universally true.

“It is, my Lords, of the greatest importance, in my opinion, that this House should maintain in its full integrity the principle that a person is not liable in damages for an innocent misrepresentation, no matter in what way or under what form the attack is made. In the present case the statement was made in answer to an inquiry for information. There is nothing which can by any possibility be taken as evidence of an intention on the part of either or both of the parties that there should be a contractual liability in respect of the accuracy of the statement. It is a representation as to a specific thing and nothing more. The judge, therefore, ought not to have left the question of warranty to the jury, and if, as a matter of prudence, he did so in order to obtain their opinion in case of appeal he ought then to have entered judgment for the defendants notwithstanding the verdict.”

But compare Kirkpatrick v. Reeves, 121 Ind. 280; Mendenhall v. Stewart, 18 Ind. App. 262; McLeod v. Tutt, 2 Miss. 288; Searing v. Lum, 2 South, 683; Indianapolis R. Co. v. Tyng, 63 N. Y. 653; Cobb v. Fogalman, 1 Ired. 440; Mason v. Moore, 73 Ohio St. 275; Loper v. Robinson, 54 Tex. 510; Magill v. Coffmann, (Tex. Civ. App.) 129 S. W. 1146; Smith v. Columbus Buggy Co., 40 Utah, 580; Ogden Resort Co. v. Lewis, 41 Utah, 183; Cameron v. Mount, 86 Wis. 477; Palmer v. Goldberg, 128 Wis. 103; Knudson v. George, 157 Wis. 520.

As to whether an action ought not to be allowed for negligence in the use of language, see Smith, Liability for Negligent Language, 14 Harvard Law Rev. 184; Cunningham v. Pease, 74 N. H. 435; Conway National Bank v. Pease, 76 N. H. 319. The English Directors’ Liability Act (1890), 53 & 54 Vict. c. 64, makes directors and others who issue prospectuses liable in certain cases to compensate persons sustaining loss by reason of any untrue statement in the prospectus, unless it is proved that the persons issuing the prospectus had reasonable ground to believe and did believe that the prospectus was true. See also the statute of Oklahoma, Howe v. Martin, 23 Okl. 561, 567.

Liability for statement made recklessly not knowing whether true or not, see: Cooper v. Schlesinger, 111 U. S. 148; Hindman v. First National Bank, (C. C. A.) 112 Fed. 931; Mueller Furnace Co. v. Cascade Foundry Co., 145 Fed. 596; Einstein v. Marshall, 58 Ala. 153; McCoy v. Prince, 11 Ala. App. 388; Stimson v. Helps, 9 Col. 33; Scholfield Gear Co. v. Scholfield, 71 Conn. 1; Upchurch v. Mizell, 50 Fla. 456; Corbett v. Gilbert, 24 Ga. 454; Miller v. John, 208 Ill. 173; Snively v. Meixsell, 97 Ill. App. 365; West v. Wright, 98 Ind. 335; Graves v. Lebanon Bank, 10 Bush, 23; Stone v. Denny, 4 Met. 151; Fisher v. Mellen, 103 Mass. 503; Beebe v. Knapp, 28 Mich. 53; Stone v. Covell, 29 Mich. 359; Bullitt v. Farrar, 42 Minn. 8; Hamlin v. Abell, 120 Mo. 188; Chase v. Rusk, 90 Mo. App. 25; Ruddy v. Gunby, (Mo.) 180 S. W. 1043; Rowell v. Chase, 61 N. H. 135; Shackett v. Bickford, 74 N. H. 57; Zabriskie v. Smith, 13 N. Y. 322; Bennett v. Judson, 21 N. Y. 238; Taylor v. Commercial Bank, 174 N. Y. 181; Bell v. James, 128 App. Div. 241; Whitehurst v. Life Ins. Co., 149 N. C. 273; Cawston v. Sturgis, 29 Or. 331; Robertson v. Frey, 72 Or. 599; Thompson v. Chambers, 13 Pa. Super. Ct. 213; Mitchell v. Zimmerman, 4 Tex. 75; Katzenstein v. Reid, Murdock & Co., 41 Tex. Civ. App. 106; Benton v. Kuykendall, (Tex. Civ. App.) 160 S. W. 438; Wheeler v. Wheelock, 34 Vt. 553; Agnew v. Hackett, 80 Wash. 236; Cotzhausen v. Simon, 47 Wis. 103.

Compare Ray County Bank v. Hutton, 224 Mo. 42; Ramsey v. Wallace, 100 N. C. 75.

342. “The doctrine seems to be well established by authority that the conduct and admissions of a party operate against him in the nature of an estoppel, wherever, in good conscience and honest dealing, he ought not to be permitted to gainsay them. Thus, negligence becomes constructive fraud,—although, strictly speaking, the actual intention to mislead or deceive may be wanting, and the party may be innocent, if innocence and gross negligence may be deemed compatible; and in such cases the maxim is justly applied to him, that where one of two innocent persons must suffer, he shall suffer who by his own acts occasioned the confidence and loss. The application of the maxim to the case before us is obvious. The principle involved in it is kindred to that of an equitable estoppel, the difference being that the application of the estoppel, instead of the maxim, avoids the loss to the innocent party who has been misled by the conduct of another. See 1 Story’s Eq. Jur., secs. 387, 389; Lucas v. Hart, 5 Iowa, 415; Commonwealth v. Moltz, 10 Pa. St. 527, 531; Smith v. McNeal, 68 Pa. St. 164.” Foster, J., in Stevens v. Dennett, 51 N. H. 324, 335.

“The usual form of expressing the situation which founds an estoppel in pais has been that followed in the rulings given, in which, as in many of the older decisions, it is said that an intent to deceive is a necessary element. But under this formula the jury were not prohibited from finding the intention and the estoppel, if, without more, the plaintiff spoke or acted falsely, knowing or having cause to believe that his words or conduct reasonably might influence the defendant’s action. The more modern statement, that one is responsible for the word or act which he knows, or ought to know, will be acted upon by another, includes the older statement that the estoppel comes from an intention to mislead. White v. Duggan, 140 Mass. 18, 20. Tracy v. Lincoln, 145 Mass. 357, 359. O’Donnell v. Clinton, 145 Mass. 461, 463. Washburn v. Hammond, 151 Mass. 132, 141.” Barker. J., in Stiff v. Ashton, 155 Mass. 130, 133.

343. Milson v. Gerstenberg, 43 App. D. C. 165; Ballard v. Thibodeau, 109 Me. 559; Kiefer v. Rogers, 19 Minn. 32; Hedin v. Minneapolis Medical Institute, 62 Minn. 146; Flaherty v. Till, 119 Minn. 191; Devero v. Sparks, 189 Mo. App. 500; Craig v. Ward, 1 Abb. Dec. 454; Garvin v. Harrell, 27 Okl. 373; Wells v. Driskell, (Tex. Civ. App.) 149 S. W. 205 Accord.

See Water Com’rs v. Robbins, 82 Conn. 623; Auman v. McKibben, 179 Ill. App. 425; Huntress v. Blodgett, 206 Mass. 318; Bank v. Wood, 189 Mo. App. 62.

As to the fiction of “presumption of knowledge,” see: Hicks v. Stevens, 121 Ill. 186; Ward v. Trimble, 103 Ky. 153; Reynolds v. Evans, 123 Md. 365; Unitype Co. v. Ashcraft, 155 N. C. 63; Collins v. Chipman, 41 Tex. Civ. App. 563. Compare Brooks v. Hamilton, 15 Minn. 26.

344. O’Neill v. Conway, 88 Conn. 651; Bethell v. Bethell, 92 Ind. 318; Riley v. Bell, 120 Ia. 618; Gund Brewing Co. v. Peterson, 130 Ia. 301; Davis v. Central Land Co., 162 Ia. 269; Altoona State Bank v. Hart, 82 Kan. 398; Braley v. Powers, 92 Me. 203; Litchfield v. Hutchinson, 117 Mass. 195; Savage v. Stevens, 126 Mass. 207; Teague v. Irwin, 127 Mass. 217; Adams v. Collins, 196 Mass. 422; Huntress v. Blodgett, 206 Mass. 318; Chatham Furnace Co. v. Moffatt, 147 Mass. 403; Riggs v. Thorpe, 67 Minn. 217; Vincent v. Corbitt, 94 Miss. 46; Western Cattle Co. v. Gates, 190 Mo. 391; Paretti v. Rebenack, 81 Mo. App. 494; Leicher v. Keeney, 98 Mo. App. 394, 110 Mo. App. 292; Leach v. Bond, 129 Mo. App. 315; Crosby v. Wells, 73 N. J. Law, 790; Thompson v. Koewing, 79 N. J. Law, 246; Hadcock v. Osmer, 153 N. Y. 604; Modlin v. Roanoke Navigation Co., 145 N. C. 218; Pate v. Blades, 163 N. C. 267; Joines v. Combs, 38 Okl. 380; Gibbens v. Bourland, (Tex. Civ. App.) 145 S. W. 274; Grant v. Huschke, 74 Wash. 257; Tolly v. Poteet, 62 W. Va. 231; Rogers v. Rosenfeld, 158 Wis. 285 Accord. See Roberts v. Anheuser Busch Ass’n, 211 Mass. 449.

In Brownlie v. Campbell, 5 App. Cas. 925, Lord Blackburn said (pp. 952—53): “The Courts of Law had to refer fraud, in which knowledge was an essential ingredient, to a jury. A Court of Equity had to find it for itself, and consequently the judges in Courts of Equity were not driven to be so precisely accurate in stating exactly whether they were going upon the ground that there was a contract or warranty that the thing was so, or whether they were going upon the ground that the party, knowing it was not, and representing that it was, had committed a fraud in doing that. Most of the cases (the leading one is Burrowes v. Loch, 10 Ves. 470, and it is sufficient to mention that, though there were others) when looked at, if they do not absolutely amount to contract, come uncommonly near it. In Burrowes v. Loch a man proposing to lend money on the security of an equitable assignment of a share of what remained due on account of the residue of a testator’s estate, went to the trustee who held the fund and asked him, telling him the facts, ‘I am going to lend money upon the security of this share, has any prior loan upon this been communicated to you so as to make you have prior notice, so as to make that other loan come in before me and cut me out, tell me that, in order that I may know whether I will lend the money or not.’ The party on the other side answered, ‘There has been none such.’ To say that that is not warranty or contract that he has received no such notice is, I think, going very near the wind; if it was not that it was so uncommonly like it, that I cannot make the distinction myself. That would have been sufficient for the Master of the Rolls to say, ‘You have warranted this.’ He also had considerable ground for doubting whether the man had really bona fide forgotten. The man, he seems to have thought, had thought this, ‘I will not take the trouble of a search,’ the fact being that he really knew nothing about this and would not take the trouble of looking, but he boldly made the assertion, ‘I know there is none,’ saying as a fact, ‘I know there is none,’ when the real truth could not be more than ‘I am pretty sure there is none.’ If, when a man thinks it is highly probable that a thing exists, he chooses to say he knows the thing exists, that is really asserting what is false—it is positive fraud. That has been repeatedly laid down, and I think the more it is considered the more clear it becomes. If you choose to say, and say without inquiry, ‘I warrant that,’ that is a contract. If you say, ‘I know it,’ and if you say that in order to save the trouble of inquiring, that is a false representation—you are saying what is false to induce them to act upon it. I think all the cases which have been cited come round to pointing to that, but none of them, as far as I am aware, are in contradiction with that which I have cited from Chief Justice Tindal, and I think there are a good many other authorities to the same effect.”

As to liability where defendant had no reasonable ground to believe what he stated, see Mayer v. Salazar, 84 Cal. 646; McCabe v. Desnoyers, 20 S. D. 581.

Statement as to matter of which obviously defendant could not have personal knowledge, see: Krause v. Cook, 144 Mich. 365; Spead v. Tomlinson, 73 N. H. 46.

345. Part of the statement is an abridgment of the report in 6 Bingham, 396.

346. Hindman v. First Nat. Bank, (C. C. A.) 112 Fed. 931; Hart v. Tallmadge, 2 Day, 381; Young v. Hall, 4 Ga. 95; Endsley v. Johns, 120 Ill. 469; Leonard v. Springer, 197 Ill. 532; Skeels v. Porter, 165 Ia. 255; Carpenter v. Wright, 52 Kan. 221; Bean v. Herrick, 12 Me. 262; Page v. Bent, 2 Met. 371; Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321; Busterud v. Farrington, 36 Minn. 320; Brownlee v. Hewitt, 1 Mo. App. 360; Bingham v. Fish, 86 N. J. Law, 316; White v. Merritt, 7 N. Y. 352; Hubbard v. Briggs, 31 N. Y. 518; Carpenter v. Lee, 5 Yerg. 265; Paddock v. Fletcher, 42 Vt. 389 Accord.

347. Statement of facts and arguments of counsel omitted.

348. See West London Bank v. Kitson, 13 Q. B. D. 360; National Bank v. Kershaw Oil Mill, (C. C. A.) 202 Fed. 90. Compare Tackey v. McBain, [1912] A. C. 186.

349. Iasigi v. Brown, 17 How. 183; Bank of Montreal v. Thayer, 7 Fed. 622; Merchants Nat. Bank v. Armstrong, 65 Fed. 932; Hindman v. First Nat. Bank, (C. C. A.) 98 Fed. 562, 112 Fed. 931; Western Tel. Co. v. Schriver, 141 Fed. 538; Harrison v. Savage, 19 Ga. 310; Slade v. Little, 20 Ga. 371; Hunnewell v. Duxbury, 154 Mass. 286; Nash v. Minnesota Title & Trust Co., 159 Mass. 437; Rawlings v. Bean, 80 Mo. 614; Lembeck v. Gerken, 88 N. J. Law, 329; McCracken v. West, 17 Ohio, 16; Wells v. Cook, 16 Ohio St. 67 Accord. But see Merchants Nat. Bank v. Robison, 8 Utah, 256.

Person or member of a class to whom defendant expected the representation to be passed on, see Shrewsbury v. Blount, 2 Man. & Gr. 475; Gerhard v. Bates, 2 E. & B. 476; Bedford v. Bagshaw, 4 H. & N. 538; Scott v. Brown, [1892] 2 Q. B. 724; Andrews v. Mockford, [1896] 1 Q. B. 372; Warfield v. Clark, 118 Ia. 69; Wells v. Western Tel. Co., 144 Ia. 605; Henry v. Dennis, 95 Me. 24; Chubbuck v. Cleveland, 37 Minn. 466; Baker v. Crandall, 78 Mo. 584; Stuart v. Bank of Staplehurst, 57 Neb. 569; Addington v. Allen, 11 Wend. 374; Hadcock v. Osmer, 153 N. Y. 604; Cazeaux v. Mali, 25 Barb. 578; Converse v. Sickles, 16 App. Div. 49.

350. Statement abridged. Part of opinion omitted.

351. In Allaire v. Whitney, 1 Hill, 484, 487, Cowen, J., says that actual damage is not necessary to an action for fraud; and see also Ingraham, J., in Isman v. Loring, 130 App. Div. 845. The same doctrine is stated in Northrop v. Hill, 57 N. Y. 351; and in Van Velsor v. Seaberger, 35 Ill. App. 598; but neither case was one of merely nominal damages. Leadbetter v. Morris, 3 Jones, Law, 543, sustains the view of Cowen, J. The doctrine of Cowen, J., in Allaire v. Whitney is also cited approvingly in 1 Sedgwick on Damages, 8th ed., § 101, and in 1 Sutherland on Damages, 3d ed., § 10.

But the great weight of authority is against this doctrine, and accords with the view taken by the Minnesota court in the above case of Alden v. Wright: viz., that an action of deceit cannot be maintained in the absence of actual damage. See Pollock, Torts, 9 ed., 190, 291; Pollock, Law of Fraud in British India, 22, 23; 1 Jaggard, Torts, 600, 601; Pigott, Torts, 270, 271; McCarrel v. Hayes, 186 Ala. 323; Winkler v. Jerrue, 20 Cal. App. 555; Morrison v. Martin, 84 Conn. 628; Wesselhoeft v. Schanze, 153 Ill. App. 443; Bailey v. Oatis, 85 Kan. 339; Barnard v. Napier, 167 Ky. 824; Reynolds v. Evans, 123 Md. 365; Brackett v. Perry, 201 Mass. 502; Tregner v. Hazen, 116 App. Div. 829; Badger v. Pond, 120 App. Div. 619.

Compare Skowhegan Bank v. Maxfield, 83 Me. 576 (fraudulently inducing plaintiff to pay debts); Garry v. Garry, 187 Mass. 62 (inducing release of inchoate right of dower); Urtz v. New York R. Co., 202 N. Y. 170 (release of disputed claim).

352. Statement abridged. Part of opinion omitted.

353. In re Pennewell, 119 Fed. 139; Kimmans v. Chandler, 13 Ia. 327; Dunn v. Bishop, (R. I.) 90 Atl. 1073 Accord. Compare Van Vliet Automobile Co. v. Crowell, (Ia.) 149 N. W. 861.

354. A new statement has been made covering but one point and only the portion of the opinion relating to that point is given.

355. Ely v. Stannard, 46 Conn. 124; Goring v. Fitzgerald, 105 Ia. 507; Briggs v. Brushaber, 43 Mich. 330; Currier v. Poor, 155 N. Y. 344; Hoffman v. Toft, 70 Or. 488 Accord.

See Conway Bank v. Pease, 76 N. H. 319.

356. Statement abridged.

357. See Graham v. Peale, (C. C. A.) 173 Fed. 9 (delay in asserting claim); Spreckels v. Gorrill, 152 Cal. 383; Barron Estate Co. v. Woodruff Co., 163 Cal. 561 (preparations for building); Williams Crusher & Pulverizer Co. v. Lyth Tile Co., 150 N. Y. Suppl. 6 (expensive investigation preliminary to contract not made).

358. “But there is one thing which intervenes between the injuria and the damnum and that is the plaintiff’s action which results in damage. It is clear that a misrepresentation cannot of itself directly produce damage. It requires a means of conveyance, and that is the action which it produces, and which results in damage.”

“... It is the action of the plaintiff, and not the damage, which must be materially induced by the misrepresentation.”

“The fallacy is in regarding the damage, and the action resulting in damage, as the same thing.” Moncrieff, Law of Fraud and Misrepresentation, 187.

359. Statement abridged and arguments omitted.

360. Reaffirmed in Sigafus v. Porter, 179 U. S. 116. The authorities on each side of this controverted question are collected in a note to George v. Hesse, (100 Tex. 44) 8 L. R. A. N. S. 804. For later cases, see: Harris v. Neil, 144 Ga. 519 (accord); Trayne v. Boardman, 207 Mass. 581; Crawford v. Armacost, 85 Wash. 622 (contra).

361. Statement abridged; arguments omitted; also part of opinion.

362. Henderson v. Henshall, (C. C. A.) 54 Fed. 320; Tooker v. Alston, 159 Fed. 599; Jordan v. Pickett, 78 Ala. 331; Dingle v. Trask, 7 Col. App. 16; Carondelet Iron Works v. Moore, 78 Ill. 65; Jones v. Foster, 175 Ill. 459; Press v. Hair, 133 Ill. App. 528; Anderson Foundry v. Myers, 15 Ind. App. 385; Moore v. Turbeville, 2 Bibb, 602; Weaver v. Shriver, 79 Md. 530; Silver v. Frazier, 3 All. 382; Parker v. Moulton, 114 Mass. 99; Poland v. Brownell, 131 Mass. 138; Thompson v. Pentecost, 206 Mass. 505; Anderson v. McPike, 86 Mo. 293; Brown v. Kansas City R. Co., 187 Mo. App. 104; Morrill v. Madden, 35 Minn. 493; Grindrod v. Anglo-American Bond Co., 34 Mont. 169; Power v. Turner, 37 Mont. 521; Osborne v. Missouri R. Co., 71 Neb. 180; Saunders v. Hatterman, 2 Ired. 32; Mulholland v. Washington Match Co., 35 Wash. 315; Mosher v. Post, 89 Wis. 602; Farr v. Peterson, 91 Wis. 182; Kaiser v. Nummerdor, 120 Wis. 234; Jacobsen v. Whitely, 138 Wis. 434 Accord.

But see Wilson v. Higbee, 62 Fed. 723; King v. Livingston Mfg. Co., 180 Ala. 118; Mason v. Thornton, 74 Ark. 46; Linington v. Strong, 107 Ill. 295; Robinson v. Reinhart, 137 Ind. 674; Hanks v. McKee, 2 Litt. 227; Bowen v. Carter, 124 Mass. 426; Arnold v. Teele, 182 Mass. 1; Light v. Jacobs, 183 Mass. 206; Bachman v. Travelers Ins. Co., (N. H.) 97 Atl. 223; Fox v. Duffy, 95 App. Div. 202.

“The doctrine ... is not to be extended. It relates merely to seller’s talk.” Sheldon, J., in Townsend v. Niles, 210 Mass. 524, 531.

Equal means of knowledge, see Hill v. Bush, 19 Ark. 522; Strong v. Peters, 2 Root, 93; McDaniell v. Strohecker, 19 Ga. 432; Knight v. Gaultney, 23 Ill. App. 376; Foley v. Cowgill, 5 Blackf. 18; Boddy v. Henry, 113 Ia. 462; Hinchman v. Weeks, 85 Mich. 535; Bradford v. Wright, 145 Mo. App. 623; Conway Nat. Bank v. Pease, 76 N. H. 319; Long v. Warren, 68 N. Y. 426; Crislip v. Cain, 19 W. Va. 438.

Execution of instrument without reading it, see Dunham Lumber Co. v. Holt, 123 Ala. 336; Robinson v. Glass, 94 Ind. 211; Porter v. United Railways, 165 Mo. App. 619; Muller v. Rosenblath, 157 App. Div. 513; Griffin v. Roanoke Lumber Co., 140 N. C. 514.

Reliance on friendship, see Gray v. Reeves, 69 Wash. 374.

363. Arguments omitted; also part of opinion.

364. Martin v. Burford, (C. C. A.) 181 Fed. 922; Hutchinson v. Gorman, 71 Ark. 305; Scott v. Moore, 89 Ark. 321; Montgomery v. McLaury, 143 Cal. 83; Teague v. Hall, 171 Cal. 668; Eames v. Morgan, 37 Ill. 260; Ladd v. Pigott, 114 Ill. 647; Kehl v. Abram, 210 Ill. 218 (public records); Backer v. Pyne, 130 Ind. 288 (records); McGibbons v. Wilder, 78 Ia. 531; Faust v. Hosford, 119 Ia. 97 (records); Scott v. Burnight, 131 Ia. 507; McKee v. Eaton, 26 Kan. 226 (records of patent office); Davis v. Jenkins, 46 Kan. 19 (records of land office); Carpenter v. Wright, 52 Kan. 221 (deed records); Trimble v. Ward, 97 Ky. 748; Martin v. Jordan, 60 Me. 531; Braley v. Powers, 92 Me. 203; Harlow v. Perry, 113 Me. 239; David v. Park, 103 Mass. 501 (records of patent office); Holst v. Stewart, 161 Mass. 516; Rollins v. Quimby, 200 Mass. 162 (mortgage records); Jackson v. Armstrong, 50 Mich. 65; Smith v. Werkheiser, 152 Mich. 177; Faribault v. Sater, 13 Minn. 223; Redding v. Wright, 49 Minn. 322; Union Bank v. Hunt, 76 Mo. 439; Cottrill v. Krum, 100 Mo. 397; Stonemets v. Head, 248 Mo. 243; Shearer v. Hill, 125 Mo. App. 375; Gerner v. Mosher, 58 Neb. 135 (books of corporation); Perry v. Rogers, 62 Neb. 898; Martin v. Hutton, 90 Neb. 34; Bradbury v. Haines, 60 N. H. 123; Blossom v. Barrett, 37 N. Y. 434 (records of court); Gage v. Peetsch, 16 Misc. 291 (mortgage records); Blumenfield v. Stine, 42 Misc. 411 (records); Blacknall v. Rowland, 108 N. C. 554; Bank of North America v. Sturdy, 7 R. I. 109; Handy v. Waldron, 19 R. I. 618 (failure to inquire of references); Hunt v. Barker, 22 R. I. 18 (deed records); Wright v. United States Mfg. Co., (Tex. Civ. App.) 42 S. W. 789 (tax records); Chamberlain v. Rankin, 49 Vt. 133; Morrill v. Palmer, 68 Vt. 1; Jordan v. Walker, 115 Va. 109; City v. Tacoma Light Co., 17 Wash. 458; Simons v. Cissna, 52 Wash. 115; Borde v. Kingsley, 76 Wash. 613; Hall v. Bank, 143 Wis. 303 (records); Woteshek v. Neuman, 151 Wis. 365; Rogers v. Rosenfeld, 158 Wis. 285 Accord.

See Henry v. Allen, 93 Ala. 197; Hanger v. Evins, 38 Ark. 334; Wheeler v. Baars, 33 Fla. 696 (records); Forbes v. Thorpe, 209 Mass. 570. Compare Campbell v. Frankem, 65 Ind. 591.

Assertion of title, see: Crandall v. Parks, 152 Cal. 772; Hale v. Philbrick, 42 Ia. 81; Young v. Hopkins, 6 T. B. Mon. 18; Cobb v. Wright, 43 Minn. 83; Manley v. Johnson, 85 Vt. 262.

Statements as to boundaries, see: Roberts v. Plaisted, 63 Me. 335; Olson v. Orton, 28 Minn. 36; Clark v. Baird, Seld. Notes, 187; Schwenk v. Naylor, 102 N. Y. 683; Roberts v. Holliday, 10 S. D. 576.

Plaintiff informed of truth by third person, see: Moncrief v. Wilkinson, 93 Ala. 373; Haight v. Hayt, 19 N. Y. 464; Grosjean v. Galloway, 82 App. Div. 380.

Refusal of defendant to put representation in writing, Ettlinger v. Weil, 184 N. Y. 179.

365. O’Neill v. Conway, 88 Conn. 651; Antle v. Sexton, 137 Ill. 410; Ledbetter v. Davis, 121 Ind. 119; Speed v. Hollingsworth, 54 Kan. 436; Judd v. Walker, 215 Mo. 312; Miller v. Wissert, 38 Okl. 808; Farris v. Gilder, (Tex. Civ. App.) 115 S. W. 645 Accord.

Compare Cawston v. Sturgis, 29 Or. 331. And see Disney v. Lang, 90 Kan. 309.

366. Credle v. Swindell, 63 N. C. 305; Wamsley v. Currence, 25 W. Va. 543 Accord.

See Cagney v. Cuson, 77 Ind. 494. Compare Lewis v. Jewell, 151 Mass. 345.

Representations as to matter of law, see Eaglesfield v. Londonderry, 4 Ch. D. 693, 702–703; Mutual Life Ins. Co. v. Phinney, 178 U. S. 327; Martin v. Wharton, 38 Ala. 637; Lehman v. Shackleford, 50 Ala. 437; McDonald v. Smith, 95 Ark. 523; Kehl v. Abram, 210 Ill. 218; Hill v. Coates, 127 Ill. App. 196; Clodfelter v. Hulett, 72 Ind. 137; Kinney v. Dodge, 101 Ind. 573; Whitman v. Atchison R. Co., 85 Kan. 150; Thompson v. Phoenix Ins. Co., 75 Me. 55; Stevens v. Odlin, 109 Me. 417; Bilafsky v. Conveyancers Ins. Co., 192 Mass. 504; Kerr v. Shurtleff, 218 Mass. 167; Rose v. Saunders, 38 Hun, 575; Unckles v. Hentz, 18 Misc. 644; Moreland v. Atchison, 19 Tex. 303; Texas Cotton Co. v. Denny, (Tex. Civ. App.) 78 S. W. 557; Gormely v. Gymnastic Ass’n, 55 Wis. 350.

Law of another state, see Travelers Protective Ass’n v. Smith, 183 Ind. 59; Schneider v. Schneider, 125 Ia. 1; Anderson v. Heasley, 95 Kan. 572; Wood v. Roeder, 50 Neb. 476.

367. “This contention assumes that the defrauded party owes to the party who defrauded him a duty to use diligence to discover the fraud. There is no such obligation. One who perpetrates a fraud cannot complain because his victim continues to have a confidence which a more vigilant person could not have.” Carpenter, J., in Smith v. McDonald, 139 Mich. 225, 229. See Barley v. Walford, 9 Q. B. 197, 209. Compare Thaler v. Neidermeyer, 185 Mo. App. 257.

368. The statement has been redrawn and only parts of the opinion are printed.

369. See Hicks v. Stevens, 121 Ill. 186.

370. The statement of the case has been abridged and only a part of the opinion is given.

371. The court decided that the answer was good.

372. In accordance with the opinion of the majority of the court see Clarke v. Postan, 6 Car. & P. 423; Stapp v. Partlow, Dudley, (Ga.) 176; Feazle v. Simpson, 2 Ill. 30 (semble); Holmes v. Johnson, Busbee, 44; Britton v. Granger, 13 Ohio Cir. Ct. Rep. 281, 291.

In accordance with the opinion of the minority see Gregory v. Derby, 8 Car. & P. 749, 750 (semble); Cooper v. Armour, 42 Fed. 215, 217; Sheppard v. Furniss, 19 Ala. 760 (semble); Davis v. Sanders, 133 Ala. 275, 278 (semble); Newfield v. Copperman, 15 Abb. Pr. N. S. 360 (semble); Lawyer v. Loomis, 3 Th. & C. 393, 395; Mitchell v. Donanski, 28 R. I. 94; O’Driscoll v. McBurney, 2 N. & McC. 54 (semble); Heyward v. Cuthbert, 4 McC. 354 (semble).

Compare Swift v. Witchard, 103 Ga. 193.

Arrest without warrant, not followed by prosecution, see Auerbach v. Freeman, 43 App. D. C. 176; McDonald v. National Art Co., 69 Misc. 325.

Search warrant issued but no arrest or seizure of property, see Gulsby v. Louisville R. Co., 167 Ala. 122; Hardin v. Hight, 106 Ark. 190; Chicago R. Co. v. Holliday, 30 Okl. 680; Olson v. Haggerty, 69 Wash. 48.

Application for a warrant, none issued, see Schneider v. Schlang, 159 App. Div. 385. But see Kashare v. Robbins, 135 N. Y. Supp. 1041.

Some jurisdictions, however, require legal process of at least prima facie validity. See Strain v. Irwin, 195 Ala. 414; Smith v. Brown, 119 Md. 236; Tiede v. Fuhr, 264 Mo. 622; Segusky v. Williams, 89 S. C. 414.

Cf. Grissom v. Lawler, 10 Ala. App. 540 (plaintiff gave bond after complaint, so no process issued).

373. Pippet v. Hearn, 5 B. & Al. 634; Rutherford v. Dyer, 146 Ala. 665; Peterson v. Hoyt, 4 Alaska, 713; Harrington v. Tibbet, 143 Cal. 78; Streight v. Bell, 37 Ind. 550; Shaul v. Brown, 28 Ia. 37; Bell v. Keepers, 37 Kan. 64; Potter v. Gjertsen, 37 Minn. 386; Stocking v. Howard, 73 Mo. 25; Hackler v. Miller, 79 Neb. 209; Dennis v. Ryan, 65 N. Y. 385; Kline v. Shuler, 8 Ired. 484; Chicago R. Co. v. Holliday, 30 Okl. 680; Ward v. Sutor, 70 Tex. 343; Strehlow v. Pettit, 96 Wis. 22; McIntosh v. Wales, 21 Wyo. 397 Accord.

Alexander v. West, 6 Ga. App. 72 Contra.

Prosecution under unconstitutional statute: Murten v. Garbe, 91 Neb. 439.

Court without jurisdiction: Calhoun v. Bell, 136 La. 149. Compare Grorud v. Lossl, 48 Mont. 274.

374. 1 Marsh. 12, S. C.

375. The statement of the case has been taken from 1 Marsh. 12; the arguments of counsel are omitted.

376. See Saville v. Roberts, 1 Ld. Ray. 374; 12 Mod. 208, S. C.

“It is difficult to see on what grounds it can be maintained that a charge of breaking the peace conveys no imputation on the character of the person charged, and it may be doubted whether the authority of the cases above mentioned (Byne v. Moore and Saville v. Roberts) would now be recognized on this point.” Clerk & Lindsell, Torts, (5 ed.) 663.

377. Only the opinion of Erle, C. J., is given.

378. Hyde v. Greuch, 62 Md. 577; Pixley v. Reed, 26 Minn. 80 (semble); Apgar v. Woolston, 43 N. J. Law, 57. 65 (semble); Bump v. Betts, 19 Wend. 421; Fortman v. Rottier, 8 Ohio St. 548 Accord.

See Brinkley v. Knight, 163 N. C. 194 (release by constable without a hearing).

379. Parker v. Langley, 10 Mod. 209; Whitworth v. Hall, 2 B. & Ad. 695; Mellor v. Baddeley, 2 Cr. & M. 675; Watkins v. Lee, 5 M. & W. 270; McCann v. Preneveau, 10 Ont. 573; Poitras v. LeBeau, 14 Can. S. C. 742; Stewart v. Sonneborn, 98 U. S. 187; Steel v. Williams, 18 Ind. 161; West v. Hayes, 104 Ind. 251; Olson v. Neal, 63 Ia. 214; Wood v. Laycock, 3 Met. (Ky.) 192; Smith v. Brown, 119 Md. 236; Hamilburgh v. Shepard, 119 Mass. 30; Wilson v. Hale, 178 Mass. 111; Pixley v. Reed, 26 Minn. 80; Lowe v. Wartman, 47 N. J. Law, 413; Clark v. Cleveland, 6 Hill, 344; Searll v. McCracken, 16 How. Pr. 262; Swartwout v. Dickelman, 12 Hun, 358; Johnson v. Finch, 93 N. C. 205; Forster v. Orr. 17 Or. 447; Scheibler v. Steinburg, 129 Tenn. 614; Luby v. Bennett, 111 Wis. 613 Accord.

Consequently, the Statute of Limitations does not run until the prosecution is terminated. Mayor v. Hall, 12 Can. S. C. 74; Printup v. Smith, 74 Ga. 157; Rider v. Kite, 61 N. J. Law, 8.

Also although discharged by a magistrate, plaintiff can not sue if the grand jury afterwards indict. Hartshorn v. Smith, 104 Ga. 235; Weglein v. Trow Directory Co., 152 App. Div. 705. See Schippel v. Norton, 38 Kan. 567; Knott v. Sargent, 125 Mass. 95. Compare Simmons v. Sullivan, 42 App. D. C. 523 (amended or substitute information, altering the charge); Mistich v. Collette, 136 La. 294 (second prosecution instituted after termination of first and still pending).

380. Everything is omitted, except the opinion of the court on the question of the termination of the prosecution.

381. Cotton v. Wilson, Minor, 203; Hurgren v. Union Co., 141 Cal. 585; Chapman v. Woods, 6 Blackf. 504; Richter v. Koster, 45 Ind. 440; Coffey v. Myers, 84 Ind. 105; Kelley v. Sage, 12 Kan. 109; Bell v. Matthews, 37 Kan. 686; Yocum v. Polly, 1 B. Mon. 358; Stanton v. Hart, 27 Mich. 539; Swensgaard v. Davis, 33 Minn. 368 (semble); Kennedy v. Holladay, 25 Mo. App. 503; Casebeer v. Drahoble, 13 Neb. 465; Casebeer v. Rice, 18 Neb. 203; Apgar v. Woolston, 43 N. J. Law, 57; Lowe v. Wartman, 47 N. J. Law, 413; Clark v. Cleveland, 6 Hill, 344 (semble); Moulton v. Beecher, 8 Hun, 100; Fay v. O’Neill, 36 N. Y. 11 (semble); Murray v. Lackey, 2 Murph. 368; Rice v. Ponder, 7 Ired. 390; Hatch v. Cohen, 84 N. C. 602; Marcus v. Bernstein, 117 N. C. 31; Douglas v. Allen, 56 Ohio St. 156; Murphy v. Moore, (Pa.) 11 Atl. 665; Driggs v. Burton, 44 Vt. 124; Woodworth v. Mills, 61 Wis. 44; Manz v. Klippel, 158 Wis. 557; McCrosson v. Cummings, 5 Hawn, 391 Accord.

Massachusetts formerly held to the contrary. Parker v. Farley, 10 Cush. 279. But see Graves v. Dawson, 130 Mass. 78, 133 Mass. 419; Langford v. Boston R. Co., 144 Mass. 431; Briggs v. Shepard Mfg. Co., 217 Mass. 446.

Indictment quashed, see Simmons v. Sullivan, 42 App. D. C. 523; Wilkerson v. McGee, 265 Mo. 574; Reit v. Meyer, 160 App. Div. 752.

Case stricken from docket because sent to wrong court, Sandlin v. Anders, 187 Ala. 473.

Termination of a previous civil action.—If a party sues for a malicious arrest or seizure of property in a civil action, a voluntary abandonment of the latter action by the plaintiff therein is equivalent to its termination in favor of his adversary. Arundell v. White, 14 East, 216; Nicholson v. Coghill, 4 B. & C. 21; Pierce v. Street, 3 B. & Ad. 397; Watkins v. Lee, 5 M. & W. 270; Ross v. Norman, 5 Ex. 359; Emery v. Ginnan, 24 Ill. App. 65; Cardival v. Smith, 109 Mass. 158; Ludwick v. Penny, 158 N. C. 104; Mayer v. Walter, 64 Pa. St. 283. Compare Hales v. Raines, 162 Mo. App. 46 (action recommenced after voluntary nonsuit).

The rule is the same as to malicious prosecutions of civil actions without arrest or attachment in jurisdictions where one is allowed to sue for malicious prosecution of a civil action, without more. Wall v. Toomey, 52 Conn. 35; Marbourg v. Smith, 11 Kan. 554; Mitchell v. Sullivan, 30 Kan. 231. See also Wilson v. Hale, 178 Mass. 111; Luby v. Bennett, 111 Wis. 613.

But an abandonment of the previous proceeding, brought about as a compromise, is not a termination in favor of the original defendant. Wilkinson v. Howel, M. & M. 495; Kinsey v. Wallace, 36 Cal. 462 (semble); Waters v. Winn, 142 Ga. 138; Emery v. Ginnan, 24 Ill. App. 65; Fadner v. Filer, 27 Ill. App. 506; Ruehl Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392; Singer Machine Co. v. Dyer, 156 Ky. 156; Marks v. Gray, 42 Me. 86; Sartwell v. Parker, 141 Mass. 405; Langford v. Boston R. Co., 144 Mass. 431; Rachelman v. Skinner, 46 Minn. 196; McCormick v. Sisson, 7 Cow. 715; Gallagher v. Stoddard, 47 Hun, 101; Atwood v. Beirne, 73 Hun, 547 (but see Reit v. Meyer, 160 App. Div. 752); Welch v. Cheek, 115 N. C. 310; Clark v. Everett, 2 Grant, (Pa.) 416; Mayer v. Walter, 64 Pa. St. 283, 287; Rounds v. Humes, 7 R. I. 535; Russell v. Morgan, 24 R. I. 134. Unless the settlement was obtained by duress of the person or the goods of the original defendant. Morton v. Young, 55 Me. 24; White v. International Textbook Co., 156 Ia. 210.

382. Only the opinion of the court is given.

383. Anon., 6 Mod. 73; Turner v. Ambler, 10 Q. B. 252; Hailes v. Marks, 7 H. & N. 56; Wheeler v. Nesbitt, 24 How. 544, 550; Stewart v. Sonneborn, 98 U. S. 187; Sanders v. Palmer, 55 Fed. 217; Jordan v. Alabama Co., 81 Ala. 220; Price v. Morris, 122 Ark. 382; Mark v. Rich, 43 App. D. C. 182; Marable v. Mayer, 78 Ga. 710; Joiner v. Ocean Co., 86 Ga. 238; Ames v. Snider, 69 Ill. 376; Barrett v. Spaids, 70 Ill. 408; Leyenberger v. Paul, 12 Ill. App. 635; Morrell v. Martin, 17 Ill. App. 336; Adams v. Lisher, 3 Blackf. 241; Green v. Cochran, 43 Ia. 544; Yocum v. Polly, 1 B. Mon. 358; Medcalfe v. Brooklyn Co., 45 Md. 198; Flickinger v. Wagner, 46 Md. 580; Stone v. Crocker, 24 Pick. 81; Coupal v. Ward, 106 Mass. 289; Hamilton v. Smith, 39 Mich. 222; Smith v. Austin, 49 Mich. 286; Webster v. Fowler, 89 Mich. 303; Cox v. Lauritsen, 126 Minn. 128; Burris v. North, 64 Mo. 426; Renfro v. Prior, 22 Mo. App. 403; Kennedy v. Holladay, 25 Mo. App. 503, 519; Harris v. Quincy R. Co., 172 Mo. App. 261; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Woodman v. Prescott, 65 N. H. 224; Heyne v. Blair, 62 N. Y. 19; Miller v. Milligan, 48 Barb. 30; Linitzky v. Gorman, 146 N. Y. Supp. 313; Dietz v. Langfitt, 63 Pa. St. 234; Emerson v. Cochran, 111 Pa. St. 619; Bartlett v. Brown, 6 R. I. 37; Welch v. Boston R. Corp., 14 R. I. 609; Stoddard v. Roland, 31 S. C. 342; Kelton v. Bevins, Cooke, (Tenn.) 90; Evans v. Thompson, 12 Heisk. 534; Johnson v. State, 32 Tex. Cr. 58; South Bank v. Suffolk Bank, 27 Vt. 505; Waring v. Hudspeth, 75 Wash. 534; Bailey v. Gollehon, 76 W. Va. 322; Reicher v. Neacy, 158 Wis. 657 Accord.

Definitions of probable cause, see Gulsby v. Louisville R. Co., 167 Ala. 122; Hanchey v. Brunson, 175 Ala. 236; Runo v. Williams, 162 Cal, 444; Redgate v. Southern R. Co., 24 Cal. App. 573; Mark v. Rich, 43 App. D. C. 182; Pianco v. Joseph, 188 Ill. App. 555; Schwartz v. Boswell, 156 Ky. 103; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Banken v. Locke, 136 La. 155; Chapman v. Nash, 121 Md. 608; Gilecki v. Dolemba, 189 Mich. 107; Cox v. Lauritsen, 126 Minn. 128; Lammers v. Mason, 123 Minn. 204; Wilkerson v. McGhee, 163 Mo. App. 356, 153 Mo. App. 343; Humphries v. Edwards, 164 N. C. 154; Cole v. Reece, 47 Pa. Super. Ct. 212; Waring v. Hudspeth, 75 Wash. 534; Bailey v. Gollehon, 76 W. Va. 322.

384. Only the opinion of the court is given.

385. Conviction reversed.—It is generally agreed that a conviction of the defendant in the criminal proceeding, although subsequently reversed, negatives the absence of probable cause, unless it is also made to appear that the conviction was procured by the fraud of the instigator of the criminal proceeding. Accordingly, a declaration alleging the conviction and its reversal, but not alleging any such fraud, is bad on demurrer. Reynolds v. Kennedy, 1 Wils. 232; Crescent Co. v. Butcher’s Co., 120 U. S. 141; Knight v. Internat. R. Co., 61 Fed. 87; Blackman v. West Co., 126 Fed. 252; Casey v. Dorr, 94 Ark. 433; Carpenter v. Sibley, 153 Cal. 215; Goodrich v. Warner, 21 Conn. 432 (semble); McElroy v. Catholic Press Co., 254 Ill. 290; Dahlberg v. Grace, 178 Ill. App. 97; Adams v. Bicknell, 126 Ind. 210; Moffatt v. Fisher, 47 Ia. 473; Bowman v. Brown, 52 Ia. 437; Olson v. Neal, 63 Ia. 214; Barber v. Scott, 92 Ia. 52; White v. International Text Book Co., 156 Ia. 210; Ross v. Hixon, 46 Kan. 550, 555; Spring v. Besore, 12 B. Mon. 551; Kaye v. Kean, 18 B. Mon. 839; Duerr v. Ky. Co., 132 Ky. 228; Witham v. Gowen, 14 Me. 362; Payson v. Caswell, 22 Me. 212; Sidelinger v. Trowbridge, 113 Me. 537; Whitney v. Peckham, 15 Mass. 243; Dennehey v. Woodsum, 100 Mass. 195, 197; Phillips v. Kalamazoo, 53 Mich. 33 (see Spalding v. Lowe, 56 Mich. 366); Boogher v. Hough, 99 Mo. 183; Nehr v. Dobbs, 47 Neb. 863; Burt v. Place, 4 Wend. 591; Palmer v. Avery, 41 Barb. 290; Francisco v. Schmeelk, 156 App. Div. 335; Root v. Rose, 6 N. D. 575; Thienes v. Francis, 69 Or. 165; Herman v. Brookerhoff, 8 Watts, 240 (semble); Welch v. Boston R. Co., 14 R. I. 609; Hull v. Sprague, 23 R. I. 188; Memphis Co. v. Williamson, 9 Heisk. 314; Saunders v. Baldwin, 112 Va. 431; Topolewski v. Plankinton Packing Co., 143 Wis. 52. Compare Carpenter v. Hood, 172 Mich. 533; Platt v. Bonsall, 136 App. Div. 397.

As to fraudulently procured plea of guilty, see Johnson v. Girdwood, 7 Misc. 651; Holtman v. Bullock, 142 Ky. 335.

In a few jurisdictions the conviction, although set aside, is treated as conclusive evidence of probable cause, proof of fraud in its procurement being inadmissible. Hartshorn v. Smith, 104 Ga. 235; Clements v. Odorless Co., 67 Md. 461, 605 (Bryan, J., diss.); Parker v. Huntington, 7 Gray, 36; Griffis v. Sellars, 4 Dev. & B. 176.

In Virginia, on the contrary, a count alleging a conviction and its reversal is sufficient without any allegation in regard to fraud. Jones v. Finch, 84 Va. 204 (semble); Blanks v. Robinson, 1 Va. Dec. 600; Va. L. J. (1886) 398 (overruling Womack v. Circle, 32 Grat. 324). See Hale v. Boylen, 22 W. Va. 234.

Commitment for grand jury.—The holding of the defendant for the grand jury is prima facie evidence of probable cause. Miller v. Chicago Co., 41 Fed. 898; Ewing v. Sanford, 19 Ala. 605; Price Mercantile Co. v. Cuilla, 100 Ark. 316; Ganea v. Southern Co., 51 Cal. 140; Diemer v. Herber, 75 Cal. 287; Ritchey v. Davis, 11 Ia. 124; Ross v. Hixon, 46 Kan. 550; Danzer v. Nathan, 145 App. Div. 448; Giesener v. Healy, 86 Misc. 16; Ricord v. Central Co., 15 Nev. 167; Ash v. Marlow, 20 Ohio, 119; Raleigh v. Cook, 60 Tex. 438; Hale v. Boylen, 22 W. Va. 234.

Finding of indictment.—The finding of an indictment is prima facie evidence of probable cause. Garrard v. Willet, 4 J. J. Marsh. 628; Sharpe v. Johnston, 76 Mo. 660; Peck v. Chouteau, 91 Mo. 138; Wilkerson v. McGhee, 153 Mo. App. 343, 163 Mo. App. 356.

Failure of the prosecution.—The failure of the original prosecution is in some jurisdictions regarded as prima facie evidence of want of probable cause. Miller v. Chicago R. Co., 41 Fed. 898; Hanchey v. Brunson, 175 Ala. 236; Tucker v. Bartlett, 97 Kan. 163; Straus v. Young, 36 Md. 246; Whitfield v. Westbrook, 40 Miss. 311; Bostick v. Rutherford, 4 Hawks, 83; Downing v. Stone, 152 N. C. 525; Barhigh v. Tammany, 158 Pa. St. 545; McKenzie v. Canning, 42 Utah, 529 (but compare Smith v. Clark, 37 Utah, 116); Jones v. Finch, 84 Va. 204; Waring v. Hudspeth, 75 Wash. 534; Saunders v. First Nat. Bank, 85 Wash. 125; Brady v. Stiltner, 40 W. Va. 289; Fetty v. Huntington Loan Co., 70 W. Va. 688; Winn v. Peckham, 42 Wis. 493; Lawrence v. Cleary, 88 Wis. 473; Manz v. Klippel, 158 Wis. 557. In others there is no such presumption. Incledon v. Berry, 1 Camp. 203 n; Stewart v. Sonneborn, 98 U. S. 187, 195; Thompson v. Beacon Co., 56 Conn. 493; Plummer v. Collins, 1 Boyce, 281; Skidmore v. Bricker, 77 Ill. 164; Bitting v. Ten Eyck, 82 Ind. 421; Prine v. Singer Machine Co., 176 Mich. 300; Williams v. Vanmeter, 8 Mo. 339; Boeger v. Langenberg, 97 Mo. 390; Eckerle v. Higgins, 159 Mo. App. 177 (distinguishing nol. pros. and discharge on preliminary examination—see also Smith v. Glynn, (Mo.) 144 S. W. 149); Harris v. Quincy R. Co., 172 Mo. App. 261; Scott v. Simpson, 1 Sandf. 601; Central Light Co. v. Tyron, 42 Okl. 86; Eastman v. Monastes, 32 Or. 291; Bekkeland v. Lyons, 96 Tex. 255; McIntosh v. Wales, 21 Wyo. 397. See also Grorud v. Lossl, 48 Mont. 274.

Order vacating attachment as prima facie evidence of want of probable cause in action for malicious attachment, see Petruschke v. Kamerer, 131 Minn. 320.

386. The statement of the evidence, the argument for the defendant, and the concurring opinion of Holroyd, J., are omitted.

387. Snow v. Allen, 1 Stark. 502; Abrath v. North Eastern Co., 11 Q. B. Div. 440, 11 App. Cas. 247; Scougall v. Stapleton, 12 Ont. 206; Stewart v. Sonneborn, 98 U. S. 187; Blunt v. Little, 3 Mason, 102; Cuthbert v. Galloway, 35 Fed. 466 (semble); Miller v. Chicago Co., 41 Fed. 898; Coggswell v. Bohn, 43 Fed. 411; Staunton v. Goshorn, 94 Fed. 52; McLeod v. McLeod, 73 Ala. 42; Jordan v. Alabama Co., 81 Ala. 220; Lemay v. Williams, 32 Ark. 166; Bliss v. Wyman, 7 Cal. 257; Jones v. Jones, 71 Cal. 89; Brooks v. Bradford, 4 Col. App. 410; Mark v. Rich, 43 App. D. C. 182; Joiner v. Ocean Co., 86 Ga. 238; Baker v. Langley, 3 Ga. App. 751; Ross v. Innis, 26 Ill. 259; Ames v. Snider, 69 Ill. 376; Barrett v. Spaids, 70 Ill. 408; Brown v. Smith, 83 Ill. 291; Roy v. Goings, 112 Ill. 656; Aldridge v. Churchill, 28 Ind. 62; Paddock v. Watts, 116 Ind. 146; Adams v. Bicknell, 126 Ind. 210; Mesher v. Iddings, 72 Ia. 553; Schippel v. Norton, 38 Kan. 567; Dyer v. Singer Machine Co., 164 Ky. 538; Carrigan v. Graham, 166 Ky. 333; Stevens v. Fassett, 27 Me. 266; Soule v. Winslow, 66 Me. 447; Cooper v. Utterbach, 37 Md. 282; Hyde v. Greuch, 62 Md. 577; Torsch v. Dell, 88 Md. 459; Stone v. Swift, 4 Pick. 389; Monaghan v. Cox, 155 Mass. 487; Stanton v. Hart, 27 Mich. 539; Perry v. Sulier, 92 Mich. 72; Moore v. Northern Co., 37 Minn. 147; Boyd v. Mendenhall, 53 Minn. 274; Alexander v. Harrison, 38 Mo. 258; Burris v. North, 64 Mo. 426; Whitfield v. Westbrook, 40 Miss. 311; Grorud v. Lossl, 48 Mont. 274; Jonasen v. Kennedy, 39 Neb. 313; Magowan v. Rickey, 64 N. J. Law, 402; Hall v. Suydam, 6 Barb. 83; Richardson v. Virtue, 2 Hun, 208; Turner v. Dinnegar, 20 Hun, 465; Beal v. Robeson, 8 Ired. 276; Ash v. Marlow, 20 Ohio, 119; El Reno Gas Co. v. Spurgeon, 30 Okl. 88; Sims v. Jay, 53 Okl. 183; Walter v. Sample, 25 Pa. St. 275; Smith v. Walter, 125 Pa. St. 453; Bartlett v. Brown, 6 R. I. 37; Jackson v. Bell, 5 S. D. 257; Kendrick v. Cypert, 10 Humph. 291; St. Johnsbury Co. v. Hunt, 59 Vt. 294; Forbes v. Hagman, 75 Va. 168; Saunders v. Baldwin, 112 Va. 431; Hightower v. Union Trust Co., 88 Wash. 179; Sutton v. McConnell, 46 Wis. 269; Manz v. Klippel, 158 Wis. 557 Accord.

But see Brewer v. Jacobs, 22 Fed. 217; Stewart v. Mulligan, 11 Ga. App. 660; Smith v. Glynn, (Mo.) 144 S. W. 149; Downing v. Stone, 152 N. C. 525; Ramsey v. Arrott, 64 Tex. 320; Glasgow v. Owen, 69 Tex. 167; Shannon v. Jones, 76 Tex. 141; Tiedeman’s Note, 21 Am. L. Reg. N. S. 582.

The advice must be that of a lawyer, and not a layman. Murphy v. Larson, 77 Ill. 172; McCullough v. Rice, 59 Ind. 580; Olmstead v. Partridge, 16 Gray, 381; Beal v. Robeson, 8 Ired. 276. Even though the layman be a justice of the peace. Stephens v. Gravit, 136 Ky. 479; Coleman v. Heurich, 2 Mack. 189; Straus v. Young, 36 Md. 246; Monaghan v. Cox, 155 Mass. 487 (semble); Gee v. Culver, 12 Or. 228; Brobst v. Ruff, 100 Pa. St. 91; Sutton v. McConnell, 46 Wis. 269. But see Ball v. Rawles, 93 Cal. 222; Sisk v. Hurst, 1 W. Va. 53. Compare Marks v. Hastings, 101 Ala. 165.

The lawyer must have no personal interest in the controversy. Smith v. King, 62 Conn. 515; White v. Carr, 71 Me. 555.

In Hazzard v. Flury, 120 N. Y. 223, the Court of Appeals held that mistaken advice of counsel upon a point of law would not justify the client, since every one is presumed to know the law. Surely that much-abused fiction has seldom been so glaringly perverted in behalf of injustice. See Singer Machine Co. v. Dyer, 156 Ky. 156.

388. Vann v. McCreary, 77 Cal. 434; Boyd v. Mendenhall, 53 Minn. 274; Acton v. Coffman, 74 Ia. 17; Johnson v. Miller, 82 Ia. 693; Sharpe v. Johnston, 76 Mo. 660; Ames v. Rathbun, 37 How. Pr. 289; Laird v. Taylor, 66 Barb. 139; Davenport v. Lynch, 6 Jones, (N. C.) 545; Powell v. Woodbury, 85 Vt. 504 Accord.

Withholding facts from or unfairstatement to counsel. Fowlkes v. Lewis, 10 Ala. App. 543; Rothschach v. Diven, 97 Kan. 38; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Lammers v. Mason, 123 Minn. 204; Bowers v. Walker, 192 Mo. App. 230; Lathrop v. Mathers, 143 App. Div. 376; Baer v. Chambers, 67 Wash. 357; Rogers v. Van Eps, 143 Wis. 396; Boyer v. Bugher, 19 Wyo. 463.

Must state facts which might have been ascertained with reasonable diligence. Weddington v. White, 148 Ky. 671; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Duffy v. Scheerger, 91 Neb. 511. Contra—enough to make full and fair disclosure of known facts, Roby v. Smith, 40 Okl. 280.

389. The statement of facts is taken from 3 L. J. K. B. N. S. 35. The arguments of counsel and the concurring opinions of Patteson and Taunton, JJ., are omitted.

390. Willans v. Taylor, 6 Bing. 183; Busst v. Gibbons, 30 L. J. Ex. N. S. 75; Brown v. Hawkes, [1891] 2 Q. B. 718; Stewart v. Sonneborn, 98 U. S. 187; Brown v. Selfridge, 224 U. S. 189; Sanders v. Palmer, 55 Fed. 217; Staunton v. Goshorn, 94 Fed. 52; Gulsby v. Louisville R. Co., 167 Ala. 122; Louisville R. Co. v. Stephenson, 6 Ala. App. 578; Ball v. Rawles, 93 Cal. 222; Johnson v. Southern R. Co., 157 Cal. 333; Smith v. King, 62 Conn. 515; Carroll v. Perry, 43 App. D. C. 363; Boyd v. Mendenhall, 53 Minn. 274; Helwig v. Beckner, 149 Ind. 131; Indianapolis Traction Co. v. Henby, 178 Ind. 239; Lawrence v. Leathers, 31 Ind. App. 414; Henderson v. McGruder, 49 Ind. App. 682; Atchison Co. v. Allen, 70 Kan. 743; Michael v. Matson, 81 Kan. 360; Metrop. Co. v. Miller, 114 Ky. 754; Moser v. Fable, 164 Ky. 517; Medcalfe v. Brooklyn Co., 45 Md. 198; Thelin v. Dorsey, 59 Md. 539; Campbell v. Baltimore R. Co., 97 Md. 341; Bishop v. Frantz, 125 Md. 183; Good v. French, 115 Mass. 201; Bartlett v. Hawley, 38 Minn. 308; Shafer v. Hertzig, 92 Minn. 171; Williams v. Pullman Co., 129 Minn. 97; Harris v. Quincy R. Co., 172 Mo. App. 261; McNulty v. Walker, 64 Miss. 198; Cohn v. Saidel, 71 N. H. 558; Magowan v. Rickey, 64 N. J. Law, 402; Hartdorn v. Webb Mfg. Co., (N. J.) 75 Atl. 893; Heyne v. Blair, 62 N. Y. 19; Fagnan v. Knox, 66 N. Y. 525; Anderson v. How, 116 N. Y. 336; L. I. Union v. Seitz, 180 N. Y. 243; Viele v. Gray, 10 Abb. Pr. 1; McCarthy v. Barrett, 144 App. Div. 727; Galley v. Brennan, 156 App. Div. 443; Stanford v. Grocery Co., 143 N. C. 419; Humphries v. Edwards, 164 N. C. 154; Dunnington v. Loeser, (Okl.) 149 Pac. 1161; Leahey v. March, 155 Pa. St. 458; Roessing v. Pittsburgh R. Co., 226 Pa. St. 523; McCoy v. Kalbach, 242 Pa. St. 123; Cooper v. Flemming, 114 Tenn. 40; Landa v. Obert, 45 Tex. 539; Finigan v. Sullivan, 65 Wash. 625; Bailey v. Gollehon, 76 W. Va. 322 Accord. But see Wilson v. Thurlow, 156 Ia. 656; Griffin v. Dearborn, 210 Mass. 308.

391. Abrath v. North Eastern Co., 11 Q. B. Div. 440, 448, 455; Wiggin v. Coffin, 3 Story, 1; Johnson v. Ebberts, 11 Fed. 129, 6 Sawy. 538, S. C.; Brewer v. Jacobs, 22 Fed. 217; Gulsby v. Louisville R. Co., 167 Ala. 122; Hammond v. Rowley, 86 Conn. 6; Coleman v. Allen, 79 Ga. 637; South Western Co. v. Mitchell, 80 Ga. 438; Stewart v. Mulligan, 11 Ga. App. 660; McElroy v. Catholic Press Co., 254 Ill. 290; White v. International Text Book Co., 156 Ia. 210; Foltz v. Buck, 89 Kan. 381; Metrop. Co. v. Miller, 114 Ky. 754; Pullen v. Glidden, 66 Me. 202; Wills v. Noyes, 12 Pick. 324; Mitchell v. Wall, 111 Mass. 492; Ross v. Langworthy, 13 Neb. 492; Callahan v. Kelso, 170 Mo. App. 338; Gee v. Culver, 13 Or. 598; Squires v. Job, 50 Pa. Super. Ct. 289; Culberston v. Cabeen, 29 Tex. 247, 256; Sebastian v. Cheney, (Texas) 24 S. W. 970; Barron v. Mason, 31 Vt. 189, 198; Forbes v. Hagman, 75 Va. 168; Spear v. Hiles, 67 Wis. 350; Boyer v. Bugher, 19 Wyo. 463 Accord.

In Abrath v. North Eastern Co., supra, malice was defined by Brett, M. R., p. 448, as “a malicious intention in the mind of the defendant, that is, not with the mere intention of carrying the law into effect,” and by Bowen, L. J., as “a malicious spirit, that is, an indirect and improper motive, and not in furtherance of justice.” See also especially Pullen v. Glidden, and Johnson v. Ebberts, cited supra in this note; Magowan v. Rickey, 64 N. J. Law, 402; Peterson v. Reisdorph, 49 Neb. 529; Nobb v. White, 103 Ia. 352; Brooks v. Bradford, 4 Col. App. 410; Jackson v. Bell, 5 S. D. 257.

Definitions of “malice” in this connection, see Fowlkes v. Lewis, 10 Ala. App. 543; Redgate v. Southern R. Co., 24 Cal. App. 573; Cincinnati R. Co. v. Cecil, 164 Ky. 377; Lammers v. Mason, 123 Minn. 204; Downing v. Stone, 152 N. C. 525; Wright v. Harris, 160 N. C. 542.

392. Farmer v. Darling, 4 Burr. 1971; Busst v. Gibbons, 30 L. J. Ex. N. S. 75; Coulter v. Dublin Co., 60 L. T. 180; Hicks v. Faulkner, 46 L. T. Rep. 127 (affirming S. C. 8 Q. B. D. 167); Wheeler v. Nesbitt, 24 How. 544; Stewart v. Sonneborn, 98 U. S. 191; Wiggin v. Coffin, 3 Story, 1; Burnap v. Albert, Taney, 244; Benson v. McCoy, 36 Ala. 710; Lunsford v. Dietrich, 93 Ala. 565; Bozeman v. Shaw, 37 Ark. 160; Levy v. Brannan, 39 Cal. 485; Harkrader v. Moore, 44 Cal. 144; Porter v. White, 5 Mackey, 180; Harpham v. Whitney, 77 Ill. 32; Krug v. Ward, 77 Ill. 603; Boyd v. Mendenhall, 53 Minn. 274; Frankfurter v. Bryan, 12 Ill. App. 549; Gardiner v. Mays, 24 Ill. App. 286; Newell v. Downs, 8 Blackf. 523; Oliver v. Pate, 43 Ind. 132; Ritchey v. Davis, 11 Ia. 124; Atchison Co. v. Watson, 37 Kan. 773; Gourgues v. Howard, 27 La. Ann. 339; Humphries v. Parker, 52 Me. 502; Medcalfe v. Brooklyn Co., 45 Md. 198; Mitchell v. Wall, 111 Mass. 492; Bartlett v. Hawley, 38 Minn. 308; Greenwade v. Mills, 31 Miss. 464; Sharpe v. Johnston, 59 Mo. 557; Finley v. St. Louis Co., 99 Mo. 559; March v. Vandiver, 181 Mo. App. 281; McKown v. Hunter, 30 N. Y. 625; Farnam v. Feeley, 56 N. Y. 451; Heyne v. Blair, 62 N. Y. 19; Thompson v. Lumley, 50 How. Pr. 105; Voorhes v. Leonard, 1 Th. & C. 148; Johnson v. Chambers, 10 Ired. 287; Gee v. Culver, 12 Or. 228, 13 Or. 598; Schofield v. Ferrers, 47 Pa. St. 194; Dietz v. Langfitt, 63 Pa. St. 234; Gilliford v. Windel, 108 Pa. St. 142; Bell v. Graham, 1 N. & M’C. 278; Campbell v. O’Bryan, 9 Rich. 204; Willis v. Knox, 5 S. C. 474; Caldwell v. Bennett, 22 S. C. 1; Evans v. Thompson, 12 Heisk. 534; Stansell v. Cleveland, 64 Tex. 660; Shannon v. Jones, 76 Tex. 141; Barron v. Mason, 31 Vt. 189; Carleton v. Taylor, 50 Vt. 220; Scott v. Shelor, 28 Grat. 891; Forbes v. Hagman, 75 Va. 168 Accord.

But see, contra, Wilson v. Bowen, 64 Mich. 133.

393. The statement of facts and the argument for the defendant are abridged; the concurring opinions of Coleridge, Wightman, and Erie, JJ., are omitted.

394. In Exch. Ch. 1 T. R. 510, reversing the judgment of the Court of Exchequer in Sutton v. Johnstone, 1 T. R. 493. Judgment of Exch. Ch. affirmed on error, in Dom. Proc. 1 T. R. 784. S. C. 1 Bro. P. C. 76 (2d ed.).

395. 1 T. R. 545.

396. The case alluded to is perhaps Broad v. Ham, 5 B. N. C. 722. By the report of S. C. in 8 Scott, 40, the cause appears to have been tried before Maule, B. (Reporter’s note.)

397. Broad v. Ham, 5 B. N. C. 722; Turner v. Ambler, 10 Q. B. 252; Roret v. Lewis, 5 D. & L. 371; Hinton v. Heather, 14 M. & W. 131; Williams v. Banks, 1 F. & F. 557; Chatfield v. Comerford, 4 F. & F. 1008; Shrosbery v. Osmaston, 37 L. T. Rep. 792; Steed v. Knowles, 79 Ala. 446; Harkrader v. Moore, 44 Cal. 144; Ball v. Rawles, 93 Cal. 222; Galloway v. Stewart, 49 Ind. 156; Donnelly v. Burkett, 75 Ia. 613; Humphries v. Parker, 52 Me. 502, 505; Mitchell v. Wall, 111 Mass. 492; Bartlett v. Hawley, 38 Minn. 308; Peck v. Chouteau, 91 Mo. 138; Chicago Co. v. Kriski, 30 Neb. 215; Howard v. Thompson, 21 Wend. 319; Burlingame v. Burlingame, 8 Cow. 141; Fagnan v. Knox, 66 N. Y. 525; Anderson v. How, 116 N. Y. 336; Wass v. Stephens, 128 N. Y. 123; Wilson v. King, 39 N. Y. Super. Ct. 384; Linitzky v. Gorman, 146 N. Y. Supp. 313; Thienes v. Francis, 69 Or. 165; King v. Colvin, 11 R. I. 582; Scott v. Shelor, 28 Grat. 891; Forbes v. Hagman, 75 Va. 168; Spear v. Hiles, 67 Wis. 350; Baker v. Kilpatrick, 7 Br. Col. L. R. 150; Harcourt v. Aiken, 22 N. Zeal. L. R. 389; Clift v. Birmingham, 4 W. Aust. L. R. 20 Accord.

398. Only the opinion of the court is given.

399. Brown v. Hawkes, [1891] 2 Q. B. 718; Grant v. Book, 25 Nova Scotia, 266 Accord.

Malice may be inferred from want of probable cause. Hanchey v. Brunson, 175 Ala. 236; Hawkins v. Collins, 5 Ala. App. 522; Fowlkes v. Lewis, 10 Ala. App. 543; Price v. Morris, 122 Ark. 382; Redgate v. Southern R. Co., 24 Cal. App. 573; Stewart v. Mulligan, 11 Ga. App. 660; Holliday v. Coleman, 12 Ga. App. 779; McElroy v. Catholic Press Co., 254 Ill. 290; Pontius v. Kimball, 56 Ind. App. 144; Singer Machine Co. v. Dyer, 156 Ky. 156; Mertens v. Mueller, 119 Md. 525; Griffin v. Dearborn, 210 Mass. 308; Moscob v. Frank Ridlon Co., 216 Mass. 193; Krzyszke v. Kamin, 163 Mich. 290; Bowers v. Walker, 192 Mo. App. 230; Grorud v. Lossl, 48 Mont. 274; Galley v. Brennan, 156 App. Div. 443; Kellogg v. Ford, 70 Or. 213; Cole v. Reece, 47 Pa. Super. Ct. 212; Keener v. Jeffries, 54 Pa. Super. Ct. 553; Tufshinsky v. Pittsburgh R. Co., 61 Pa. Super. Ct. 121; Fetty v. Huntington Loan Co., 70 W. Va. 688.

It is not a necessary inference. Hanowitz v. Great Northern R. Co., 122 Minn. 241; Smith v. Glynn, (Mo.) 144 S. W. 149; Chicago R. Co. v. Holliday, 30 Okl. 680; Boyer v. Bugher, 19 Wyo. 463.

It is not inferred from failure to prosecute, Malloy v. Chicago R. Co., 34 S. D. 330, nor from discharge or acquittal. Waring v. Hudspeth, 75 Wash. 534.

Want of probable cause is not to be inferred from malice. Runo v. Williams, 162 Cal. 444; Redgate v. Southern R. Co., 24 Cal. App. 573; Plummer v. Collins, 1 Boyce, 281; McElroy v. Catholic Press Co., 254 Ill. 290; Shadden v. Butler, 164 Ia. 1; Hudson v. Nolen, 142 Ky. 824; Chapman v. Nash, 121 Md. 608; Griffin v. Dearborn, 210 Mass. 308; Callahan v. Kelso, 170 Mo. App. 338; Motsinger v. Sink, 168 N. C. 548; Kellogg v. Ford, 70 Or. 213; McCoy v. Kalbach, 242 Pa. St. 123; Boyer v. Bugher, 19 Wyo. 463; McIntosh v. Wales, 21 Wyo. 397. But see Squires v. Job, 50 Pa. Super. Ct. 289.

400. Only a portion of the opinion is given.

401. Whitehurst v. Ward, 12 Ala. 264; Shannon v. Simms, 146 Ala. 673; Whipple v. Gorsuch, 82 Ark. 252; Adams v. Lisher, 3 Blackf. 241; Bruley v. Rose, 57 Ia. 651; Parkhurst v. Masteller, 57 Ia. 474; White v. International Text Book Co., 156 Ia. 210; Lancaster v. McKay, 103 Ky. 616, 624; Bacon v. Towne, 4 Cush. 217, 241; Threefoot v. Nuckols, 68 Miss. 116; Morris v. Corson, 7 Cow. 281; Turner v. Dinnegar, 20 Hun, 465; Bell v. Pearcy, 5 Ired. 83; Johnson v. Chambers, 10 Ired. 287; Thurber v. Eastern Ass’n, 118 N. C. 129 Accord. See Indianapolis Traction Co. v. Henby, 178 Ind. 239.

402. Watson v. Norbury, Sty. 3, 201; Brown v. Chapman, 1 W. Bl. 427; Cotton v. James, 1 B. & Ad. 128; Whitworth v. Hall, 2 B. & Ad. 695; Hay v. Weakley, 5 Car. & P. 361; Farley v. Danks, 4 E. & B. 493; Johnson v. Emerson, L. R. 6 Ex. 329; Metropolitan Bank v. Pooley, 10 App. Cas. 210; Stewart v. Sonneborn, 98 U. S. 187; Wilkinson v. Goodfellow Co., 141 Fed. 218; McDonald v. Goddard Grocery Co., 184 Mo. App. 432; Lawton v. Green, 5 Hun, 157; Cohen v. Nathaniel Fisher & Co., 135 App. Div. 238; King v. Sullivan, (Tex. Civ. App.) 92 S. W. 51; Carleton v. Taylor, 50 Vt. 220 (semble) Accord.

Similarly an action will lie without proof of special damage for a malicious and unfounded presentation of a petition to wind up a trading company. Quartz Co. v. Eyre, 11 Q. B. Div. 674; Wyatt v. Palmer, [1899] 2 Q. B. 106 (semble).

Malicious inquisition of lunacy, see Lockenour v. Sides, 57 Ind. 360; Dordoni v. Smith, 82 N. J. Law, 525.

Malicious proceeding for suspension or removal of an officer. Fulton v. Ingalls, 165 App. Div. 323.

Malicious prosecution of unfounded claim for a patent. Strelitzer v. Schnaier, 135 App. Div. 384.

403. The arguments of counsel are omitted.

404. Malicious arrest on civil process. Stribler v. Jones, 1 Lev. 276; Daw v. Swain, 1 Sid. 424; Parker v. Langley, Gilb. 163, 10 Mod. 209, S. C.; Goslin v. Wilcock, 2 Wils. 302; Sinclair v. Eldred, 4 Taunt. 7; Pierce v. Street, 3 B. & Ad. 397; Cozer v. Pilling, 4 B. & C. 26; Saxon v. Castle, 6 A. & E. 652; Roret v. Lewis, 5 D. & L. 371; Medina v. Grove, 10 Q. B. 152; Daniels v. Fielding, 16 M. & W. 200 (semble, see Clerk & Lindsell, Torts, 5 ed. 683); Moore v. Guardner, 16 M. & W. 595 (semble); Ross v. Norman, 5 Ex. 359; Ventress v. Rosser, 73 Ga. 534; Joiner v. Ocean Co., 86 Ga. 238; Cardival v. Smith, 109 Mass. 158; Hamilburgh v. Shepard, 119 Mass. 30; Cotter v. Nathan & Hurst Co., 218 Mass. 315; Stanfield v. Phillips, 78 Pa. St. 73; Emerson v. Cochran, 111 Pa. St. 619; Ward v. Sutor, 70 Tex. 343.

Malicious holding to bail. Steer v. Scoble, Cro. Jac. 667; Berry v. Adamson, 6 B. & C. 528; Small v. Gray, 2 Car. & P. 605.

Malicious seizure of property on civil process. Sanders v. Powell, 1 Lev. 129, 1 Sid. 183, 1 Keb. 603, S. C.; Craig v. Hasell, 4 Q. B. 481; Medina v. Grove, 10 Q. B. 152; Redway v. McAndrew, L. R. 9 Q. B. 74; Kirksey v. Jones, 7 Ala. 622; Vesper v. Crane Co., 165 Cal. 36; Juchter v. Boehm, 67 Ga. 534; Wilcox v. McKenzie, 75 Ga. 73; Lawrence v. Hagerman, 56 Ill. 68; Spaids v. Barrett, 57 Ill. 289; Western Co. v. Wilmarth, 33 Kan. 510; Wills v. Noyes, 12 Pick. 324; Savage v. Brewer, 16 Pick. 453; O’Brien v. Barry, 106 Mass. 300; Bobsin v. Kingsbury, 138 Mass. 538; Grant v. Reinhart, 33 Mo. App. 74; Smith v. Smith, 56 How. Pr. 316; Jaksich v. Guisti, 36 Nev. 104; Tyler v. Mahoney, 166 N. C. 509; Fortman v. Rottier, 8 Ohio St. 548; Sommer v. Wilt, 4 S. & R. 19; Mayer v. Walter, 64 Pa. St. 283.

Malicious replevin. O’Brien v. Barry, 106 Mass. 300; McPherson v. Runyon, 41 Minn. 524; Martin v. Rexford, 170 N. C. 540.

Malicious issue of an injunction. Munce v. Black, 7 Ir. C. L. R. 475; McFarlane v. Garrett, 3 Pennewill, 36; Landis v. Wolf, 206 Ill. 392; Krzyszke v. Kamin, 163 Mich. 290; Manlove v. Vick, 55 Miss. 567; Burt v. Smith, 84 App. Div. 47; Coal Co. v. Upson, 40 Ohio St. 17; Hess v. German Co., 37 Or. 297; Batson v. Paris Co., 73 S. C. 368; Powell v. Woodbury, 85 Vt. 504; Williams v. Ainsworth, 121 Wis. 600 (semble).

Malicious procurement of the execution of a search warrant. Cooper v. Booth, 3 Esp. 135, S. C. 1 T. R. 535 (cited); Elsee v. Smith, 2 Chit. R. 304, 1 D. & R. 97, S. C.; Wyatt v. White, 29 L. J. Ex. 193; Carey v. Sheets, 60 Ind. 17, 67 Ind. 375; Whitson v. May, 71 Ind. 269; Olson v. Tvete, 46 Minn. 225; Miller v. Brown, 3 Mo. 94; Boeger v. Langenberg, 97 Mo. 390.

Malicious garnishment. King v. Yarbray, 136 Ga. 212; Lopes v. Connolly, 210 Mass. 487.

Levy of execution under fraudulent judgment. Atlanta Ice Co. v. Reeves, 136 Ga. 294.

See also Hope v. Evered, 17 Q. B. Div. 338; Lea v. Charrington, 23 Q. B. Div. 45; Utting v. Berney, 5 T. L. Rep. 39.

405. Only the opinion of the court on this point is given.

406. Savile v. Roberts, 1 Ld. Ray. 374; Purton v. Honnor, 1 B. & P. 205; Cotterell v. Jones, 11 C. B. 713; Quartz Co. v. Eyre, 11 Q. B. Div. 674; Ray v. Law, Pet. C. C. 207; Tamblyn v. Johnston, 126 Fed. 267, 270; Mitchell v. South Western Co., 75 Ga. 398 (but see Slater v. Kimbro, 91 Ga. 217); Smith v. Mich. Co., 175 Ill. 619; Bonney v. King, 201 Ill. 47; McCormick v. Weber, 187 Ill. App. 290; Smith v. Hintrager, 67 Ia. 109; Cattle Co. v. Nat. Bank, 127 Ia. 153, 158; White v. International Text Book Co., 156 Ia. 310; Cade v. Yocum, 8 La. Ann. 477; McNamee v. Mink, 49 Md. 122; Sup. Lodge v. Unverzagt, 76 Md. 104 (see Clements v. Odorless Co., 67 Md. 461); Woodmansie v. Logan, 1 Penningt. 93; Potts v. Imlay, 1 South. 330; State v. Meyer, 40 N. J. Law, 252; Ely v. Davis, 111 N. C. 24 (semble); Terry v. Davis, 114 N. C. 31; Carpenter v. Hanes, 167 N. C. 551; Cincinnati Co. v. Bruck, 61 Ohio St. 489 (explaining Pope v. Pollock, 46 Ohio St. 367); Kramer v. Stock, 10 Watts, 115; Mayer v. Walter, 64 Pa. St. 283; Muldoon v. Rickey, 103 Pa. St. 110; Emerson v. Cochran, 111 Pa. St. 619, 622; Michell v. Donanski, 28 R. I. 94, 97 (semble); Smith v. Adams, 27 Tex. 28; Johnson v. King, 64 Tex. 226; Nowotny v. Grona, 44 Tex. Civ. App. 325; J. Calisher Co. v. Bloch, (Tex. Civ. App.) 147 S. W. 683; Abbott v. Thorne, 34 Wash. 692; Luby v. Bennett, 111 Wis. 613 (semble); Cross v. Comm. Agency, 18 N. Zeal. L. R. 153 Accord.

Burnap v. Albert, Taney, 244; Cooper v. Armour, 42 Fed 215, 217; Wade v. Nat. Bank, 114 Fed. 377; Eastin v. Stockton Bank, 66 Cal. 123; Berson v. Ewing, 84 Cal. 89; Hoyt v. Macon, 2 Col. 113 (semble); Whipple v. Fuller, 11 Conn. 582; Wall v. Toomey, 52 Conn. 35; Payne v. Donegan, 9 Ill. App. 566 (semble); Lockenour v. Sides, 57 Ind. 360; McCardle v. McGinley, 86 Ind. 538; Whitesell v. Study, 37 Ind. App. 429; Marbourg v. Smith, 11 Kan. 554; Cox v. Taylor, 10 B. Mon. 17; Woods v. Finnell, 13 Bush. 628; Johnson v. Meyer, 36 La. Ann. 333 (semble); Allen v. Codman, 139 Mass. 136 (semble); Wilson v. Hale, 178 Mass. 111; Brand v. Hinchman, 68 Mich. 590; Antcliff v. June, 81 Mich. 477; McPherson v. Runyon, 41 Minn. 524; O’Neill v. Johnson, 53 Minn. 439; Eickhoff v. Fidelity Co., 74 Minn. 139; Virtue v. Creamery Mfg. Co., 123 Minn. 17; Brown v. City, 90 Mo. 377 (semble); Smith v. Burrus, 106 Mo. 94; McCormick Co. v. Willan, 63 Neb. 391; Pangburn v. Bull, 1 Wend. 345; Dempsey v. Lepp, 52 How. Pr. 11; Smith v. Smith, 20 Hun, 555 (semble); Willard v. Holmes, 21 N. Y. Supp. 998 (semble); (but see Willard v. Holmes, 142 N. Y. 492; Paul v. Fargo, 84 App. Div. 9); Kolka v. Jones, 6 N. D. 461; Sawyer v. Shick, 30 Okl. 353; Lipscomb v. Shofner, 96 Tenn. 112; Swepson v. Davis, 109 Tenn. 99; Closson v. Staples, 42 Vt. 209 Contra.

In Eastin v. Stockton Bank, supra, the court said: “The English cases which deny the right to maintain the action, stand upon the ground that the successful defendant is adequately compensated for the damages he sustains by the costs allowed him by the statute. Those costs, it seems, include the attorney’s charges for preparing the case for trial in all its parts, the fees of the witnesses and the court officials, and even the honorarium of the barrister who conducted the case in court. The reason upon which the English rule rests would not, therefore, seem to apply here, where the costs recoverable under the statute are confined to much narrower limits....

“Two other objections made to the maintenance of the action,—first, the claim that if such suits are allowed, litigation will become interminable, because every successful action will be followed by another, alleging malice in the prosecution of the former; and second, that if the defendant may sue for damages sustained by an unfounded prosecution, the plaintiff may equally bring an action when the defendant makes a groundless defence,—are well answered in the article already alluded to [Mr. Lawson’s note, 21 A. L. Reg. N. S. 281, 353]: ‘To the first objection, it is enough to say that the action will never lie for an unsuccessful prosecution, unless begun and carried on with malice and without probable cause. With the burden of this difficult proof upon him, the litigant will need a very clear case before he will be willing to begin a suit of this character. The second argument fails to distinguish between the position of the parties, plaintiff and defendant, in an action at law. The plaintiff sets the law in motion; if he does so groundlessly and maliciously he is the cause of the defendant’s damage. But the defendant stands only on his legal rights—the plaintiff having taken his case to court, the defendant has the privilege of calling upon him to prove it to the satisfaction of the judge or jury, and he is guilty of no wrong in exercising this privilege.’”

In Doane v. Hescock, 155 N. Y. Supp. 210, the court (Appellate Term, First Department) says: “It clearly appears that the complaint does not state facts sufficient to constitute a cause of action for abuse of process, nor are the allegations sufficient to support an action for malicious prosecution of a civil action in this state. There is no allegation that the action resulted in damages to the business or reputation of the defendant or that in any way his personal or property rights were interfered with. The sole allegation as to damage is the trouble, inconvenience, and expense of defending the action. This is not sufficient. Paul v. Fargo, 84 App. Div. 9, 11, 13 (dissenting opinion, 21), 82 N. Y. Supp. 369; Fulton v. Ingalls, 165 App. Div. 323, 326, 151 N. Y. Supp. 130.”

Malicious excessive attachment. Tamblyn v. Johnston, (C. C. A.) 126 Fed. 267; Mills v. Larrance, 217 Ill. 446; Savage v. Brewer, 16 Pick. 453; Paul v. Fargo, 84 App. Div. 9; Sommer v. Wilt, 4 S. & R. 19.

407. The averments of the count are abridged and the arguments of counsel are omitted.

408. Fivaz v. Nicholls, 2 C. B. 501, 514 (semble); Grove v. Brandenburg, 7 Blackf. 234 Accord.

“Pechell v. Watson came to be considered in Flight v. Leman. Its authority was recognized, but the latter case was decided against the plaintiff, who sued for maintenance, on the ground, I own I should have thought the narrow ground, that to instigate a suit was not maintenance, though to support one already instituted was.” Per Coleridge, C. J., in Bradlaugh v. Newdegate, 11 Q. B. Div. 1, 8.

See also Alabaster v. Harness, [1894] 2 Q. B. 897, [1895] 1 Q. B. 339; Grieg v. National Union, 22 T. L. Rep. 274; Goodyear Co. v. White, 2 N. J. Law Journ. 150, 10 Fed. Cas. 752, no. 5602; Breeden v. Frankford Ins. Co., 220 Mo. 327, 373, 378–420, 424–443. Compare Metropolitan Bank v. Pooley, 10 App. Cas. 210, 217–218.

409. Only the opinion of the Chief Justice upon the point of abuse of legal process is given.

410. Heywood v. Collinge, 9 A. & E. 268; King v. Yarbray, 136 Ga. 212; Wicker v. Hotchkiss, 62 Ill. 107 (semble); Emery v. Ginnan, 24 Ill. App. 65 (semble); Whitesell v. Study, 37 Ind. App. 429 (semble); Page v. Cushing, 38 Me. 523; Wood v. Graves, 144 Mass. 365; White v. Apsley Co., 181 Mass. 339; White v. Apsley Co., 194 Mass. 97; Malone v. Belcher, 216 Mass. 209; Pixley v. Reed, 26 Minn. 80 (semble); Rossiter v. Minn. Co., 37 Minn. 296; Bebinger v. Sweet, 6 Hun, 478; Buffalo Co. v. Everest, 30 Hun, 586 (semble); Hazard v. Harding, 63 How. Pr. 326; Prough v. Entriken, 11 Pa. St. 81; Mayer v. Walter, 64 Pa. St. 283; Lauzon v. Charroux, 18 R. I. 467 Accord.

As to the distinction between malicious prosecution and abuse of process, see Waters v. Winn, 142 Ga. 138; Wright v. Harris, 160 N. C. 542; Cooper v. Southern R. Co., 165 N. C. 578.

In Wood v. Graves, 144 Mass. 365, Allen, J., said, p. 366: “There is no doubt that an action lies for the malicious abuse of lawful process, civil or criminal. It is to be assumed, in such a case, that the process was lawfully issued for a just cause, and is valid in form, and that the arrest or other proceeding upon the process was justifiable and proper in its inception. Perhaps the most frequent form of such abuse is by working upon the fears of the person under arrest for the purpose of extorting money or other property, or of compelling him to sign some paper, to give up some claim, or to do some other act, in accordance with the wishes of those who have control of the prosecution. The leading case upon this subject is Grainger v. Hill, 4 Bing. N. C. 212, where the owner of a vessel was arrested on civil process, and the officer, acting under the directions of the plaintiffs in the suit, used the process to compel the defendant therein to give up his ship’s register, to which they had no right. He was held entitled to recover damages, not for maliciously putting the process in force, but for maliciously abusing it, to effect an object not within its proper scope.”

In Mayer v. Walter, 64 Pa. St. 283, Sharswood, J., said: “There is a distinction between a malicious use and a malicious abuse of legal process. An abuse is where the party employs it for some unlawful object, not the purpose which it is intended by the law to effect; in other words, a perversion of it. Thus, if a man is arrested, or his goods seized in order to extort money from him, even though it be to pay a just claim other than that in suit, or to compel him to give up possession of a deed or other thing of value, not the legal object of the process, it is settled that in an action for such malicious abuse it is not necessary to prove that the action in which the process issued has been determined, or to aver that it was sued out without reasonable or probable cause: Grainger v. Hill, 4 Bing. N. C. 212. It is evident that when such a wrong has been perpetrated, it is entirely immaterial whether the proceeding itself was baseless or otherwise. We know that the law is good, but only if a man use it lawfully.

“On the other hand, legal process, civil or criminal, may be maliciously used so as to give rise to a cause of action where no object is contemplated to be gained by it other than its proper effect and execution. As every man has a legal power to prosecute his claims in a court of law and justice, no matter by what motives of malice he may be actuated in doing so, it is necessary in this class of cases to aver and prove that he has acted not only maliciously, but without reasonable or probable cause. It is clearly settled also, that the proceeding must be determined finally before any action lies for the injury; because, as it is said in Arundell v. Tregono, Yelv. 117, the plaintiff will clear himself too soon, viz., before the fact tried, which will be inconvenient; besides, the two determinations might be contrary and inconsistent.”

To proceed unfairly and oppressively but without seeking to compel another to do what he is not obliged to do, e. g., to enter up judgment on a note after 10 P. M. and to bring immediate execution, is not a ground of action according to Docter v. Riedel, 96 Wis. 158. But see dissenting opinion of Marshall, J.

411. Only the opinion of the court is given.

412. Y. B. 7 Hen. VI. 43; 1 Roll. Ab. 101, pl. 1, S. C.; Holliday v. Sterling, 62 Mo. 321 Accord.

413. Edwards v. Wooton, 12 Rep. 35; Peacock v. Raynell, 2 Brownl. 151; Barrow v. Lewellin, Hob. 152; Hick’s Case, Hob. 375; Rex v. Burdett, 4 B. & Ald. 95 Accord.

414. Phillips v. Jansen, 2 Esp. 624; Ward v. Smith, 4 Car. & P. 302; Sharp v. Skues, (C. A.) 25 T. L. Rep. 336; Warnock v. Mitchell, 43 Fed. 428; Western Co. v. Cashman, 149 Fed. 367; Spaits v. Poundstone, 87 Ind. 522; Yousling v. Dare, 122 Ia. 539; Lyon v. Lash, 74 Kan. 745; Buckwalter v. Gossow, 75 Kan. 147; McIntosh v. Matherly, 9 B. Mon. 119; Roberts v. English Co., 155 Ala. 414; Dickinson v. Hathaway, 122 La. 644; Gambrill v. Schooley, 93 Md. 48; Rumney v. Worthley, 186 Mass. 144, 145; Youmans v. Smith, 153 N. Y. 214, 218; Lyle v. Clason, 1 Caines, 581; Waistel v. Holman, 2 Hall, 172; Prescott v. Tousey, 50 N. Y. Super. Ct. 12; Shepard v. Lamphier, 84 Misc. 498; Fonville v. McNease, Dudley, 303; State v. Syphrett, 27 S. C. 29; Fry v. McCord, 95 Tenn. 678; Sylvis v. Miller, 96 Tenn. 94; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

See Ahern v. Maguire, A. M. & O. 39.

If two persons combine in sending a libel to the plaintiff, each is guilty of a publication to the other. Spaits v. Poundstone, 87 Ind. 522, 524, 525.

In Virginia, by statute, an action lies for insulting words written or spoken, although not read or heard by a third person. Rolland v. Batchelder, 84 Va. 664; Strode v. Clement, 90 Va. 553.

415. Part of the case, not relating to publication, is omitted.

416. Wenman v. Ash, 13 C. B. 836; Jones v. Williams, 1 T. L. Rep. 572; Sesler v. Montgomery, 78 Cal. 486, 489 (semble); Luick v. Driscoll, 13 Ind. App. 279; Wilcox v. Moon, 63 Vt. 481; Wilcox v. Moon, 64 Vt. 450 Accord.

But a communication by the libeller to his own wife is said not to be a publication. Wennhak v. Morgan, 20 Q. B. D. 635; Sesler v. Montgomery, 78 Cal. 486; Trumbull v. Gibbons, 3 City H. Rec. 97. But see State v. Shoemaker, 101 N. C. 690. See also Central R. Co. v. Jones, 18 Ga. App. 414 (dictation by officer of corporation to co-employee); Kirschenbaum v. Kaufman (N. Y. City Ct.), 50 N. Y. Law Journ. 406 (defamatory matter uttered to business partner in course of business). It would be more accurate to say that the communication in such cases is privileged. In Powell v. Gelston, [1916] 2 K. B. 615, a libellous letter, privileged as a communication to A, was sent to B, who asked for the information in his own name at A’s request. The letter was opened and read by A only.

417. M’Coombs v. Tuttle, 5 Blackf. 431; Van Cleef v. Lawrence, 2 City H. Rec. 41 Accord.

418. Wyatt v. Gore, Holt, 299; Wenman v. Ash, 13 C. B. 836; Kiene v. Ruff, 1 Ia. 482; Allen v. Wortham, 89 Ky. 485; Rumney v. Worthley, 186 Mass. 144; Schenck v. Schenck, Spencer, 208; State v. McIntire, 115 N. C. 769; Wilcox v. Moon, 64 Vt. 540; Adams v. Lawson, 17 Gratt. 250 Accord.

See Fox v. Broderick, 14 Ir. C. L. R. 453; Callan v. Gaylord, 3 Watts, 321.

Slanderous statements to plaintiff in presence of his counsel, Massee v. Williams, 207 Fed. 222.

Sending libellous letter to plaintiff’s attorney, Brown v. Elm City Lumber Co., 167 N. C. 9.

419. Only the opinion of the court is given.

420. Jones v. Davers, Cro. Eliz. 496; Price v. Jenkings, Cro. Eliz. 865; Amann v. Damm, 8 C. B. N. S. 597; Kiene v. Ruff, 1 Ia. 42; Hurtert v. Weines, 27 Ia. 134; Mielenz v. Quasdorf, 68 Ia. 726; Economopoulos v. A. G. Pollard Co., 218 Mass. 294; Wormouth v. Cramer, 3 Wend. 394 Accord.

See Bechtell v. Shatter, Wright, (Ohio) 107. Conf. Anon., Moore, 182; Gibs v. Jenkins, Hob. 335; Zenobio v. Axtell, 6 T. R. 162; Jenkins v. Phillips, 9 Car. & P. 766; Hickley v. Grosjean, 6 Blackf. 351; Keenholts v. Becker, 3 Den. 346; Rahauser v. Barth, 3 Watts, 28; Zeig v. Ort, 3 Chandl. 26; K. v. H., 20 Wis. 239; Filber v. Dautermann, 26 Wis. 518; Simonsen v. Herald Co., 61 Wis. 626; Pelzer v. Benishy, 67 Wis. 291.

421. Anon., Sty. 70; Force v. Warren, 15 C. B. N. S. 806; Desmond v. Brown, 33 Ia. 13; Marble v. Chapin, 132 Mass. 225, 226; Cameron v. Cameron, 162 Mo. App. 110; Traylor v. White, 185 Mo. App. 325; Broderick v. James, 3 Daly, 481 Accord.

Mailing of post card. Three views have been expressed as to whether the mailing of a post card is a publication.

(1) The mailing is a publication. Sadgrove v. Hole, [1901] 2 K. B. 1, 4, 5 (semble); Logan v. Hodges, 146 N. C. 38; Spence v. Burt, 18 Lanc. L. Rev. 251; Robinson v. Jones, L. R. 4 Ir. 391 (semble); McCann v. Edinburgh Co., L. R. 28 Ir. 24, 28 per Palles, C. B.

(2) The mailing is prima facie a publication. Odgers, Libel and Slander (4 ed.), 153, 281.

(3) The mailing is prima facie not a publication, i. e., is not a publication unless evidence is given that the post card was read in transitu. Steele v. Edwards, 15 Ohio Cir. Ct. 52, 58.

Publication in ignorance of the libel. The dissemination of a libel by a carrier or newsvender or a public library, who neither knew nor ought to have known of the libel and who had no reason to suppose that the newspaper was likely to contain libellous matters, gives no cause of action. Emmens v. Pottle, 16 Q. B. D. 354; Martin v. Trustees of British Museum, 10 T. L. Rep. 338. But the proprietor of a circulating library was held liable for giving out a book containing defamatory statements, because his freedom from negligence did not appear. Vizetelly v. Mudie’s Library, [1900] 2 Q. B. 170. See also Morris v. Ritchie, Court of Sess., March 12, 1902, 4 F. 645.

422. The case has been much abridged.

423. Phillips v. Bradshaw, 167 Ala. 199; Allen v. Fincher, 187 Ala. 599; Pouchan v. Godeau, 167 Cal. 692; United Mine Workers v. Cromer, 159 Ky. 605; Tawney v. Simonson, 109 Minn. 341; Sweaas v. Evenson, 110 Minn. 304; Vanloon v. Vanloon, 159 Mo. App. 255; Jones v. Banner, 172 Mo. App. 132; Bigley v. National Fidelity Co., 94 Neb. 813; Phillips v. Barber, 7 Wend. 439; Church v. New York Tribune Ass’n, 135 App. Div. 30; Rossiter v. New York Press Co., 141 App. Div. 339; Spencer v. Minnick, 41 Okl. 613; McGeary v. Leader Pub. Co., 52 Pa. Super. Ct. 35; Lehmann v. Medack, (Tex. Civ. App.) 152 S. W. 438 Accord. Compare Marshall v. Chicago Herald Co., 185 Ill. App. 224; Willfred Coal Co. v. Sapp, 193 Ill. App. 400; Sweet v. Post Pub. Co., 215 Mass. 450; Corr v. Sun Printing & Pub. Ass’n, 177 N. Y. 131. But see M. v. J., 164 Wis. 39.

A lunatic is liable for torts generally and also for a libel. Mordaunt v. Mordaunt, 39 L. J. Pr. & M. 57, 59. But it is another illustration of the rule of the principal case that defamatory words spoken by a lunatic whose insanity was obvious or known to all the hearers, are not actionable. Yeates v. Reed, 4 Blackf. 463; Irvine v. Gibson, 117 Ky. 306; Dickinson v. Barber, 9 Mass. 225, 227; Bryant v. Jackson, 6 Humph. 199. So also of words spoken and understood as a jest. Donoghue v. Hayes, Hayes, 265. Drunkenness is no defence. Kendrick v. Hopkins, Cary, 133; Gates v. Meredith, 7 Ind. 440.

The old rule of construing defamatory statements in mitiori sensu was long ago exploded. See Odgers, Libel & Slander (5 ed.), 111–113.

Explanation of words by context, see Deitchman v. Bowles, 166 Ky. 285; McCurda v. Lewiston Journal Co., 109 Me. 53; Wing v. Wing, 66 Me. 62; Larsen v. Brooklyn Eagle, 165 App. Div. 4; Guenther v. Ridgway Co., 170 App. Div. 725; Eddy v. Cunningham, 69 Wash. 544; Leuch v. Berger, 161 Wis. 564.

424. Only the opinion of the court is given.

425. Massee v. Williams, (C. C. A.) 207 Fed. 222; Ivie v. King, 167 N. C. 174; Olympia Waterworks v. Mottman, 88 Wash. 694 Accord. See Ex parte Nelson, 251 Mo. 63.

426. A portion of the opinion is omitted.

427. The article was as follows: “He Waxed Eloquent. H. P. Hanson fined ten dollars for refusing payment of car fare.... H. P. Hanson, a real estate and insurance broker of South Boston, emerged from the seething mass of humanity that filled the dock and indulged in a wordy bout with policeman Hogan, who claimed to have arrested Hanson on the charge of evading car fare and being drunk at the same time. The judge agreed that the prisoner was sober, but on the charge of evasion of car fare the evidence warranted the fining of the eloquent occupant of the dock ten dollars without costs, which he paid.”

428. The opinion of the dissenting judges is supported by the decisions and dicta in other jurisdictions. Butler v. Barret, 130 Fed. 944 (semble); Every Evening Co. v. Butler, 144 Fed. 916; Taylor v. Hearst, 107 Cal. 262; Hulbert v. New Co., 111 Ia. 490; Davis v. Marxhausen, 86 Mich. 281, 103 Mich. 315 (semble); Clark v. North American Co., 203 Pa. St. 346 (semble); Hutchinson v. Robinson, 21 N. S. W. L. R. (Law) 130 (semble). Compare Newton v. Grubbs, 155 Ky. 479; Ellis v. Brockton Pub. Co., 198 Mass. 538; Dunlop v. Sundberg, 55 Wash. 609.

429. Compare Gandia v. Pettingill, 222 U. S. 452; Van Wiginton v. Pulitzer Pub. Co., (C. C. A.) 218 Fed. 795; Jones v. R. L. Polk & Co., 190 Ala. 243 (publishing of white woman that she is colored); Ball v. Evening American Co., 237 Ill. 592; MacIntyre v. Fruchter, 148 N. Y. Suppl. 786 (“fit only for negroes to associate with”); Spencer v. Looney, 116 Va. 767 (assertion of white person that he was colored); Galveston Tribune v. Guisti, (Tex. Civ. App.) 134 S. W. 239.

430. This abridged statement has been substituted. The arguments and all but one of the opinions have been omitted.

431. Compare Northrop v. Tibbles, (C. C. A.) 215 Fed. 99. See Smith, Jones v. Hulton, Three Conflicting Views as to a Question of Defamation, 60 University of Pennsylvania Law Rev. 365, 461.

432. The statement of the pleadings is abridged, and only the opinion of Littledale, J., is given. Bayley and Parke, JJ., concurred.

433. That the defendant repeated a defamation, giving the name of the author, seems originally to have been a justification. Northampton’s Case, 12 Rep. 134 (Fourth Resolution). But the name of the author was to be given at the time of repetition, and not for the first time in the plea. Davis v. Lewis, 7 T. R. 17. The words, furthermore, had to be given with sufficient exactness to ground an action against the author. Maitland v. Goldney, 2 East, 426. Doubts were thrown upon the validity of this justification in Lewis v. Walter, 4 B. & Al. 605. The whole doctrine was repudiated, as to libel, in De Crespigny v. Wellesley, 5 Bing. 392, and Tidman v. Ainslie, 10 Ex. 63; and as to slander, in McPherson v. Daniels; Watkin v. Hall, L. R. 3 Q. B. 396.

See to same effect Age-Herald Pub. Co. v. Waterman, 188 Ala. 272; Washington Herald Co. v. Berry, 41 App. D. C. 322; Brewer v. Chase, 121 Mich. 526; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436; Vallery v. State, 42 Neb. 123; Walling v. Commercial Advertiser, 165 App. Div. 26; Galveston Tribune v. Johnson, (Tex. Civ. App.) 141 S. W. 302. See also Whitney v. Moignard, 24 Q. B. D. 630.

In Speight v. Gosnay, 60 L. J. Q. B. 231, the words were not actionable without special damage and the special damage resulted only from unauthorized repetition by a third person.

434. This short statement of the case, taken from 3 Camp. 214, has been substituted for the declaration which is set out at considerable length in the original report.

435. “When our ancestors years ago drew the distinction between libel and slander, they exercised that kind of wise discretion which they always exercised over the whole field of the common law. It would to my mind be very dangerous for us nowadays to relax in any way the rule of law which confines actions for spoken words, in the absence of proof of special damage, to a very limited number of cases.” Vaughan Williams, L. J., in Dauncey v. Holloway, [1901] 2 K. B. 441, 448. See also A. L. Smith, L. J., Id. 447. But compare Colby v. Reynolds, 6 Vt. 489, 493; Tillson v. Robbins, 68 Me. 295.

The distinction sanctioned in the principal case between oral and written scandal still obtains in England and the United States. The definition of a libel as a written publication calculated to bring another into hatred, ridicule, or contempt, is also universally recognized in English-speaking countries. As it is a pure question of fact for the jury whether the publication in a given case comes within this definition, it has not seemed advisable to bring together in this book the multitudinous instances which have been passed upon. A full collection of the cases may be found in Odgers, Libel and Slander, (5 ed.) 18–38; Townshend, Slander and Libel; (4 ed.) 203–221; 25 Cyc. 255–264.

An action for a libel made in the course of judicial proceedings cannot be maintained until the proceedings have terminated in favor of the person defamed, Masterson v. Brown, 72 Fed. 136.

436. There is great diversity of opinion as to what words, imputing the commission of a crime, are actionable per se. The authorities may be classified as follows:—

I. Words imputing a criminal offence punishable corporally.

In Hawes’s Case, March, 113 (speaking against common prayer); Heake v. Moulton, Yelv. 90; Walden v. Mitchell, 2 Ventr. 265; Scoble v. Lee, 2 Show. 32 (regrating); McCabe v. Foot, 15 L. T. Rep. 115; Elliott v. Ailsberry, 2 Bibb, 473 (fornication); M’Gee v. Wilson, Litt. S. C. 187 (unchastity); Mills v. Wimp, 10 B. Mon. 417 (semble); Buck v. Hersey, 31 Me. 558 (drunkenness); Wagaman v. Byers, 17 Md. 183 (adultery); Birch v. Benton, 26 Mo. 153 (whipping one’s wife); Speaker v. McKenzie, 26 Mo. 255 (whipping one’s mother); Billings v. Wing, 7 Vt. 439 (“he snaked his mother out of doors by the hair of her head; it was the day before she died”), the words uttered were held not to give a right of action, since they imputed crimes punishable only by fine, or by imprisonment merely as a consequence of the non-payment of the fine.

II. Words imputing a criminal offence and involving moral turpitude. Sipp v. Coleman, 179 Fed. 997; Taylor v. Gumpert, 96 Ark. 354; Frisbie v. Fowler, 2 Conn. 707; Hoag v. Hatch, 23 Conn. 585; Page v. Merwin, 54 Conn. 426; Kennenberg v. Neff, 74 Conn. 62; Yakavicze v. Valentukevicious, 84 Conn. 350; Reitan v. Goebel, 33 Minn. 151.

III. Words imputing a criminal offence, involving moral turpitude and punishable corporally. Redway v. Gray, 31 Vt. 292 (qualifying Billings v. Wing, 7 Vt. 439); Murray v. McAllister, 38 Vt. 167.

IV. Words imputing a criminal offence involving disgrace. Miller v. Parish, 8 Pick. 384; Brown v. Nickerson, 5 Gray, 1; Kenney v. McLaughlin, 5 Gray, 3; Ranger v. Goodrich, 17 Wis. 78; Mayer v. Schleichter, 29 Wis. 646; Gibson v. Gibson, 43 Wis. 23; Geary v. Bennett, 53 Wis. 444.

V. Words imputing a criminal offence subjecting the offender to infamous punishment. Shipp v. McCraw, 3 Murph. 463; Brady v. Wilson, 4 Hawks. 93; Skinner v. White, 1 Dev. & Bat. 471; Wall v. Hoskins, 5 Ired. 177; Wilson v. Tatum, 8 Jones, (N. C.) 300; McKee v. Wilson, 87 N. C. 300; Harris v. Terry, 98 N. C. 131.

VI. Words imputing an indictable offence involving moral turpitude, or subjecting the offender to an infamous punishment. See Brooker v. Coffin, infra, and cases cited.

VII. Words imputing an indictable offence punishable corporally. Griffin v. Moore, 43 Md. 246; Shafer v. Ahalt, 48 Md. 171; Birch v. Benton, 26 Mo. 153; Curry v. Collins, 37 Mo. 324; Bundy v. Hart, 46 Mo. 460; Lewis v. McDaniel, 82 Mo. 577; Houston v. Woolley, 37 Mo. App. 15, 24; Parsons v. Henry, 177 Mo. App. 329.

As to defamation of a corporation, see Oram v. Hutt, [1913] 1 Ch. 259; Axton Tobacco Co. v. Evening Post Co., 169 Ky. 64; Stone v. Textile Employers Ass’n, 137 App. Div. 655.

437. Only the opinion of the court is given.

438. By 54 & 55 Vict. c. 51, words which impute unchastity or adultery to any woman or girl are actionable, without special damage.

439. This rule has been approved in the following cases: Pollard v. Lyon, 91 U. S. 225; Perdue v. Burnett, Minor, 138; Dudley v. Horn, 21 Ala. 379; Hillhouse v. Peck, 2 St. & P. 395; Heath v. Devaughn, 37 Ala. 677; Kinney v. Hosea, 3 Harring, 77; Pleasanton v. Kronemeier, 29 Del. 81; Pledger v. Hathcock, 1 Ga. 550; Giddens v. Mirk, 4 Ga. 364; Richardson v. Roberts, 23 Ga. 215; Burton v. Burton, 3 Greene, 316; Halley v. Gregg, 74 Ia. 563; Wooten v. Martin, 140 Ky. 781; St. Martin v. Desnoyer, 1 Minn. 156; West v. Hanrahan, 28 Minn. 385; Chaplin v. Lee, 18 Neb. 440; Hendrickson v. Sullivan, 28 Neb. 329; McCuen v. Ludlum, 2 Harr. 12; Johnson v. Shields, 25 N. J. Law, 116; Widrig v. Oyer, 13 Johns. 124; Martin v. Stilwell, 13 Johns. 275; Alexander v. Alexander, 9 Wend. 141; Case v. Buckley, 15 Wend. 327; Bissell v. Cornell, 24 Wend. 354; Demarest v. Haring, 6 Cow. 76; Young v. Miller, 3 Hill, 21; Wright v. Paige, 3 Keyes, 581, 3 Trans. App. 134, S. C.; Crawford v. Wilson, 4 Barb. 504; Johnson v. Brown, 57 Barb. 118; Quinn v. O’Gara, 2 E. D. Sm. 388; Torres v. Huner, 150 App. Div. 798; Dial v. Holter, 6 Ohio St. 228; Alfele v. Wright, 17 Ohio St. 238; Hollingsworth v. Shaw, 19 Ohio St. 430; Davis v. Brown, 27 Ohio St. 326; Davis v. Sladden, 17 Or. 259; Andres v. Koppenheafer, 3 S. & R. 255; Davis v. Carey, 141 Pa. St. 314; Lodge v. O’Toole, 20 R. I. 405; Gage v. Shelton, 3 Rich. 242; Smith v. Brown, 97 S. C. 239; Smith v. Smith, 2 Sneed, 473; McAnally v. Williams, 3 Sneed, 26; Poe v. Grever, 3 Sneed, 664; Payne v. Tancil, 98 Va. 262. See Moore v. Francis, 121 N. Y. 199.

440. Hence it is not actionable (without special damage) to call a man a “bastard,” Paysse v. Paysse, 86 Wash. 349, or a “blackleg and swindler,” McIntyre v. Fruchter, 148 N. Y. Supp. 786; or a “rascal,” Massee v. Williams, 207 Mass. 222, or to call a woman a “bitch.” Craver v. Norton, 114 Ia. 46; Sturdivant v. Duke, 155 Ky. 100; Kerone v. Block, 144 Mo. App. 575; Blake v. Smith, 19 R. I. 476.

But in Fowler v. Dowdney, 2 Moody & R. 119, the words “he is a returned convict” were held actionable, Lord Denman, C. J., saving that though the punishment had been suffered, “still the obloquy remains.” Gainford v. Tuke, Cro. Jac. 536; Boston v. Tatam, Cro. Jac. 623; Beavor v. Hides, 2 Wils. 300; Stewart v. Howe, 17 Ill. 71; Wiley v. Campbell, 5 T. B. Monr. 396; Krebs v. Oliver, 12 Gray, 239; Johnson v. Dicken, 25 Mo. 580; Van Ankin v. Westfall, 14 Johns. 233; Ship v. McCraw, 3 Murphy, 463; Smith v. Stewart, 5 Pa. St. 372; Beck v. Stitzel, 21 Pa. St. 522; Poe v. Grever, 3 Sneed, (Tenn.) 664 Accord.

Compare Carpenter v. Tarrant, C. t. Hardw. 339; French v. Creath, Breese, 12; Barclay v. Thompson, 2 Pen. & W. 148.

441. Only portions of the opinion are given.

442. See also Keck v. Shepard, (Ark.) 180 S. W. 501 (statutory); Craver v. Norton, 114 Ia. 46; Hahn v. Lumpa, 158 Ia. 560; Traylor v. White, 185 Mo. App. 325 (statutory); Culver v. Marx, 157 Wis. 320. On the whole subject, see Veeder, History and Theory of the Law of Defamation, 4 Columbia Law Rev. 33, 52.

443. Only the opinion of the court is given.

444. “We think that the rule as to words spoken of a man in his office or trade is not necessarily confined to offices and trades of the nature and duties of which the court can take judicial notice. The only limitation of which we are aware is, that it does not apply to illegal callings.” Channel, B., in Foulger v. Newcomb, L. R. 2 Ex. 327, 330.

445. Alexander v. Angle, 1 Cr. & J. 143; Sibley v. Tomlins, 4 Tyrwh. 90; Doyley v. Roberts, 3 B. N. C. 835; Brayne v. Cooper, 5 M. & W. 249; James v. Brook, 9 Q. B. 7; Dauncey v. Holloway, [1901] 2 K. B. 441; Hogg v. Dorrah, 2 Porter, (Ala.) 212; Oram v. Franklin, 5 Blackf. 42; Buck v. Hersey, 31 Me. 558; Oakley v. Farrington, 1 Johns. Cas. 129; Van Tassel v. Capron, 1 Den. 250; Ireland v. McGarvish, 1 Sandf. 155; Chomley v. Watson, [1907] Vict. L. R. 502 Accord.

Compare Ware v. Clowney, 24 Ala. 707; Butler v. Howes, 7 Cal. 87; Fowles v. Bowen, 30 N. Y. 20.

“Some of the cases have proceeded to a length which can hardly fail to excite surprise: a clergyman having failed to obtain redress for the imputation of adultery; and a school-mistress having been declared incompetent to maintain an action for a charge of prostitution. Such words were undeniably calculated to injure the success of the plaintiffs in their several professions, but, not being applicable to their conduct therein, no action lay.” Lord Denman, C. J., in Ayre v. Craven, 2 A. & E. 2. See Morasse v. Brooks, 151 Mass. 567, 568.

Imputation of misconduct to a clergyman, see Bishop of Norwich v. Pricket, Cro. Eliz. 1 (heterodoxy in religion); Payne v. Bewmorris, 1 Lev. 248 (incontinence); Pope v. Ramsey, 1 Keb. 542 (knave, &c.); Chaddock v. Briggs, 13 Mass. 248 (drunkenness); Ritchie v. Widdemer, 59 N. J. Law, 290; Demarest v. Haring, 6 Cow. 76 (incontinence); Potter v. N. Y. Journal, 68 App. Div. 95; Hayner v. Cowden, 27 Ohio St. 292 (drunkenness); McMillan v. Birch, 1 Binney, 178 (drunkenness); Starr v. Gardner, 6 Up. Can. Q. B. O. S. 512 (incontinence; but see, contra, Breeze v. Sails, 23 Up. Can. Q. B. 94, incontinence), holding the words actionable.

Parrat v. Carpenter, Cro. El. 502; Nicholson v. Lyne, Cro. El. 94; Anon., Sty. 49 Contra. Compare Gallwey v. Marshall, 9 Ex. 294, 568.

Imputation to teacher of discreditable conduct with pupils. Spears v. McCoy, 155 Ky. 1. Compare Nicholson v. Dillard, 137 Ga. 225.

Imputation to an officer of drunkenness while on duty. Reilly v. Curtis, 83 N. J. Law, 77.

446. Kempe’s Case, Dy. 72, pl. 6; Stanton v. Smith, 2 Ld. Ray. 1480; Brown v. Smith, 13 C. B. 596; Pacific Packing Co. v. Bradstreet, 25 Idaho, 696; Simons v. Burnham, 102 Mich. 189; Traynor v. Sielaff, 62 Minn. 420; Hynds v. Fourteenth Street Store, 159 App. Div. 766; Davis v. Ruff, Cheeves, 17 Accord.

Barnes v. Trundy, 31 Me. 321; Redway v. Gray, 31 Vt. 292 Contra.

See Bell v. Thatcher, Freem. 276; Bryant v. Loxton, 11 Moore, 344; Marino v. Di Marco, 41 App. D. C. 76 (“sells rotten goods”); Taylor v. Church, 1 E. D. Smith, 287; Fowles v. Bowen, 30 N. Y. 20; Bilgrien v. Ulrich, 150 Wis. 532 (habitual cheating).

447. Sumner v. Utley, 7 Conn. 257; Garr v. Selden, 6 Barb. 416; Rodgers v. Kline, 56 Miss. 808; Lynde v. Johnson, 39 Hun. 5 Accord.

448. Johnson v. Robertson, 8 Port. (Ala.) 486; Sumner v. Utley, 7 Conn. 257; Lovejoy v. Whitcomb, 174 Mass. 586; Freisinger v. Moore, 65 N. J. Law, 286; Mattice v. Wilcox, 147 N. Y. 624; Krug v. Pitass, 162 N. Y. 154, 163 N. Y. 600; Lynde v. Johnson, 39 Hun, 12; Hollingsworth v. Spectator Co., 49 App. Div. 16; McIntyre v. Weinert, 195 Pa. St. 52; Holland v. Flick, 212 Pa. St. 201; Gauvreau v. Superior Co., 62 Wis. 403 Accord. See Watson v. Vanderlash, Hetl. 69; Edsall v. Russell, 4 M. & Gr. 1090. Compare Twiggar v. Ossining Printing Co., 161 App. Div. 718; Larsen v. Brooklyn Eagle, 165 App. Div. 4.

Foot v. Brown, 8 Johns. 64 Contra. See Camp v. Martin, 23 Conn. 86; Pratt v. Pioneer Co., 35 Minn. 251.

The imputation of misconduct in an office of honor but not of profit is actionable per se, Booth v. Arnold, [1895] 1 Q. B. 571; Livingston v. McCartin, [1907] Vict. L. R. 48. But the rule is otherwise, according to Alexander v. Jenkins, [1892] 1 Q. B. 797, as to the imputation of unfitness for such an office.

449. Brook v. Wife, Cro. El. 878; Davis v. Taylor, Cro. El. 648; Garford v. Clerk, Cro. El. 857; Miller’s Case, Cro. Jac. 430; Crittal v. Horner, Hob. 219 b; Elyott v. Blague, Sty. 283; Marshall v. Chickall, 1 Sid. 50; Comming’s Case, 2 Sid. 5; Lymbe v. Hockly, 1 Lev. 205; Grimes v. Lovel, 12 Mod. 242; Clifton v. Wells, 12 Mod. 634; Whitfield v. Powel, 12 Mod. 248; Bloodworth v. Gray, 7 M. & G. 334; Watson v. McCarthy, 2 Ga. 57; Nichols v. Guy, 2 Ind. 82; McDonald v. Nugent, 122 Ia. 651; Meteye v. Times Co., 47 La. Ann. 824; Golderman v. Stearns, 7 Gray, 181; Williams v. Holdredge, 22 Barb. 396; Hewitt v. Mason, 24 How. Pr. 366; Upton v. Upton, 51 Hun, 184; Simpson v. Press Co., 33 Misc. 228; Kaucher v. Blinn, 29 Ohio St. 62; Irons v. Field, 9 R. I. 216 Accord.

Bury v. Chappel, Golds. 135; James v. Rutlech, 4 Rep. 17 a; Hunt v. Jones, Cro. Jac. 499; Califord v. Knight, Cro. Jac. 514 Contra.

In Taylor v. Hall, 2 Strange, 1189, it was held not actionable to say that plaintiff had had the pox. Smith’s Case, Noy, 151; Dutton v. Eaton, Al. 30; Carslake v. Mapledoram, 2 T. R. 473; Nichols v. Guy, 2 Ind. 82; Pike v. Van Wormer, 5 How. Pr. 171; Irons v. Field, 9 R. I. 216 Accord. Austin v. White, Cro. El. 214; Anon. Ow. 34; Hobson v. Hudson, Sty. 199, 219 Contra.

450. Only the opinion of the court is given.

451. But see Fitzgerald v. Young, 89 Neb. 693 (imputation of insanity to a teacher).

452. Only the opinion of the court upon this point is given.

453. Lucas v. Cotton, Moore, 79; Underwood v. Parks, 2 Stra. 1200; Ellis v. Buzzell, 60 Me. 209; Baum v. Clause, 5 Hill, 196 Accord.

The rule is the same as to actions for a libel. Leyman v. Latimer, 3 Ex. D. 15, 352; Grand Union Tea Co. v. Lorch, (C. C. A.) 231 Fed. 390; Schuler v. Fischer, 167 Ala. 184; Children v. Shinn, 168 Ia. 531; Castle v. Hunston, 19 Kan. 417; Hanson v. Bristow, 87 Kan. 72; Herald Pub. Co. v. Feltner, 158 Ky. 35; Cook v. Pulitzer Pub. Co., 241 Mo. 326; Merrey v. Guardian Pub. Co., 79 N. J. Law, 177; Willetts v. Scudder, 72 Or. 535. Unless modified by statute, as in Delaware, Florida, Illinois, Maine, Massachusetts, Nebraska, New York, Rhode Island and West Virginia. Delaware Co. v. Croasdale, 6 Houst. 181; Jones v. Townsend, 21 Fla. 431; Palmer v. Adams, 137 Ind. 72; Perry v. Porter, 124 Mass. 338; Fordyce v. Richmond, 78 Neb. 752; McClaugherty v. Cooper, 39 W. Va. 313. In New Hampshire and Pennsylvania, however, the mere truth of the libel is not always a defence, although there is no such statute. Hutchins v. Page, 75 N. H. 215; Burkhart v. N. Am. Co., 214 Pa. St. 39.

454. The statement of the pleadings is abridged; the arguments of counsel and the concurring opinions of Martin, Channell, and Bramwell, BB., are omitted.

455. Rex v. Skinner, Lofft, 55; Thomas v. Churton, 2 B. & S. 475; Dawkins v. Paulet, L. R. 5 Q. B. 94; Dawkins v. Prince Edward, 1 Q. B. D. 499; Law v. Llewellyn, [1906] 1 K. B. 487 (judge of inferior court—Scotch case Allardice v. Robertson, 1 Dow & Cl. 495 not followed); Bottomley v. Brougham, [1908] 1 K. B. 584 (official receiver); Miller v. Hope, 2 Shaw, App. Cas. 125; Yates v. Lansing, 5 Johns. 282, 9 Johns. 395 (but see Aylesworth v. St. John, 25 Hun, 156); Allen v. Earnest, (Tex. Civ. App.) 145 S. W. 1101 Accord.

Kendillon v. Maltby, Car. & M. 402, 2 M. & Rob. 438, S. C., lays down too restricted a rule.

“The publication of defamatory words may be under an absolute or under a qualified or conditional privilege. Under the former there is no liability, although the defamatory words are falsely and maliciously published. The class of absolutely privileged communications is narrow and practically limited to legislative and judicial proceedings and acts of state.” Hall, C. J., in Hassett v. Carroll, 85 Conn. 23, 35.

See Tanner v. Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Minn. 87.

456. Only the opinion of Brett, M. R., is given.

457. Pedley v. Morris, 61 L. J. Q. B. 21 Accord.

See Buckley v. Wood, 4 Rep. 14 b; Hodgson v. Scarlett, 1 B. & Ald. 232; Mackay v. Ford, 5 H. & N. 792; Smallwood v. York, 163 Ky. 139; Rudin v. Fauver, 33 Ohio Cir. Ct. R. 315; Kruegel v. Cockrell (Tex. Ci v. App.) 151 S. W. 352.

“We cannot accept the absolute and unqualified privilege laid down in Munster v. Lamb.... We cannot agree with Brett, M. R., that in a suit against counsel for slander the only inquiry is whether the words were spoken in a judicial proceeding, and if so, the case must be stopped. We quite agree however, with Bramwell, J. A., in Seaman v. Netherclift, that ‘relevant’ and ‘pertinent’ are not the best words that could be used. These words have in a measure a technical meaning, and we all know the difficulty in determining in some cases what is relevant or pertinent. With Lord Chancellor Cairns we prefer the words ‘having reference’ or ‘made with reference,’ or in the language of Shaw, C. J., ‘having relation to the cause or subject-matter.’ And if counsel in the trial of a cause maliciously slanders a party, or witness or any other person in regard to a matter that has no reference or relation to, or connection with, the case before the Court, he is and ought to be answerable in an action by the party injured. This qualification of his privilege in no manner impairs the freedom of discussion so necessary to the proper administration of the law, nor does it subject counsel to actions for slander except in cases in which upon reason and sound public policy he ought to be held answerable. We cannot agree that for the abuse of his privilege he is amenable only to the authority of the Court. Mere punishment by the Court is no recompense to one who has thus been maliciously and wantonly slandered.” Robinson, J., in Maulsby v. Reifsnider, 69 Md. 143, 162. La Porta v. Leonard, 88 N. J. Law, 663; Andrews v. Gardiner, 165 App. Div. 595 Accord.

Defamatory statements in brief of counsel. Brooks v. Bank of Acadia, 138 La. 657.

Pleadings. Nalle v. Oyster, 230 U. S. 165; Carpenter v. Grimes Min. Co., 19 Idaho, 384; Hess v. McKee, 150 Ia. 409; Lebovitch v. Levy, 128 La. 518; Flynn v. Boglarsky, 164 Mich. 513; Rosenberg v. Dworetsky, 139 App. Div. 517; Harris v. Santa Fé Townsite Co., (Tex. Civ. App.) 125 S. W. 77.

In England, statements in a pleading are absolutely privileged, though not relevant. Hodson v. Pare, [1899] 1 Q. B. 455.

In the United States, statements in a pleading not pertinent to the action are not privileged. Union Ins. Co. v. Thomas, 83 Fed. 803; King v. McKissick, 126 Fed. 215; Potter v. Troy, 175 Fed. 128; Myers v. Hodges, 53 Fla. 197; Gaines v. Aetna Ins. Co., 104 Ky. 695; Jones v. Brownlee, 161 Mo. 258; Gilbert v. People, 1 Denio, 41; Kemper v. Fort, 219 Pa. St. 85; Crockett v. McLanahan, 109 Tenn. 517; Miller v. Gust, 71 Wash. 139.

Charges in disbarment proceedings, see Preusser v. Faulhaber, 33 Ohio Cir. Ct. R. 312.

Statements in a petition for pardon. Connollee v. Blanton, (Tex. Ci v. App.) 163 S. W. 404 (held absolutely privileged).

Statement by defendant on trial for crime. Nelson v. Davis, 9 Ga. App. 131.

In Louisiana the statements of parties in judicial proceedings are not absolutely privileged. Lescale v. Joseph Schwartz Co., 116 La. 293, 118 La. 718; Dunn v. Southern Co., 116 La. 431.

458. The arguments and the opinion of Amphlett, J. A., are omitted.

459. Revis v. Smith, 18 C. B. 126; Henderson v. Broomhead, 4 H. & N. 569; Dawkins v. Rokeby, L. R. 7 H. L. 744, L. R. 8 Q. B. 255 (military court of inquiry); Goffin v. Donnelly, 6 Q. B. D. 307 (select committee of House of Commons); Gompas v. White, 6 T. L. R. 20; Watson v. Jones, [1905] A. C. 480 (privilege extends to statement to client and solicitor in preparation of case for trial); Terry v. Fellows, 21 La. Ann. 375; Hunckle v. Voneiff, 69 Md. 173; Dodge v. Gilman, 122 Minn. 177; Runge v. Franklin, 72 Tex. 585; Kennedy v. Hilliard, 10 Ir. C. L. R. 195 Accord. But the English courts do not extend the doctrine to hearings before an administrative board. Atwood v. Chapman, 111 L. T. 726.

See also Hutchinson v. Lewis, 75 Ind. 55; Liles v. Gaster, 42 Ohio St. 631.

In Dawkins v. Lord Rokeby, supra, Lord Penzance said: “It is said that a statement of fact of a libellous nature which is palpably untrue—known to be untrue by him who made it, and dictated by malice—ought to be the subject of a civil remedy, though made in the course of a purely military inquiry. This mode of stating the question assumes the untruth and assumes the malice. If by any process of demonstration, free from the defects of human judgment, the untruth and malice could be set above and beyond all question or doubt, there might be ground for contending that the law of the land should give damages to the injured man.

“But this is not the state of things under which this question of law has to be determined. Whether the statements were, in fact, untrue, and whether they were dictated by malice, are, and always will be, open questions, upon which opinions may differ, and which can only be resolved by the exercise of human judgment. And the real question is, whether it is proper on grounds of public policy to remit such questions to the judgment of a jury. The reasons against doing so are simple and obvious. A witness may be utterly free from malice, and may yet in the eyes of a jury be open to that imputation; or, again, the witness may be cleared by the jury of the imputation, and may yet have to encounter the expenses and distress of a harassing litigation. With such possibilities hanging over his head, a witness cannot be expected to speak with that free and open mind which the administration of justice demands.

“These considerations have long since led to the legal doctrine that a witness in the courts of law is free from any action; and I fail to perceive any reason why the same considerations should not be applied to an inquiry such as the present, and with the same result.”

460. The statement, arguments of counsel and parts of the opinion are omitted.

461. “White v. Carroll, rightly understood, is in harmony with the other cases. The case shows that the court held that the answer given to the question put to the defendant as a witness before the surrogate was not material and pertinent to the inquiry; and further held it was privileged if the defendant, when he gave it, in good faith believed that it was; and whether he so believed, was a question of fact to be determined by the jury. Had the evidence proved that the answer was material and pertinent, the court must have held it privileged, irrespective of the defendant’s belief upon the subject.” Grover, J., in Marsh v. Ellsworth, 50 N. Y. 309, 313.

“It seems to be settled by the English authorities that judges, counsel, parties, and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings; and that the same doctrine is generally held in the American courts, with the qualification, as to parties, counsel, and witnesses, that their statements made in the course of an action must be pertinent and material to the case.” Lord, J., in McLaughlin v. Cowley, 127 Mass. 316, 319.

“The examination of witnesses is regulated by the tribunal before which they testify, and if witnesses answer pertinently questions asked them by counsel which are not excluded by the tribunal, or answer pertinently questions asked them by the tribunal, they ought to be absolutely protected. It is not the duty of a witness to decide for himself whether the questions asked him under the direction of the tribunal are relevant. As the witness is sworn to tell the whole truth relating to the matter concerning which his testimony is taken, he ought also to be absolutely protected in testifying to any matter which is relevant to the inquiry, or which he reasonably believes to be relevant to it. But a witness ought not to be permitted with impunity to volunteer defamatory statements which are irrelevant to the matter of inquiry, and which he does not believe to be relevant. This statement of the law we think, is supported by the decisions in this Commonwealth. The English decisions, perhaps, go somewhat further than this in favor of a witness; certainly they apply the rule liberally for his protection.” Field, J., in Wright v. Lothrop, 149 Mass. 385, 389.

The principal case and the preceding extracts in this note represent the views of the American courts in general.

King v. McKissick, 126 Fed. 215; Lawson v. Hicks, 38 Ala. 279; Wyatt v. Buell, 47 Cal. 624; Hollis v. Meux, 69 Cal. 625; People v. Green, 9 Col. 506; Lester v. Thurmond, 51 Ga. 118; Buschbaum v. Heriot, 5 Ga. App. 521; Spaids v. Barrett, 57 Ill. 289; Fagan v. Fries, 30 Ill. App. 236; Smith v. Howard, 28 Ia. 51; Hawk v. Evans, 76 Ia. 593; Forbes v. Johnson, 11 B. Mon. 48; Morgan v. Booth, 13 Bush, 480; Stewart v. Hall, 83 Ky. 375; Sebree v. Thompson, 126 Ky. 223; Kelly v. Lafitte, 28 La. Ann. 435; Gardemal v. McWilliams, 43 La. Ann. 454; Barnes v. McCrate, 32 Me. 442; Hoar v. Wood, 3 Met. 193; Kidder v. Parkhurst, 3 All. 393; McLaughlin v. Cowley, 127 Mass. 316; Wright v. Lothrop, 149 Mass. 385; Wheaton v. Beecher, 49 Mich. 348; Acre v. Starkweather, 118 Mich. 214; Hastings v. Lusk, 22 Wend. 410; Ring v. Wheeler, 7 Cow. 725; Garr v. Selden, 4 N. Y. 91; Marsh v. Ellsworth, 50 N. Y. 309; Moore v. Manufacturers’ Bank, 123 N. Y. 420, 136 N. Y. 666; Newfield v. Copperman, 15 Abb. Pr. N. S. 360; Perkins v. Mitchell, 31 Barb. 461; Dada v. Piper, 41 Hun, 254; McLaughlin v. Charles, 60 Hun, 239; Beggs v. McCrea, 62 App. Div. 39 (semble); Suydam v. Moffat, 1 Sandf. 459; Perzel v. Tousey, 52 N. Y. Super. Ct. 79; Cooper v. Phipps, 24 Or. 357; Shadden v. McElwee, 86 Tenn. 146; Mower v. Watson, 11 Vt. 536; Dunham v. Powers, 42 Vt. 1; Johnson v. Brown, 13 W. Va. 71; Jennings v. Paine, 4 Wis. 358; Calkins v. Sumner, 13 Wis. 193; Larkin v. Noonan, 19 Wis. 82.

Statements volunteered by witness. Viss v. Calligan, 91 Wash. 673.

Statements in affidavit. Perry v. Perry, 153 N. C. 266; Baggett v. Grady, 154 N. C. 342; Keeley v. Great Northern R. Co., 156 Wis. 181. But see Ritschy v. Garrels, 195 Mo. App. 670.

Affidavit in legislative investigation. Tuohy v. Hassell, 35 Okl. 61.

Defamatory statements at creditors’ meeting. Smith v. Agee, 178 Ala. 627.

Statements in notice of foreclosure sale. Tierney v. Ruppert, 150 App. Div. 863.

Report of grand jury without indictment. Rich v. Eason, (Tex. Civ. App.) 180 S. W. 303.

Statement of guardian as to person making claim against ward’s estate. Marney v. Joseph, 94 Kan. 18.

Letter from one attorney to another, not confined to the matters in litigation. Savage v. Stover, 86 N. J. Law, 478.

Message of a mayor. A communication from the mayor of a city to the common council is absolutely privileged. Trebilcock v. Anderson, 117 Mich. 39.

Official statements of officers of state are absolutely privileged. Chatterton v. Secretary of State, [1895] 2 Q. B. 189; Spalding v. Vilas, 161 U. S. 483.

Statements of administrative officers. Farr v. Valentine, 38 App. D. C. 413; Haskell v. Perkins, 165 Ill. App. 144; Tanner v. Stevenson, 138 Ky. 578; Peterson v. Steenerson, 113 Minn. 87; Johnson v. Marsh, 82 N. J. Law, 4 (notice not to sell liquor to alleged drunkard); Bingham v. Gaynor, 203 N. Y. 27.

462. It is well settled that no action is allowed against a witness for damage caused by his perjury. Damport v. Sympson, Cro. El. 520, Ow. 158, 2 And. 47, s. c.; Eyres v. Sedgewicke, Cro. Jac. 601; Yelv. 142, 2 Roll. R. 197, S. C.; Wimberly v. Thompson, Noy, 6; Harding v. Bodman, Hutt. 11; Coxe v. Smithe, 1 Lev. 119; Taylor v. Bidwell, 65 Cal. 489; Bostwick v. Lewis, 2 Day, 447; Grove v. Brandenburg, 7 Blackf. 239; Dunlap v. Glidden, 31 Me. 435; Severance v. Judkins, 73 Me. 376, 379; Garing v. Fraser, 76 Me. 37; Phelps v. Stearns, 4 Gray, 105; Curtis v. Fairbanks, 16 N. H. 542; Smith v. Lewis, 3 Johns. 157; Cunningham v. Brown, 18 Vt. 123.

See Bell v. Senneff, 83 Ill. 122. Compare Schaub v. O’Ferrell, 116 Md. 131.

463. See also Taylor v. Bidwell, 65 Cal. 489; Curtis v. Fairbanks, 16 N. H. 542; Stevens v. Rowe, 59 N. H. 578.

464. A part of the opinion relating to points of pleading is omitted.

465. The arguments and the concurring opinions of Martin and Channell, BB., are omitted.

466. Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Hope v. Leng, 23 T. L. R. 243; Furniss v. Cambridge News, 23 T. L. R. 705; Todd v. Every Evening Co., (Del.) 62 Atl. 1089 (semble); Blodgett v. Des Moines Co., (Ia.) 113 N. W. 821; Billet v. Publishing Co., 107 La. 751 (semble); McBee v. Fulton, 47 Md. 403; Cowley v. Pulsifer, 137 Mass. 392; Conner v. Standard Co., 183 Mass. 474; Nixon v. Dispatch Co., 101 Minn. 309; Hawkins v. Globe Co., 10 Mo. App. 174; Boogher v. Knapp, 97 Mo. 122; Brown v. Knapp, 213 Mo. 655 (semble); Brown v. Globe Co., 213 Mo. 611; Thompson v. Powning, 15 Nev. 195; Edsall v. Brooks, 17 Abb. Pr. 221; N. Y. Code Civ. Proc., § 1907; Ackerman v. Jones, 37 N. Y. Super. Ct. 42; Salisbury v. Union Co., 45 Hun, 120; Hart v. Sun Co., 79 Hun, 358; Cincinnati Co. v. Timberlake, 10 Ohio St. 548; Metcalf v. Times Co., 20 R. I. 674; Saunders v. Baxter, 6 Heisk. 369; American Co. v. Gamble, 115 Tenn. 663; People v. Glassman, 12 Utah, 238 Accord.

So publication of copies from the register of judgments is privileged. Searles v. Scarlett, [1892] 2 Q. B. 56.

Publication of papers filed in the clerk’s office, but not produced in open court, is not privileged. Meeker v. Post Pub. Co., 45 Col. 355; Cowley v. Pulsifer, 137 Mass. 392; Lundin v. Post Pub. Co., 217 Mass. 213; Park v. Detroit Co., 72 Mich. 560; Barber v. St. Louis Co., 3 Mo. App. 377; Stuart v. Press Co., 83 App. Div. 467; Byers v. Meridian Printing Co., 84 Ohio St. 408; American Co. v. Gamble, 115 Tenn. 663; Houston Pub. Co. v. McDavid, (Tex. Civ. App.) 173 S. W. 467; Ilsley v. Sentinel Co., 133 Wis. 20.

Report of criminal proceeding before magistrate with no jurisdiction. Lee v. Brooklyn Pub. Co., 209 N. Y. 245.

Report of investigation before grand jury. Poston v. Washington R. Co., 36 App. D. C. 359; Sweet v. Post Publishing Co., 215 Mass. 450.

Report in advance of judicial proceeding as to evidence to be adduced. Houston Pub. Co. v. Tiernan, (Tex. Civ. App.) 171 S. W. 542. See Kelly v. Independent Pub. Co., 45 Mont. 127.

Humorous report. Bresslin v. Star Co., 85 Misc. 609.

Matter added to the report. Smith v. New Yorker Staats Zeitung, 154 App. Div. 458.

467. Only the opinion of Lord Coleridge, and that, too, slightly abridged, is given. Lopes, J., concurred.

468. Curry v. Walter, 1 Esp. 456, 1 B. & P. 525; Lewis v. Levy, E. B. & E. 537; Kimber v. Press Association, [1893] 1 Q. B. 65; McBee v. Fulton, 47 Md. 403; Salisbury v. Union Co., 45 Hun, 120 (semble); Metcalf v. Times Co., 20 R. I. 674 (semble); Brown v. Providence Co., 25 R. I. 117 (semble) Accord.

See Duncan v. Thwaites, 3 B. & C. 556; Parsons v. Age Herald Pub. Co., 181 Ala. 439; Todd v. Every Evening Co., (Del.) 62 Atl. 1089; Flues v. New Nonpareil Co., 155 Ia. 290; Cowley v. Pulsifer, 137 Mass. 392; Jones v. Pulitzer Pub. Co., 240 Mo. 200; Stanley v. Webb, 4 Sandf. 21; Matthews v. Beach, 5 Sandf. 256; Cincinnati Co. v. Timberlake, 10 Ohio St. 548; Mengel v. Reading Eagle Co., 241 Pa. St. 367.

The report of ex parte proceedings may be published before their termination, if of such a character that there will be a final decision. Kimber v. Press Association, [1893] 1 Q. B. 65.

469. Only the opinion of the court is given.

470. In 1843, see Hansard’s Parliamentary Debates, 3d series, vol. lxx. pp. 1254–8; and in 1858, see vol. cxlix. pp. 947–82.—Reporter’s Note.

471. See Hansard’s Parliamentary Debates, 3d series, vol. lxx. p. 1254; and vol. cxlix. p. 947.—Reporter’s Note.

472. Garby v. Bennett, 57 N. Y. Sup. Ct. 853; Buckstaff v. Hicks, 94 Wis. 34 (semble—report of proceedings of common council of a city not privileged); Dillon v. Balfour, L. R. 20 Ir. 600 Accord.

The publication must purport to be a report. Lewis v. Hayes, 165 Cal. 527.

473. The concurring opinions of Cockburn, C. J., and Baggallay and Bramwell, JJ. A., and the arguments of counsel are omitted.

474. See Charlton v. Watton, 6 Car. & P. 385; Davison v. Duncan, 7. E. & B. 229, 233; Popham v. Pickburn, 7 H. & N. 891; Davis v. Duncan, L. R. 9 C. P. 396; Allbutt v. General Council, 23 Q. B. D. 400, 411.

By St. 51 & 52 Vict. c. 64, §§ 3 and 4, “§ 3. A fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged: Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter.

Ҥ 4. A fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorized to act by letters patent, Act of Parliament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes, and the publication at the request of any Government office or department, officer of state, commissioner of police, or chief constable of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publication was published or made maliciously: Provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter: Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern and the publication of which is not for the public benefit.

“For the purposes of this section ‘public meeting’ shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.” Kelly v. O’Malley, 6 T. L. R. 62, was decided under this statute.

Newspaper publication of reports of administrative officers. Tilles v. Pulitzer Pub. Co., 241 Mo. 609; Schwarz v. Evening News Co., 84 N. J. Law 486; Bingham v. Gaynor, 203 N. Y. 27. Contra, Madill v. Currie, 168 Mich. 546. See Morasca v. Item Co., 126 La. 426.

Report of investigation by administrative officers. Williams v. Black, 24 S. D. 501.

475. The case has been much abridged.

476. Allbutt v. General Council, 23 Q. B. D. 400 Accord. But see Kimball v. Post Pub. Co., 199 Mass. 248; Peoples Bank v. Goodwin, 148 Mo. App. 364.

Report of proceedings of a church commission. Bass v. Mathews, 69 Wash. 214.

477. Only the opinion of Mellish, L. J., is given.

478. Macdougall v. Knight, 14 App. Cas. 194 (explaining S. C. 17 Q. B. Div. 636); Salisbury v. Union Co., 45 Hun, 120 Accord.

See Annaly v. Trade Co., L. R. 26 Ir. 394.

479. Parsons v. Age Herald Pub. Co., 181 Ala. 439; Washington Herald Co. v. Berry, 41 App. D. C. 322; Lundin v. Post Pub. Co., 217 Mass. 213; Schwarz v. Evening News Co., 84 N. J. Law, 486; Williams v. Black, 24 S. D. 501; Williams Printing Co. v. Saunders, 113 Va. 156 Accord.

But see U. S. v. Journal Co., 197 Fed. 415; Tilles v. Pulitzer Pub. Co., 241 Mo. 609.

“Their Lordships regret to find that there appeared on the one side of this case the time-worn fallacy that some kind of privilege attaches to the profession of the Press as distinguished from the members of the public. The freedom of the journalist is an ordinary part of the freedom of the subject, and to whatever lengths the subject in general may go so also may the journalist, but, apart from statute law, his privilege is no other and no higher. The responsibilities which attach to his power in the dissemination of printed matter may, and in the case of a conscientious journalist do, make him more careful; but the range of his assertions, his criticisms, or his comments is as wide as, and no wider than, that of any other subject. No privilege attaches to his position.” Lord Shaw in Arnold v. King-Emperor, 111 L. T. 324, 325.

480. The statement has been condensed, the facts sufficiently appearing in the opinion of Mellor, J. The arguments of counsel and the concurring opinion of Hannen, J., are omitted.

481. Barbaud v. Hookham, 5 Esp. 109; McDougall v. Claridge, 1 Camp. 267; Dunman v. Bigg, 1 Camp, 269 n.; Todd v. Hawkins, 2 M. & R. 20, 8 Car. & P. 88; Shipley v. Todhunter, 7 Car. & P. 680; Harris v. Thompson, 13 C. B. 333; Maitland v. Bramwell, 2 F. & F. 623; Scarll v. Dixon, 4 F. & F. 250; Cooke v. Wildes, 5 E. & B. 328; Croft v. Stevens, 7 H. & N. 570; Whiteley v. Adams, 15 C. B. N. S. 392; Spill v. Maule, L. R. 4 Ex. 232; Laughton v. Bishop, L. R. 4 P. C. 495; Davies v. Snead, L. R. 5 Q. B. 608; Waller v. Loch, 7 Q. B. D. 619; Cowles v. Potts, 34 L. J. Q. B. 247; Quartz Co. v. Beall, 20 Ch. Div. 501; Royal Aquarium v. Parkinson, [1892] 1 Q. B. 431; Pittard v. Oliver, [1891] 1 Q. B. 474; Phila. Co. v. Quigley, 21 How. 202; Broughton v. McGrew, 39 Fed. 672; Haight v. Cornell, 15 Conn. 74; Etchison v. Pergerson, 88 Ga. 620; Wharton v. Wright, 30 Ill. App. 343; Coombs v. Rose, 8 Blackf. 155; Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Lynch v. Febiger, 39 La. Ann. 336; Remington v. Congdon, 2 Pick. 310; Bradley v. Heath, 12 Pick. 163; Farnsworth v. Storrs, 5 Cush. 412; York v. Pease, 2 Gray, 282; Gassett v. Gilbert, 6 Gray, 94; Shurtleff v. Parker, 130 Mass. 293 (semble); Howland v. Flood, 160 Mass. 509; Landis v. Campbell, 79 Mo. 433; Rothholz v. Dunkle, 53 N. J. Law, 438; Jarvis v. Hatheway, 3 Johns, 180; O’Donaghue v. McGovern, 23 Wend. 26; Streety v. Wood, 15 Barb. 105; Fowles v. Bowen, 30 N. Y. 20; Kilinck v. Colby, 46 N. Y. 427; McKnight v. Hasbrouck, 17 R. I. 70; Tillinghast v. McLeod, 17 R. I. 208; Holt v. Parsons, 23 Tex. 9; Shurtleff v. Stevens, 51 Vt. 501 (semble) Accord.

See also Dickeson v. Hilliard, L. R. 9 Ex. 79; Lyman v. Gowing, L. R. 6 Ir. 259 (where the communication was made to unsuitable persons); Phillips v. Bradshaw, 181 Ala. 541; Bohlinger v. Germania Ins. Co., 100 Ark. 477.

Communication by promoter of an enterprise to one whose assistance is sought. Cook v. Gust, 155 Wis. 594.

Communication from superintendent of railroad to express company as to employee who serves both. International R. Co. v. Edmundson, (Tex. Civ. App.) 185 S. W. 402.

Communication by insurance adjuster to insurers. Richardson v. Cooke, 129 La. 365.

Indorsement of officer on recommendation for promotion. Gray v. Mossman, 88 Conn. 247.

Communication between stockholders as to manager of a corporation. Ashcroft v. Hammond, 197 N. Y. 488.

Communication by person immediately interested made honestly to protect his own interest. Delany v. Jones, 4 Esp. 190 (but see Lay v. Lawson, 4 A. & E. 798); Fairman v. Ives, 5 B. & A. 642; Coward v. Wellington, 7 Car. & P. 531; Tuson v. Evans, 12 A. & E. 733 (semble); Blackham v. Pugh, 2 C. B. 611; Wenman v. Ash, 13 C. B. 836 (semble, communication to unsuitable person); Manby v. Witt, 18 C. B. 544; Taylor v. Hawkins, 16 Q. B. 308; Amann v. Damm, 8 C. B. N. S. 597; Force v. Warren, 15 C. B. N. S. 806; Oddy v. Paulet, 4 F. & F. 1009 (semble); Cooke v. Wildes, 5 E. & B. 328; Regina v. Perry, 15 Cox C. C. 169; Bank v. Strong, 1 App. Cas. 307; Hunt v. Great Northern Co., [1891] 2 Q. B. 189; Baker v. Carrick, [1894] 1 Q. B. 838; Hobbs v. Bryers, L. R. 2 Ir. 496; Lang v. Gilbert, 4 All. (N. B.) 445; Gasley v. Moss, 9 Ala. 266; Butterworth v. Conrow, 1 Marv. 361; Henry v. Moberly, 23 Ind. App. 305; Nichols v. Eaton, 110 Ia. 509; Caldwell v. Story, 107 Ky. 10; Baysett v. Hire, 49 La. Ann. 904; Dickinson v. Hathaway, 122 La. Ann. 644; Beeler v. Jackson, 64 Md. 589; Brow v. Hathaway, 13 All. 239; Bacon v. Mich. Co., 66 Mich. 166; Howard v. Dickie, 120 Mich. 238; Alabama Co. v. Brooks, 69 Miss. 168; Lovell Co. v. Houghton, 116 N. Y. 520; Lent v. Underhill, 54 App. Div. 609; Reynolds v. Plumbers’ Ass’n, 30 Misc. 709; Behee v. Missouri R. Co., 71 Tex. 424; Missouri R. Co. v. Richmond, 73 Tex. 568; Missouri Co. v. Behee, 2 Tex. Civ. App. 107; Miller v. Armstrong, 24 N. Zeal. 968.

482. The arguments of counsel are omitted.

483. Johnson v. Evans, 3 Esp. 32; Fowler v. Homer, 3 Camp. 294; Jones v. Thomas, 34 W. R. 104; Lightbody v. Gordon, 9 Scotch Sess. Cas. (4th series) 934; Dale v. Harris, 109 Mass. 193 Accord.

See to the same effect Flanagan v. McLane, 87 Conn. 220; Wall v. Seaboard Ry., 18 Ga. App. 457; Cristman v. Cristman, 36 Ill. App. 567; Harper v. Harper, 10 Bush, 447; Hyatt v. Lindner, 133 La. 614; Bavington v. Robinson, 127 Md. 46, 124 Md. 85; Eames v. Whittaker, 123 Mass. 342; Wells v. Toogood, 165 Mich. 677; Lally v. Emery, 59 Hun, 237; Hayden v. Hasbrouck, 34 R. I. 556; Viss v. Calligan, 91 Wash. 673. Compare Hansen v. Hansen, 126 Minn. 426; Hooper v. Truscott, 2 B. N. C. 457; Harrison v. Fraser, 29 W. R. 652.

But see Peak v. Taubman, 251 Mo. 390; Vanloon v. Vanloon, 159 Mo. App. 255; Hagener v. Pulitzer Pub. Co., 172 Mo. App. 436.

Relevant statement in course of dispute as to property. Alderson v. Kahle, 73 W. Va. 690.

484. The argument for the plaintiff and the opinions of Lord Tenterden, C. J., Bayley, and Littledale, JJ., are omitted.

485. Servant cases. Edmondson v. Stevenson, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110; Rogers v. Clifton, 3 B. & P. 587; Pattison v. Jones, 8 B. & C. 578; Gardner v. Slade, 13 Q. B. 796; Murdoch v. Funduklian, 2 T. L. R. 614 (reversing S. C. 2 T. L. R. 215); Doane v. Grew, 220 Mass. 171; Carroll v. Owen, 178 Mich. 551 Accord.

Commercial agency cases. Lemay v. Chamberlain, 10 Ont. 638; Todd v. Dun, 12 Ont. 791; Erber v. Dun, 12 Fed. 526; Johnson v. Bradstreet Co., 77 Ga. 172; Pollasky v. Minchener, 81 Mich. 280; Mitchell v. Bradstreet Co., 116 Mo. 226; King v. Patterson, 49 N. J. Law, 417; Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188; Bradstreet Co. v. Gill, 72 Texas, 115 Accord.

Macintosh v. Dun, [1908] A. C. 390 Contra. Aliter in case of credit association not for profit. London Ass’n for Protection of Trade v. Greenlands, [1916] 2 A. C. 15.

But information given to persons having no interest in the mercantile standing of the plaintiff—for example, reports sent by a commercial agency to its subscribers generally—is not privileged. Erber v. Dun, 12 Fed. 526; Trussell v. Scarlett, 18 Fed. 214 (criticising Beardsley v. Tappan, 5 Blatchford, 497); Locke v. Bradstreet Co., 22 Fed. 771; Pacific Packing Co. v. Bradstreet, 25 Idaho, 696; Pollasky v. Minchener, 81 Mich. 280; Ormsby v. Douglass, 37 N. Y. 477; State v. Lonsdale, 48 Wis. 348.

For other cases of communications privileged because made in answer to proper inquiries, see Cockayne v. Hodgkisson, 5 Car. & P. 543; Storey v. Challands, 8 Car. & P. 234; Kline v. Sewell, 3 M. & W. 297; Hopwood v. Thorn, 8 C. B. 293; Robshaw v. Smith, 38 L. T. Rep. 423; Weldon v. Winslow, Odgers, Lib. & Sl. (5th ed.) 255; Melcher v. Beeler, 48 Col. 233; Zuckerman v. Sonnenschein, 62 Ill. 115; Richardson v. Gunby, 88 Kan. 47; Atwill v. Mackintosh, 120 Mass. 177; Howland v. Blake Co., 156 Mass. 543; Froslee v. Lund’s State Bank, 131 Minn. 435; Fahr v. Hayes, 50 N. J. Law, 275; Posnett v. Marble, 62 Vt. 481; Rude v. Nass, 79 Wis. 321.

Advice by attorney to client as to person with whom client has business. Kruse v. Rabe, 80 N. J. Law, 378.

Fiduciary relations. Communications made in the line of a business duty, for example, by an agent or employee to his principal or employer are privileged. Wright v. Woodgate, 2 C. M. & R. 573; Scarll v. Dixon, 4 F. & F. 250; Stace v. Griffith, L. R. 2 P. C. 420; Hume v. Marshall, 42 J. P. 136; Washburn v. Cooke, 3 Den. 110; Lewis v. Chapman, 16 N. Y. 369.

Family relations. A bona fide communication by a brother to his sister reflecting on the character of her suitor is privileged. Anon., 2 Smith, 4, cited; Adams v. Coleridge, 1 T. L. R. 4. So is a similar communication by a son-in-law to his mother-in-law. Todd v. Hawkins, 2 M. & Rob. 20, 8 C. & P. 88.

Inquiry as to character of candidate for admission to a society. Cadle v. McIntosh, 51 Ind. App. 365.

486. Only this opinion and the dissenting opinion of Creswell, J., are given. Erle, J., concurred with the Lord Chief Justice; Coltman, J., agreed with Cresswell, J.

487. “If it had been necessary, I should have been fully prepared to go the whole length of the doctrine laid down by Tindal, C. J., in the case of Coxhead v. Richards,” per Willes, J., in Amann v. Damm, 8 C. B. N. S. 592, 602. Blackburn, J., in Davies v. Snead, L. R. 5 Q. B. 605, 611, and Lindley, J., in Stuart v. Bell, [1891] 2 Q. B. 341, 347, expressed similar approval of the opinion of Tindal, C. J.

Vanspike v. Cleyson, Cro. El. 541; Peacock v. Reynal, 2 Br. & Gold. 151, 15 C. B. N. S. 418, cited; Herver v. Dowson, Bull. N. P. 8; Cleaver v. Sarraude, 1 Camp. 268, cited; Picton v. Jackman, 4 Car. & P. 257; Dixon v. Smith, 29 L. J. Ex. 125, 126; Masters v. Burgess, 3 T. L. R. 96; Stuart v. Bell, [1891] 2 Q. B. 341; Hart v. Reed, 1 B. Mon. 166; Fresh v. Cutter, 73 Md. 87; Noonan v. Orton, 32 Wis. 106 Accord.

Cockayne v. Hodgkisson, 5 Car. & P. 543 (semble); King v. Watts, 8 Car. & P. 614; Brown v. Vannaman, 85 Wis. 451 Contra. But see Hocks v. Sprangers, 113 Wis. 123.

In Bennett v. Deacon, 2 C. B. 628, a creditor of a buyer volunteered a warning to the seller as to the buyer’s credit. The court was evenly divided as to whether the communication was privileged.

Compare Irion v. Knapp, 132 La. 60 (letter to a public board as to a candidate for an appointment).

Indian Penal Code, § 499, exception 9. It is not defamation to make an imputation on the character of another, provided that the imputation be made in good faith for the protection of the interests of the person making it, or of any other person, or for the public good.

488. As to this remarkable litigant, see the article by Irving Browne, “Count Joannes,” 8 Green Bag. 435.

489. Only what relates to this count is given.

490. Krebs v. Oliver, 12 Gray, 239; Byam v. Collins, 111 N. Y. 143 Accord.

Anon., 15 C. B. N. S. 410 (cited); Adcock v. Marsh, 8 Ired. 360 Contra. See Dobbin v. Chicago R. Co., 157 Mo. App. 689.

491. The statement of the case has been condensed.

492. In Simmonds v. Dunne, Ir. R. 5 C. L. 358; Over v. Schiffling, 102 Ind. 191; York v. Johnson, 116 Mass. 482, the communications were not privileged for want of a legitimate interest or duty on the part of the defendant.

See Whiteley v. Newman, 9 Ga. App. 89.

493. Only the opinion of the court is given.

494. Jones v. Thomas, 34 W. R. 104; Pittard v. Oliver, [1891] 1 Q. B. 474; Broughton v. McGrew, 39 Fed. 672; Brow v. Hathaway, 13 All. 239; Billings v. Fairbanks, 136 Mass. 177, 139 Mass. 66; Keane v. Sprague (N. Y. City Court), 30 Alb. L. J. 283 Accord.

Webber v. Vincent, 9 N. Y. Supp. 101 Contra.

Defamatory letter after termination of employment. National Cash Register Co. v. Salling, 173 Fed. 22.

495. In Christopher v. Akin, 214 Mass. 332, the plaintiff was a journeyman painter in the employ of the defendant, and was at work on the house of one Tillinghast. Tillinghast complained to the defendant that some of his men had stolen a putty knife and other property belonging to him. The defendant recompensed Tillinghast for the property and testified that he was told by one of his men that the plaintiff had admitted to him that he took the putty knife. The men were paid off by the defendant at his shop on Saturday night,—their time being made up to Wednesday. Their pay was handed to them in envelopes. When a man was discharged his envelope contained his pay up to Saturday night. The plaintiff’s envelope contained his pay in full, less what the defendant had paid Tillinghast for the property, with a bill for it. There were four or five men in the shop waiting to be paid off when it came the plaintiff’s turn to be paid. The plaintiff opened his envelope and counted the money and found the bill. The plaintiff asked the defendant what that meant, and the defendant said in response, “Do you want to know in front of all these men?” and he said “Yes,” whereupon the defendant said, “That is the stuff you stole from the Tillinghast job.” Morton, J., said: “Whether a communication is or is not privileged does not depend so much on the manner or form in which crime is imputed, where the alleged slander consists as here of a charge of crime, as on the occasion and circumstances under which the charge is made. If made in good faith in reference to a matter in which the person making it is immediately interested, and for the purpose of protecting his interest and in the belief that it is true and without any malicious motive, the communication is what is termed privileged; that is, the occasion and the circumstances under which it is made are held to be such as, if nothing more appears, to excuse or justify the statements that are made.”

See Madill v. Currie, 168 Mich. 546.

Compare Adam v. Ward, [1917] A. C. 309 (statement given to the press by the army board in reply to a speech in Parliament regarding an army officer).

496. The statement of the case is abridged; the arguments of counsel and the concurring opinions of Lord Coleridge, C. J., and Denman, J., are omitted.

497. Robinson v. Jones, L. R. 4 Ir. 391 Accord.

498. Robinson v. Jones, L. R. 4 Ir. 391 Accord. See also Smith v. Crocker, 5 T. L. R. 441; Muetze v. Tuteur, 77 Wis. 236.

Statement in presence of third persons not interested. Fowlie v. Cruse, 52 Mont. 222; Fields v. Bynum, 156 N. C. 413.

Notice of discharge of employee posted on the premises. Ramsdell v. Pennsylvania Co., 79 N. J. Law, 379.

Notice to customers in a local newspaper. Hatch v. Lane, 105 Mass. 394. See Delany v. Jones, 4 Esp. 190 (but see Ley v. Lawson, 4 A. & E. 798); Commonwealth v. Featherston, 9 Phila. 594; Holliday v. Ontario Co., 33 Up. Can. Q. B. 558.

General publicity with respect to candidate for local office. Duncombe v. Daniel, 1 Willmore, W. & H. 101, 8 Car. & P. 222; Jones v. Varnum, 21 Fla. 431; State v. Haskins, 109 Ia. 656; Coleman v. MacLennan, 78 Kan. 711; Bronson v. Bruce, 59 Mich. 467; Wheaton v. Beecher, 66 Mich. 307; Belknap v. Ball, 83 Mich. 583; Aldrich v. Press Co., 9 Minn. 133 (but see, contra, Marks v. Baker, 28 Minn. 162); Bigner v. Hodges, 82 Miss. 215; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; Hunt v. Bennett, 19 N. Y. 173; Seely v. Blair, Wright, (Ohio) 358, 683; Knapp v. Campbell, 14 Tex. Civ. App. 199; Sweeney v. Baker, 13 W. Va. 158. Compare Flynn v. Boglarsky, 164 Mich. 513.

But a communication to the electors alone is privileged, if made in good faith. Wisdom v. Brown, 1 T. L. R. 412; Pankhurst v. Hamilton, 3 T. L. R. 500; Burke v. Mascarich, 81 Cal. 302 (semble); Mott v. Dawson, 46 Ia. 533; Bays v. Hunt, 60 Ia. 251; State v. Balch, 31 Kan. 465; Commonwealth v. Wardwell, 136 Mass. 164; Briggs v. Garrett, 111 Pa. St. 404.

But see, contra, Smith v. Burrus, 106 Mo. 94, where the distinction between fair comment and qualified privilege was overlooked. See also Estelle v. Daily News Pub. Co., 99 Neb. 397; Arnold v. Ingram, 151 Wis. 438; Putnam v. Browne, 162 Wis. 524.

499. The court found that the defendant acted in good faith.

500. Ashford v. Evening Star Co., 41 App. D. C. 395; Addington v. Times Pub. Co., 138 La. 731; Briggs v. Garrett, 111 Pa. St. 404 (semble); Express Co. v. Copeland, 64 Tex. 354 Accord. Compare Bingham v. Gaynor, 141 App. Div. 301; Ivie v. Minton, 75 Or. 483.

Statement at a meeting to oppose a candidate for public office. Baker v. Warner, 231 U. S. 588.

Criticism of minister in a church convention. Dickson v. Lights, (Tex. Civ. App.) 17 S. W. 834.

Criticism of member of association at a meeting to discuss the affairs of the association. Caldwell v. Hayden, 42 App. D. C. 166.

Reply to defamatory statements. Adam v. Ward [1917] A. C. 309; Preston v. Hobbs, 161 App. Div. 363; Smith v. Kemp, 132 La. 943.

501. Only part of the opinion is given.

502. Criticism of member of congregation in a sermon. Hassett v. Carroll, 85 Conn. 23.

Statement by clergyman to congregation as to conduct of a trustee. Everett v. DeLong, 144 Ill. App. 496.

503. The arguments of counsel and the concurring opinions of Lopes and Kay, L.JJ., are omitted.

504. Bohlinger v. Germania Ins. Co., 100 Ark. 477; Gambrill v. Schooley, 93 Md. 48 Accord. See Central R. Co. v. Jones, 18 Ga. App. 414. But the dictation of a defamatory letter by a lawyer to his clerk and the copying of it by another clerk in the regular course of serving his clients, although a publication, is, nevertheless, privileged. Boxsius v. Goblet, [1894] 1 Q. B. 842. And the authority of Pullman v. Hill is greatly weakened by Edmonson v. Birch, [1907] 1 K. B. 371, which treats as privileged the dictation of a defamatory letter by a company through one of its officers to a stenographer, and Roff v. British Chemical Co., [1918] 2 K. B. 277 (letter passed through the hands of two clerks of addressee). See to the same effect Owen v. Ogilvie Co., 32 App. Div. 465.

Exchange of letters by mistake whereby privileged letter goes to wrong person. See Tompson v. Dashwood, 11 Q. B. D. 43; Hebditch v. McIlwaine, [1894] 2 Q. B. 54, 61.

A defamatory statement true of A. but published concerning B., by mistake, will support an action by B. Shepheard v. Whitaker, L. R. 10 C. P. 502; Taylor v. Hearst, 107 Cal. 262; Griebel v. Rochester Co., 60 Hun, 319. But see, contra, Hanson v. Globe Co., supra, 665 (Holmes, Morton, and Barker, JJ., dissenting).

Compare Brett v. Watson, 20 W. R. 723; Fox v. Broderick, 14 Ir. C. L. R. 453, 459; Loibl v. Breidenbach, 78 Wis. 49.

505. The concurring opinions of Bramwell and Brett, L.JJ., and the argument for defendant are omitted.

506. Salmon v. Isaac, 20 L. T. Rep. 885; Lawyers Pub. Co. v. West Pub. Co., 32 App. Div. 585; Saunders v. Baxter, 6 Heisk. 369 Accord.

507. 3 Q. B. Div. 237, S. C.

508. The charge of the learned baron is abridged; the arguments of counsel and the concurring opinions of Bramwell and Cotton, L.JJ., are omitted.

509. Barry v. McCollom, 81 Conn. 293; Bays v. Hunt, 60 Ia. 251, 255–6; Hemmens v. Nelson, 138 N. Y. 517; Haft v. First Bank, 19 App. Div. 423 Accord.

510. The case is materially abridged.

511. Ranson v. West, 125 Ky. 457 (semble); Toothaker v. Conant, 91 Me. 438; Briggs v. Garrett, 111 Pa. St. 404; Conroy v. Pittsburgh Times, 139 Pa. St. 334; Mulderig v. Wilkes Barre Times, 215 Pa. St. 470; Egan v. Dotson, 36 S. D. 459 Accord.

See also, Douglass v. Daisley, 114 Fed. 628.

Compare Glisson v. Biggio, 139 La. 23; Estelle v. Daily News Pub. Co., 99 Neb. 397; Wiese v. Riley, 146 Wis. 640.

Petition or memorial for removal of public officer privileged. Blake v. Pilfold, 1 M. & Rob. 198; Woodward v. Lander, 6 Car. & P. 548; James v. Boston, 2 Car. & K. 4; Spackman v. Gibney, Odgers, Lib. & Sl. (5th ed.) 278; Beatson v. Skene, 5 H. & N. 838; Harrison v. Bush, 5 E. & B. 344; Hart v. Von Gumpach, L. R. 4 P. C. 439; Stanton v. Andrews, 5 Up. Can. Q. B. O. S. 211; Corbett v. Jackson, 1 Up. Can. Q. B. 128; Rogers v. Spalding, 1 Up. Can. Q. B. 258; McIntire v. McBean, 13 Up. Can. Q. B. 534; Bell v. Parke, 10 Ir. C. L. R. 279 (semble); White v. Nichols, 3 How. 266; Vogel v. Gruaz, 110 U. S. 311; Pearce v. Brower, 72 Ga. 243; Young v. Richardson, 4 Ill. App. 364; Rainbow v. Benson, 71 Ia. 301; Rabb v. Trevelyan, 122 La. 174; Bodwell v. Osgood, 3 Pick. 379; Wieman v. Mabee, 45 Mich. 484; Greenwood v. Cobbey, 26 Neb. 449; State v. Burnham, 9 N. H. 34; Thorn v. Blanchard, 5 Johns. 508; Vanderzee v. McGregor, 12 Wend. 545; Howard v. Thompson, 21 Wend. 319; Halstead v. Nelson, 24 Hun, 395; Decker v. Gaylord, 35 Hun, 584; Woods v. Wiman, 122 N. Y. 445, 47 Hun, 362; Cook v. Hill, 3 Sandf. 341; Van Wyck v. Aspinwall, 17 N. Y. 190; Harwood v. Keech, 6 Th. & C. 665; Logan v. Hodges, 146 N. C. 38; Gray v. Pentland, 2 S. & R. 23; Kent v. Bongartz, 15 R. I. 72; Reid v. Delorme, 2 Brev. 76; Harris v. Huntington, 2 Tyler, 129 Accord.

But not absolutely privileged, where the proceeding is not judicial. Dickson v. Wilton, 1 F. & F. 419; Proctor v. Webster, 16 Q. B. D. 112; Woods v. Wiman, 122 N. Y. 445; Morah v. Steele, 157 App. Div. 109; Fulton v. Ingalls, 165 App. Div. 323.

Compare McKee v. Hughes, 133 Tenn. 455 (petition to revoke merchant’s license).

512. The statement of the case, the arguments of counsel, the judgment of Mellor, J., and portions of the judgments of Crompton and Blackburn, JJ., are omitted.

513. Hibbs v. Wilkinson, 1 F. & F. 608; Turnbull v. Bird, 2 F. & F. 508; Hunter v. Sharpe, 4 F. & F. 983; Hunt v. Star Co., [1908] 2 K. B. 309; Walker v. Hodgson, [1909] 1 K. B. 239, 253; De Mestre v. Syme, 9 Vict. L. R. (L) 10; Davis v. Duncan, L. R. 9 C. P. 396; Queen v. Carden, 5 Q. B. D. 1, 8; Crane v. Waters, 10 Fed. 619; Kinyon v. Palmer, 18 Ia. 377; Bradford v. Clark, 90 Me. 298; People v. Glassman, 12 Utah, 238 Accord.

514. Stuart v. Lovell, 2 Stark. 93; Macleod v. Wakley, 3 Car. & P. 311; Green v. Chapman, 4 Bing. N. C. 92; Parmiter v. Coupland, 6 M. & W. 105; Whistler v. Ruskin, Odgers, Lib. & Sl., (5th ed.) 196; Wilson v. Reed, 2 F. & F. 149; Morrison v. Belcher, 3 F. & F. 614; Hedley v. Barlow, 4 F. & F. 224; Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Joynt v. Cycle Co., [1904] 2 K. B. 292; Massie v. Toronto Co., 11 Ont. 362; Burt v. Advertiser Co., 154 Mass. 238; Cooper v. Stone, 24 Wend. 434; Reade v. Sweetzer, 6 Abb. Pr. N. S. 9, n.; Ullrich v. N. Y. Co., 23 Misc. 168 Accord.

515. See contra, Williams v. Spowers, 8 Vict. L. R. (Law) 82.

516. Honest belief is no defense apart from privilege. Van Wiginton v. Pulitzer Pub. Co., (C. C. A.) 218 Fed. 483; Brandt v. Story, 161 Ia. 451; Tanner v. Stevenson, 138 Ky. 578; Reid v. Nichols, 166 Ky. 423; Sweet v. Post Pub. Co., 215 Mass. 450; Clair v. Battle Creek Journal Co., 168 Mich. 467; Ivie v. King, 167 N. C. 174; Spencer v. Minnick, 41 Okl. 613; Williams v. Hicks Printing Co., 159 Wis. 90.

Fair comment on public affairs and public officers. See Gandia v. Pettingill, 222 U. S. 452; Lowe v. News Pub. Co., 9 Ga. App. 103; Diener v. Star Chronicle Pub. Co., 230 Mo. 613; Cook v. Globe Printing Co., 227 Mo. 471; Merrey v. Guardian Pub. Co., 79 N. J. Law, 177; Bingham v. Gaynor, 203 N. Y. 27.

Fair comment on candidates. Walsh v. Pulitzer Pub. Co., 250 Mo. 142; Schull v. Hopkins, 26 S. D. 21; Ingalls v. Morrissey, 154 Wis. 632.

Fair comment on persons seeking public patronage. Ott v. Murphy, 160 Ia. 730.

517. Dibdin v. Swan, 1 Esp. 28; Heriot v. Stuart, 1 Esp. 437; Stuart v. Lovell, 2 Stark. 93 (semble); Tabart v. Tipper, 1 Camp. 350 (semble); Dunne v. Anderson, Ry. & M. 287, 3 Bing. 88; Soane v. Knight, M. & M. 74; Thompson v. Shackell, M. & M. 187; Macleod v. Wakley, 3 Car. & P. 311; Fraser v. Berkeley, 7 Car. & P. 621; Evans v. Harlow, Dav. & M. 507; Paris v. Levy, 9 C. B. N. S. 342; Eastwood v. Holmes, 1 F. & F. 347; Hibbs v. Wilkinson, 1 F. & F. 608; Turnbull v. Bird, 2 F. & F. 508; Strauss v. Francis, 4 F. & F. 939, 1107, 15 L. T. Rep. 674; Henwood v. Harrison, L. R. 7 C. P. 606; Jenner v. A’Beckett, L. R. 7 Q. B. 11; Mulkern v. Ward, 13 Eq. 619, 622; Whistler v. Ruskin, Odgers, Lib. & Sl., (5 ed.) 196; Duplany v. Davis, 3 T. L. R. 184; McQuire v. Western Co., [1903] 2 K. B. 100; Crane v. Waters, 10 Fed. 619; Snyder v. Fulton, 34 Md. 128, 137; Gott v. Pulsifer, 122 Mass. 235; O’Connor v. Sill, 60 Mich. 175; Dowling v. Livingstone, 108 Mich. 321; Cooper v. Stone, 24 Wend. 434 (semble); Reade v. Sweetzer, 6 Abb. Pr. N. S. 9, n. (semble); Adolf Philipp Co. v. New Yorker Staatszeitung, 165 App. Div. 377; Press Co. v. Stewart, 119 Pa. St. 584 Accord.

“The defendant was, in my opinion, entitled to have the jury’s decision, as to the plea of fair comment, whether or not, in all the circumstances proved, the libel went beyond a fair comment on the plaintiff and on the system of medical enterprise with which he associated himself, as a matter of public interest treated by the defendant honestly and without malice. The plea of fair comment does not arise if the plea of justification is made good, nor can it arise unless there is an imputation on a plaintiff. It is precisely where the criticism would otherwise be actionable as a libel that the defence of fair comment comes in. But the learned judge put aside that defence, and told the jury that unless a justification was proved they were bound to find a verdict for the plaintiff, and that, unless justified, the libel is not fair comment and cannot come within the region of fair comment.” Lord Loreburn, L. C., in Dakhyl v. Labouchere, [1908] 2 K. B. 325, 326–27.

518. The arguments are omitted.

519. The statement has been abridged, and the arguments of counsel together with a small portion of the judgment are omitted.

520. Merivale v. Carson, supra, 775; McQuire v. Western Co., [1903] 2 K. B. 100, 110; Joynt v. Cycle Co., [1904] 2 K. B. 292; Digby v. Financial News, [1907] 1 K. B. 502; Hunt v. Star Co., [1908] 2 K. B. 309, 317; Walker v. Hodgson, [1909] 1 K. B. 239; Starks v. Comer, 190 Ala. 245; Com. v. Pratt, 208 Mass. 553; Williams v. Hicks Printing Co., 159 Wis. 90; Putnam v. Browne, 162 Wis. 524 Accord.

In Walker v. Hodgson, Kennedy, L. J., said, p. 256: “Now it is true that there may be comment of an injurious nature in which there is no statement of facts, or which refers to facts which are admitted or are indisputable. In such a case the fairness of the comment depends upon the character of the criticisms, or the inferences of which it is composed, that is, whether it is a comment made honestly and bona fide, or a comment made mala fide and maliciously.... But where the words which are alleged to be defamatory allege, or assume as true, facts concerning the plaintiff which the plaintiff denies, and which either involve a slanderous imputation in themselves, or upon which the comment bases imputations or inferences injurious to the plaintiff, it is, I think, settled law that the defence of fair comment fails, unless the comment is truthful in regard to its allegation or assumption of such facts.” See also the remarks of Buckley, L. J., in the same case, p. 253.

In Hubbard v. Allyn, 200 Mass. 167, Rugg, J., said (p. 170): “The right of the defendant was not to make false statements of fact because the subject matter was of public interest, but only to criticise, discuss and comment upon the real acts of the plaintiff and the consequences likely to follow from them, or upon any other aspect of the case in a reasonable way. This may be done with severity. Ridicule, sarcasm and invective may be employed. But the basis must be a fact, and not a falsehood.”

Nor does it cover violent attacks and insulting statements. Press Pub. Co. v. Gillette, (C. C. A.) 229 Fed. 108; Jozsa v. Moroney, 125 La. 813; Hines v. Shumaker, 97 Miss. 669; Patten v. Harpers Weekly Corp., 158 N. Y. Supp. 70; Hayden v. Hasbrouck, 34 R. I. 556; Spencer v. Looney, 116 Va. 767; Williams v. Hicks Printing Co., 159 Wis. 90; Putnam v. Browne, 162 Wis. 524; Compare Dickson v. Lights, (Tex. Civ. App.) 170 S. W. 834. And see Phillips v. Bradshaw, 167 Ala. 199.

521. Robinson v. Coulter, 215 Mass. 566; Tawney v. Simonson, 109 Minn. 341 Accord.

The burden is on the plaintiff to show malice, not on the defendant to show good faith. Jenoure v. Delmege, [1891] A. C. 73; Davis v. Hearst, 160 Cal. 143; Locke v. Bradstreet Co., 22 Fed. 771; Hemmens v. Nelson, 138 N. Y. 517; Haft v. Newcastle Bank, 19 App. Div. 423; Strode v. Clement, 90 Va. 553.

Definitions of “malice.” Doane v. Grew, 220 Mass. 171; Peake v. Taubman, 251 Mo. 390. See Marney v. Joseph, 94 Kan. 18.

“If proof of a malevolent motive would rebut the privilege, which we do not decide, nothing less than that would do, so far as malice is concerned. It is true, as is said in the very careful brief for the plaintiff, that in most connections malice means only knowledge of facts sufficient to show that the contemplated act is very likely to have injurious consequences. Apart from statute it generally means no more when the question is what is sufficient prima facie to charge a defendant. Burt v. Advertiser Newspaper Co., 154 Mass. 238, 245. But sometimes the defence is not that the damage was not to be foreseen, but rests on what in substance is a privilege, whether of a kind usually pleaded as such or not, that is to say, on a right to inflict the damage even knowingly. In such cases, if malice in any sense makes a difference, as distinguished from excess over what was reasonable or needful to do or say under the circumstances, which often is included under the same word, Gott v. Pulsifer, 122 Mass. 235, 239, it means that the defendant is not within the privilege because he was not acting in bona fide answer to the needs of the occasion, but outside of it from a wish to do harm. See Wren v. Weild, L. R. 4 Q. B. 730, 735, 736; Clark v. Molyneux, 3 Q. B. D. 237, 246, 247.” Holmes, C. J., in Squires v. Wason Mfg. Co., 182 Mass. 137, 141.

See Advertiser Co. v. Jones, 169 Ala. 196, 670; Davis v. Hearst, 160 Cal. 143.

Reckless republication without inquiry. Houston Chronicle Pub. Co. v. Wegner, (Tex. Civ. App.) 182 S. W. 45.

“Malice” on the face of publication. Ashford v. Evening Star Co., 41 App. D. C. 395; Dickson v. Lights, (Tex. Civ. App.) 170 S. W. 834.

522. 16 C. B. N. S. 829, S. C.

523. Nevill v. Fine Arts Co., [1895] 2 Q. B. 156; Hollenbeck v. Ristine, 105 Ia. 488; Children v. Shinn, 168 Ia. 531; Atwill v. Mackintosh, 120 Mass. 177; Wagner v. Scott, 164 Mo. 289; McGaw v. Hamilton, 184 Pa. St. 108; Hellstern v. Katzer, 103 Wis. 391 Accord. Compare Davis v. New England Pub. Co., 203 Mass. 470; Doane v. Grew, 220 Mass. 171.

524. Only the opinion of the court is given.

525. Parmiter v. Coupland, 6 M. & W. 105; Odger v. Mortimer, 28 L. T. Rep. 472; Queen v. Carden, 5 Q. B. Div. 1, 8; Bryce v. Rusden, 2 T. L. R. 435; Duplany v. Davis, 3 T. L. R. 184; R. v. Flowers, 44 J. P. 377, per Field, J.; LeFroy v. Burnside, L. R. 4 Ir. 556, 565, 566; Stewart v. McKinley, 11 Vict. L. R. 802; Browne v. McKinley, 12 Vict. L. R. 240; Smith v. Tribune Co., 4 Biss. 477; McDonald v. Woodruff, 2 Dill. 244; Hallam v. Post Co., 55 Fed. 456, 59 Fed. 530; Parsons v. Age Herald Pub. Co., 181 Ala. 439; Jarman v. Rea, 137 Cal. 339; Dauphiny v. Buhne, 153 Cal. 757; Star Co. v. Donahoe, (Del.) 58 Atl. 513; Jones v. Townsend, 21 Fla. 431; Rearick v. Wilcox, 81 Ill. 77; Klos v. Zahorik, 113 Ia. 161; Ott v. Murphy, 160 Ia. 730; Bearce v. Bass, 88 Me. 521; Negley v. Farrow, 60 Md. 158; Commonwealth v. Clap, 4 Mass. 163, 169 (semble); Curtis v. Mussey, 6 Gray, 261; Burt v. Advertiser Co., 154 Mass. 238 (compare Sillars v. Collier, 151 Mass. 50); Hubbard v. Allyn, 200 Mass. 166; Foster v. Scripps, 39 Mich. 376; Bronson v. Bruce, 59 Mich. 467; Bourreseau v. Detroit Co., 63 Mich. 425; Wheaton v. Beecher, 66 Mich. 307; Belknap v. Ball, 83 Mich. 583; Hay v. Reid, 85 Mich. 296; Smurthwaite v. News Co., 124 Mich. 377; Aldrich v. Press Co., 9 Minn. 133 (but see, contra, Marks v. Baker, 28 Minn. 162); Smith v. Burrus, 106 Mo. 94; State v. Schmitt, 49 N. J. Law, 579; Lewis v. Few, 5 Johns. 1; Root v. King, 7 Cow. 613; Littlejohn v. Greeley, 13 Abb. Pr. 41; Hamilton v. Eno, 81 N. Y. 116; Mattice v. Wilcox, 147 N. Y. 624; Hoey v. New York Times Co., 138 App. Div. 149; Ullrich v. N. Y. Co., 23 Misc. 168; Seely v. Blair, Wright, (Ohio) 358, 683; Post Co. v. Moloney, 50 Ohio St. 71; Upton v. Hume, 24 Or. 420; Barr v. Moore, 87 Pa. St. 385; Brewer v. Weakley, 2 Overt. 99; Banner Co. v. State, 16 Lea, 176; Democrat Co. v. Jones, 83 Tex. 302; Sweeney v. Baker, 13 W. Va. 158; Spiering v. Andrae, 45 Wis. 330; Eviston v. Cramer, 57 Wis. 570; Gagen v. Dawley, 162 Wis. 152; D. Ward v. Derrington, 14 S. Aust. L. R. 35; Haselgrove v. King, 14 S. Aust. L. R. 192 Accord.

Mott v. Dawson, 46 Ia. 533; Bays v. Hunt, 60 Ia. 251 (but see State v. Haskins, 109 Ia. 656, 658, and Morse v. Printing Co., 124 Ia. 707, 723); State v. Balch, 31 Kan. 465; Coleman v. McLennan, 78 Kan. 711; Marks v. Baker, 28 Minn. 162; State v. Burnham, 9 N. H. 34; Neeb v. Hope, 111 Pa. St. 145; Briggs v. Garrett, 111 Pa. St. 404; Press Co. v. Stewart, 119 Pa. St. 584; Jackson v. Pittsburgh Times, 152 Pa. St. 406; Ross v. Ward, 14 S. D. 240; Boucher v. Clark Co., 14 S. D. 72 Contra.

See Palmer v. Concord, 48 N. H. 211.

In Burt v. Advertiser Co., 154 Mass. 238, Holmes, J., said: “But there is an important distinction to be noticed between the so-called privilege of fair criticism upon matters of public interest, and the privilege existing in the case, for instance, of answers to inquiries about the character of a servant. In the latter case, a bona fide statement not in excess of the occasion is privileged, although it turns out to be false. In the former, what is privileged, if that is the proper term, is criticism, not statement, and however it might be if a person merely quoted or referred to a statement as made by others, and gave it no new sanction, if he takes upon himself in his own person to allege facts otherwise libellous, he will not be privileged if those facts are not true. The reason for the distinction lies in the different nature and degree of the exigency and of the damage in the two cases. In these, as in many other instances, the law has to draw a line between conflicting interests, both intrinsically meritorious. When private inquiries are made about a private person, a servant, for example, it is often impossible to answer them properly without stating facts, and those who settled the law thought it more important to preserve a reasonable freedom in giving necessary information than to insure people against occasional unintended injustice, confined as it generally is to one or two persons. But what the interest of private citizens in public matters requires is freedom of discussion rather than of statement. Moreover, the statements about such matters which come before the courts are generally public statements, where the harm done by a falsehood is much greater than in the other case. If one private citizen wrote to another that a high official had taken a bribe, no one would think good faith a sufficient answer to an action. He stands no better, certainly, when he publishes his writing to the world through a newspaper, and the newspaper itself stands no better than the writer. Sheckell v. Jackson, 10 Cush. 25, 26.”

Participants in legal proceedings are legitimate subjects for comment if restricted to their conduct therein. Rex v. White, 1 Camp. 359; Seymour v. Butterworth, 3 F. & F. 372; Hedley v. Barlow, 4 F. & F. 224; Woodgate v. Ridout, 4 F. & F. 202; Hibbins v. Lee, 4 F. & F. 243; Risk Allah Bey v. Whitehurst, 18 L. T. Rep. 615; Reg. v. Sullivan, 11 Cox C. C. 44, 57; Kane v. Mulvany, Ir. R. 2 C. L. 402; Miner v. Detroit Co., 49 Mich. 358. See also Kelly v. Tinling, L. R. 1 Q. B. 699 (churchwarden); Harle v. Catherall, 14 L. T. Rep. 801 (waywarden).

Matters not of public interest. The right of comment was denied in Latimer v. Western Co., 25 L. T. Rep. 44; Hogan v. Sutton, 16 W. R. 127; Wilson v. Fitch, 41 Cal. 363.

See also Hearne v. Stowell, 12 A. & E. 719; Gathercole v. Miall, 15 M. & W. 319; Walker v. Brogden, 19 C. B. N. S. 65; Booth v. Briscoe, 2 Q. B. Div. 496.

526. Arguments omitted.

527. The decision of the Appellate Division, overruling demurrer to complaint, is reported in 64 App. Div. 30.

528. Corelli v. Wall, 22 Times L. R. 532 (post cards depicting imaginary incidents of an author’s life); Atkinson v. Doherty, 121 Mich. 372 (picture of plaintiff’s dead husband on cigar label); Henry v. Cherry, 30 R. I. 13 (picture as advertisement); Hillman v. Star Pub. Co., 64 Wash. 691 (picture of plaintiff in connection with report of arrest of her father for crime) Accord. Compare Chappell v. Stewart, 82 Md. 323 (shadowing).

Corliss v. Walker, 57 Fed. 434 (semble); Von Theodorovich v. Josef Beneficiary Ass’n, 154 Fed. 911 (semble); Pavesich v. New England Ins. Co., 122 Ga. 190 (picture as advertisement); Foster-Milburn Co. v. Chinn, 134 Ky. 424 (picture as advertisement); Douglas v. Stokes, 149 Ky. 506 (publishing photograph of deceased deformed child of plaintiff); Itzkovitch v. Whitaker, 115 La. 479, 117 La. 708 (photograph in rogues’ gallery); Schulman v. Whitaker, 117 La. 704; Munden v. Harris, 153 Mo. App. 652 (picture as advertisement); Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136 (picture—but here there was chiefly an interest of substance) Contra.

See also Dill, J. in Vanderbilt v. Mitchell, 72 N. J. Eq. 910, 919.

As to photographing persons arrested on charges of crime, see Hodgman v. Olsen, 86 Wash. 615.

New York, Civil Rights Law, §§ 50, 51 (Laws of 1903, ch. 132, §§ 1, 2).

§ 50. A person, firm, or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

§ 51. Any person whose name, portrait, or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm, or corporation so using his name, portrait, or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries maintained by reason of such use, and if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages.

See Binns v. Vitagraph Co., 210 N. Y. 51.

On the whole subject, see Warren and Brandeis, The Right to Privacy, 4 Harvard Law Rev. 193; Pound, Interests of Personality, 28 Harvard Law Rev. 343, 362–364.

529. 4 Rep. 16 b, S. C.

530. Dame Morrison’s Case, Jenk. 316; Matthew v. Crasse, 2 Bulst. 89; Sell v. Facy, 2 Bulst. 276, 3 Bulst. 48; Nelson v. Staff, Cro. Jac. 422; Thomson’s Case, Bendl. 148; Countess of Salop’s Case, Bendl. 155; Taylor v. Tolwin, Latch, 218; Wicks v. Shepherd, Cro. Car. 155; Southold v. Daunston, Cro. Car. 269 Accord.

See Bridge v. Langton, Litt. 193; Norman v. Simons, 1 Vin. Abr. Act. Words, D, a, 12.

In Felty v. Felty, 164 Ky. 355, plaintiff’s husband left her as a result of the defamatory words.

531. The arguments of counsel are omitted, together with the concurring opinions of Martin, Bramwell, and Wilde, BB.

532. Guy v. Gregory, 9 Car. & P. 584; Adams v. Smith, 58 Ill. 417; Woodbury v. Thompson, 3 N. H. 194; Butler v. Hoboken Co., 73 N. J. Law, 45; Beach v. Ranney, 2 Hill, 309; Terwilliger v. Wands, 17 N. Y. 54 (overruling Bradt v. Towsley, 13 Wend. 253; Olmsted v. Brown, 12 Barb. 657; Fuller v. Fenner, 16 Barb. 333); Wilson v. Goit, 17 N. Y. 442; Bassell v. Elmore, 48 N. Y. 561; Shepherd v. Lamphier, 84 Misc. 498; Clark v. Morrison, 80 Or. 240 Accord. But see Garrison v. Sun Publishing Ass’n, 207 N. Y. 1 (defendant published a libel on plaintiff’s wife resulting in illness and loss of her services).

McQueen v. Fulgham, 27 Tex. 463; Underhill v. Welton, 32 Vt. 40 Contra.

Damage caused by another person’s repetition of the defendant’s words is too remote. Holwood v. Hopkins, Cro. El. 787; Ward v. Weeks, 7 Bing. 211 (but see Riding v. Smith, 1 Ex. D. 91); Rutherford v. Evans, 4 Car. & P. 74; Tunnicliff v. Moss, 3 Car. & K. 83; Kendillon v. Maltby, 1 Car. & M. 402; Parkins v. Scott, 1 H. & C. 153; Dixon v. Smith, 5 H. & N. 450; Clarke v. Morgan, 38 L. T. Rep. 354; Bree v. Marescaux, 7 Q. B. Div. 434; Cates v. Kellogg, 9 Ind. 506; Stevens v. Hartwell, 11 Met. 542; Hastings v. Stetson, 126 Mass. 329; Hastings v. Palmer, 20 Wend. 225; Hallock v. Miller, 2 Barb. 630; Olmsted v. Brown, 12 Barb. 657; Terwilliger v. Wands, 17 N. Y. 54; Fowles v. Bowen, 30 N. Y. 20; Bassell v. Elmore, 48 N. Y. 561 (but see Sewell v. Catlin, 3 Wend. 295; Keenholts v. Becker, 3 Den. 346).

See also Whitney v. Moignard, 24 Q. B. Div. 630; Speight v. Gosnay, 60 L. J. Q. B. 231; Adams v. Cameron, 27 Cal. App. 625; Mills v. Flynn, 157 Ia. 477; Fitzgerald v. Young, 89 Neb. 693.

The rule is otherwise where the repetition is made as a privileged communication. Gillett v. Bullivant, 7 L. T. 490; Derry v. Handley, 16 L. T. Rep. 263; Fowles v. Bowen, 30 N. Y. 20.

533. Only the opinion of the court is given.

534. The case is materially abridged.

535. The statement of the counts is abridged, and the arguments of counsel are omitted.

536. But see now Paterson v. Welch, (Court of Sess. May 31, 1893) 20 R. 744. See also Odgers, Lib. & Sl. (1st ed.) 87, 91; Odgers, Outlines of Law of Libel, 17, 18; Clerk & Lindsell, Torts, (1st ed.) 497–98; Salmond, Torts, 426–27; Bower’s Code of Actionable Defamation, 338–39, 443–45.

537. “It may be reasonable to allow St. Peter a primacy of order, such a one as the ringleader hath in a dance.”—Barrow’s Treatise of the Pope’s Supremacy, Oxford edition of Works, 1830, vol. vii. p. 70. In Fox’s Preface to Tyndall’s Works, “these three learned fathers of blessed memory, William Tyndall, John Frith, and Robert Barons,” are styled “chief ringleaders in these latter tymes of thys Church of England.”—Reporter’s Note.

538. Only the opinion of Day, J., is given. Wills, J., concurred.

539. Slander of title. Mildmay’s Case, 1 Rep. 175; Marvin v. Maynard, Cro. El. 419; Pennyman v. Rabanks, Cro. Eliz. 427; Newman v. Zachary, Al. 3; Rowe v. Roach, 1 M. & S. 304; Bignell v. Buzzard, 3 H. & N. 217; Webb v. Cecil, 9 B. Mon. 198; Ross v. Pynes, Wythe, 71, 3 Call, 490.

In Rowe v. Roach, supra, Lord Ellenborough said, p. 310: “The law makes no allowance for the slander of strangers, whatever it may do in behalf of those who have a real title, or a claim of title. Rei immiscet se alienæ is the good sense which must govern this case. Here the defendant is a stranger himself, and shows no authority from those who are parties in interest.”

Where defendant has some interest, it is enough if he actually believes what he says against plaintiff’s title.

Gerard v. Dickenson, 4 Rep. 18 a, Cro. El. 196; Lovett v. Weller, 1 Rolle R. 409; Anon., Sty. 414; Pitt v. Donovan, 1 M. & S. 639; Smith v. Spooner, 3 Taunt. 246; Green v. Button, 2 C. M. & R. 707; Pater v. Baker, 3 C. B. 831; Watson v. Reynolds, M. & M. 1; Carr v. Duckett, 5 H. & N. 783; Atkins v. Perrin, 3 F. & F. 179; Brook v. Rawl, 4 Ex. 521; Burnett v. Tak, 45 L. T. Rep. 743; Steward v. Young, L. R. 5 C. P. 122; Wren v. Weild, L. R. 4 Q. B. 730; Hart v. Wall, 2 C. P. D. 146 (semble); Baker v. Piper, 2 T. L. R. 733; Dicks v. Brooks, 15 Ch. D. 22; Halsey v. Brotherhood, 19 Ch. D. 386; Royal Co. v. Wright, 18 Pat. Cas. Rep. 95; Dunlop Co. v. Talbot, 20 T. L. R. 579; Boulton v. Shields, 3 Up. Can. Q. B. 21; Hill v. Ward, 13 Ala. 310; McDaniel v. Baca, 2 Cal. 326; Thompson v. White, 70 Cal. 135; Reid v. McLendon, 44 Ga. 156; Van Tuyl v. Riner, 3 Ill. App. 556; Stark v. Chitwood, 5 Kan. 141; Gent v. Lynch, 23 Md. 58; Swan v. Tappan, 5 Cush. 104; Walkley v. Bostwick, 49 Mich. 374; Chesebro v. Powers, 78 Mich. 472; Meyrose v. Adams, 12 Mo. App. 329; Butts v. Long, 106 Mo. App. 313; Andrew v. Deshler, 45 N. J. Law, 167; Kendall v. Stone, 5 N. Y. 14; Like v. McKinstry, 4 Keyes, 397, 3 Abb. App. 62, 41 Barb. 186; Hovey v. Rubber Co., 57 N. Y. 119; Dodge v. Colby, 37 Hun, 515, 108 N. Y. 445; Lovell Co. v. Houghton, 116 N. Y. 520; Hastings v. Giles Co., 51 Hun, 364, 121 N. Y. 674; Cornwell v. Parke, 52 Hun, 596, 123 N. Y. 657; McElwee v. Blackwell, 94 N. C. 261; Harriss v. Sneeden, 101 N. C. 273.

Compare Virtue v. Creamery Mfg. Co., 123 Minn. 17.

As to the requirement of “malice,” see Coffman v. Henderson, 9 Ala. App. 553; Fearon v. Fodera, 169 Cal. 370; Long v. Rucker, 166 Mo. App. 572; Potosi Zinc Co. v. Mahoney, 36 Nev. 390; Fant v. Sullivan, (Tex. Civ. App.) 152 S. W. 515.

See Smith, Disparagement of Property, 13 Columbia Law Rev. 13, 121.

540. Only the opinion of the court is given.

541. Tasburgh v. Day, Cro. Jac. 484; Gresham v. Grinsley, Yelv. 88; Sneade v. Badley, 3 Bulst. 74, 1 Roll. 244; Law v. Harwood, Cro. Car. 140, W. Jones, 196; Cane v. Golding, Sty. 169, 176; Manning v. Avery, 3 Keb. 153; Haddan v. Lott, 15 C. B. 411; Evans v. Harlow, 5 Q. B. 624; Ashford v. Choate, 20 Up. Can; C. P. 471; Collins v. Whitehead, 34 Fed. 121; Ebersole v. Fields, 181 Ala. 421; Stark v. Chitwood, 5 Kan. 141; Continental Co. v. Little, 135 Ky. 618; Swan v. Tappan, 5 Cush. 104; Gott v. Pulsifer, 122 Mass. 235; Dooling v. Budget Co., 144 Mass. 258; Boynton v. Shaw Co., 146 Mass. 219; Wilson v. Dubois, 35 Minn. 471; Tobias v. Harland, 4 Wend. 537; Madison Church v. Madison Church, 26 How. Pr. 72; Linden v. Graham, 1 Duer, 670; Bailey v. Dean, 5 Barb. 297; Kendall v. Stone, 5 N. Y. 14; Kennedy v. Press Co., 41 Hun, 422; Childs v. Tuttle, 48 Hun, 228; Maglio v. N. Y. Co., 93 App. Div. 546; Felt v. Germania Life Ins. Co., 149 App. Div. 14; Witteman Bros. v. Witteman Co., 88 Misc. 266; McGuinness v. Hargiss, 56 Wash. 162 Accord.

Compare Fleming v. McDonald, 230 Pa. St. 75.

The breach of a contract by a third person is special damage. Green v. Button, 2 C. M. & R. 707. But see contra, Kendall v. Stone, 5 N. Y. 14; Brentman v. Note, 3 N. Y. Sup. 420 (N. Y. City Court).

542. The arguments and the concurring opinions of Lords Watson, Macnaghten, Morris, and Shand are omitted.

543. Disparagement of goods. In the case cited it was held actionable to say falsely that plaintiffs’ manure was inferior to defendants’ if done without legal excuse. Young v. Macrae, 3 B. & S. 264; Alcott v. Millar, 21 T. L. R. 30; Dooling v. Budget Co., 144 Mass. 258 (semble); Boynton v. Shaw Co., 146 Mass. 219; Wilson v. Dubois, 35 Minn. 471; Wier v. Allen, 51 N. H. 177; Snow v. Judson, 38 Barb. 210; Kennedy v. Press Co., 41 Hun, 422 (semble); Paull v. Halferty, 63 Pa. St. 46; Young v. Geiske, 209 Pa. St. 515 Accord.

544. Lyne v. Nicholls, 23 T. L. R. 86; Barrett v. Associated Newspapers, 23 T. L. R. 666; Burkett v. Griffith, 90 Cal. 532 Accord.

Compare Marlin Fire Arms Co. v. Shields, 171 N. Y. 384.

545. Prestolite Co. v. Heiden, (C. C. A.) 219 Fed. 845; Zittlosen Mfg. Co. v. Boss, (C. C. A.) 219 Fed. 887; Coca-Cola Co. v. Butler, 229 Fed. 224; Hartzler v. Goshen Ladder Co., 55 Ind. App. 455; National Biscuit Co. v. Pacific Coast Biscuit Co., 83 N. J. Eq. 369; Sanford Iron Works v. Enterprise Machine Works, 130 Tenn. 669; Pacific Coast Milk Co. v. Frye, 85 Wash. 133 Accord. In March v. Billings, 7 Cush. 322, under similar circumstances, the plaintiff recovered in an action at law.

See also Coffin, Fraud as an Element of Unfair Competition, 16 Harvard Law Rev. 272; Wyman, Competition and the Law, 15 Harvard Law Rev. 427; Cox, The Prevention of Unfair Competition in Business, 5 Harvard Law Rev. 139; Cushing, On Certain Cases Analogous to Trade Marks, 4 Harvard Law Rev. 321.

Misleading similarity. Hanover Milling Co. v. Metcalf, 240 U. S. 403; McDonald Mfg. Co. v. Mueller Mfg. Co., 183 Fed. 972; British American Tobacco Co. v. British American Cigar Stores Co., (C. C. A.) 211 Fed. 933; Hiram Walker & Sons v. Grubman, 224 Fed. 725; Jenkins v. Kelly & Jones Co., (C. C. A.) 227 Fed. 211; Jacoway v. Young, (C. C. A.) 228 Fed. 630; Van Zile v. Norub Mfg. Co., 228 Fed. 829; Moline Plow Co. v. Omaha Stores Co., (C. C. A.) 235 Fed. 519; Boston Shoe Shop v. McBroom Shoe Shop, 196 Ala. 262; Italian Swiss Colony v. Italian Vineyard Co., 158 Cal. 252; Dunston v. Los Angeles Van & Storage Co., 165 Cal. 89; Modesto Creamery v. Stanislaus Creamery Co., 168 Cal. 289; Motor Accessories Co. v. Marshalltown Mfg. Co., 167 Ia. 202; Bonnie & Co. v. Bonnie Bros., 160 Ky. 487; Crutcher v. Starks, 161 Ky. 690; George G. Fox Co. v. Best Baking Co., 209 Mass. 251; C. A. Briggs & Co. v. National Wafer Co., 215 Mass. 100; Grocers’ Supply Co. v. Dupuis, 219 Mass. 576; Rodseth v. Northwestern Marble Works, 129 Minn. 472; Rubber & Celluloid Co. v. Rubber Bound Brush Co., 81 N. J. Eq. 419, 519; Westcott Chuck Co. v. Oneida Chuck Co., 199 N. Y. 247; World’s Dispensary Ass’n v. Pierce, 203 N. Y. 419; Material Men’s Ass’n v. New York Material Men’s Ass’n, 169 App. Div. 843; German American Button Co. v. Heymsfeld, 170 App. Div. 416; Collier v. Jones, 66 Misc. 97; Frohman v. William Morris, 68 Misc. 461; Elbs v. Rochester Egg Carrier Co., 134 N. Y. Supp. 979; Columbia Engineering Works v. Mallory, 75 Or. 542; Rosenburg v. Fremont Undertaking Co., 63 Wash. 52; J. I. Case Plow Works v. J. I. Case Machine Co., 162 Wis. 185.

Use of one’s own name, see L. E. Waterman Co. v. Modern Pen Co., 235 U. S. 88; Borden Ice Cream Co. v. Borden’s Consolidated Milk Co., (C. C. A.) 201 Fed. 510; Deister Concentrator Co. v. Deister Machine Co., 63 Ind. App. 412; C. H. Batchelder Co. v. Batchelder, 220 Mass. 42; Zagier v. Zagier, 167 N. C. 616.

Where defendant passes off his product as plaintiff’s, recovery is allowed without proof of actual damage. Blofeld v. Payne, 4 B. & A. 410; Singleton v. Bolton, 3 Doug. 293 (semble); Sykes v. Sykes, 3 B. & C. 541; Morison v. Salmon, 2 M. & G. 385; Crawshay v. Thompson, 4 M. & G. 357 (semble); Rodgers v. Nowill, 5 C. B. 109; Forster Co. v. Cutter Co., 211 Mass. 219. Compare Glendon Co. v. Uhler, 75 Pa. St. 467.

546. The learned judge here discussed McDonald v. Snelling, 14 All. 290, and Rigby v. Hewitt, 5 Ex. 240, and cited 2 Pars. Cont. 456; Dixon v. Fawcus, 30 L. J. Q. B. 137; Tarleton v. McGawley, Peake, 270; Bell v. Midland Co., 10 C. B. N. S. 307 Keeble v. Hickeringill, 11 East, 574, n.

547. Defendant put out an envelope, with the word “telegram” conspicuously printed thereon, similar to that used by plaintiff, a telegraph company, to be used for advertising circulars. Plaintiff claimed that it tended to make its patrons think plaintiff was imposing on them by allowing advertisers to use its facilities in order to gain their attention and so injured its business. An injunction was denied. Postal Telegraph Co. v. Livermore & Knight Co., 188 Fed. 696.

In Riding v. Smith, 1 Ex. D. 91, plaintiff sued for injury to his business due to defendant’s charging his wife with adultery, by reason whereof customers ceased to deal with him.

In Hamon v. Falle, 4 App. Cas. 247, an officer of an insurance company notified a shipowner that the company would not insure the ship if plaintiff was employed as master. Defendant set up that he honestly believed plaintiff unfit. See also Bowen v. Matheson, 14 All. 499.

In Morasse v. Brochu, 151 Mass. 567, defendant in a sermon warned his congregation against a physician who had been excommunicated for remarrying after divorce.

548. Only the opinion of the court is given.

549. The opinion of the court on this point is omitted. The defendant’s contention was not sustained.

550. Only the opinion is given.

551. “It is contended that the amount of the plaintiff’s loss is so entirely a matter of pure chance as to be incapable of assessment. I cannot for this purpose draw any distinction between a chance and a probability. In the Oxford English Dictionary one of the definitions of ‘chance’ is ‘a possibility or probability of anything happening, as distinct from a certainty,’ and a citation is given from Reid’s Intellectual Powers, ‘The doctrine of chances is a branch of mathematics little more than an hundred years old.’ The two words ‘chance’ and ‘probability’ may be treated as being practically interchangeable, though it may be that the one is somewhat less definite than the other.... It is obvious, of course, that the chance or probability may in a given case be so slender that a jury could not properly give more than nominal damages, say one shilling; if they had done so in the present case, it would have been entirely a question for them, and this Court could not have interfered. But in the present competition we find chance upon chance, two of which the plaintiff had succeeded in passing. From being one of six thousand she had become a member of a class of fifty, and, as I understand it, was first in her particular division by the votes of readers of the paper; out of those fifty there were to be selected twelve prize-winners; it is obvious that her chances were then far greater and more easily assessable than when she was only one of the original six thousand. If the plaintiff had never been selected at all, the case would have been very different; but that was not the case. In my opinion the existence of a contingency, which is dependent on the volition of a third person, is not enough to justify us in saying that the damages are incapable of assessment.” Farwell, L. J., in Chaplin v. Hicks, [1911] 2 K. B. 786, 798.

552. Adler v. Fenton, 24 How. 407; Findlay v. McAllister, 113 U. S. 104 (semble); Austin v. Barrows, 41 Conn. 287; Green v. Kimble, 6 Blackf. 552; Moody v. Burton, 27 Me. 427; Lamb v. Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145; Security Bank v. Reger, (Okl.) 151 Pac. 1170; LeGierse v. Kellum, 66 Tex. 242 Accord.

Penrod v. Mitchell, 8 S. & R. 522; Penrod v. Morrison, 2 Pen. & W. 126; Mott v. Danforth, 6 Watts, 305; Hopkins v. Beebe, 26 Pa. St. 85, 87; Kelsey v. Murphy, 26 Pa. St. 78, 84; Collins v. Cronin, 117 Pa. St. 35, 45 Contra. See note in 47 L. R. A. 433–440.

In Smith v. Tonstall, Carthew, 3, defendant was held liable for conspiracy with plaintiff’s debtor on scire facias to procure a false judgment and anticipate plaintiff by execution thereon and carrying off of all the debtor’s property. Findlay v. McAllister, 113 U. S. 104 (semble); Adams v. Paige, 7 Pick. 541 Accord. See Pullen v. Headberg, 53 Col. 502.

553. Only the opinion is given, and it is somewhat abridged.

554. In Randall v. Hazelton, 12 All. 412, plaintiff, a mortgagor, had a gratuitous promise from the mortgagee not to foreclose without notice. In order to obtain the property, defendant falsely told the mortgagee that plaintiff wished the mortgage assigned to defendant and obtained an assignment and foreclosed without plaintiff’s knowledge.

555. Statement, and part of opinion, omitted.

556. In Rice v. Manley, 66 N. Y. 82, plaintiff had a contract with a third person for a cheese. By means of a forged telegram defendant procured the third person to sell to him instead. The contract was within the Statute of Frauds, but it was found that the third person would have performed but for defendant’s act.

557. The arguments of counsel are omitted.

558. See American Ins. Co. v. France, 111 Ill. App. 382; Davis v. New England Pub. Co., 203 Mass. 470; Haney Mfg. Co. v. Perkins, 78 Mich. 1; Benton v. Pratt, 2 Wend. 385.

“[If, from the nature of the case, the amount of damage caused to a plaintiff by the tort of a defendant cannot be estimated with certainty, shall the defendant therefore be exonerated from liability?] Certainty, it is true, would thus be attained, but it would be the certainty of injustice.” Christiancy, J., in Allison v. Chandler, 11 Michigan, 542, 555. See also pp. 553–556.

559. Standard Oil Co. v. Doyle, 118 Ky. 662; Dickson v. Dickson, 33 La. Ann. 1261 Accord.

Threats of vexatious suits against customers: Emack v. Kane, 34 Fed. 46; Lewin v. Welsbach Light Co., 81 Fed. 904; Farquhar Co. v. National Harrow Co., 99 Fed. 160; Adriance v. National Harrow Co., 121 Fed. 827, 98 Fed. 118; Dittgen v. Racine Paper Goods Co., 164 Fed. 85; Electric Renovator Co. v. Vacuum Cleaner Co., 189 Fed. 754; Atlas Underwear Co. v. Cooper Underwear Co., 210 Fed. 347; Shoemaker v. South Bend Spark Arrester Co., 135 Ind. 471; Pratt Food Co. v. Bird, 148 Mich. 631.

560. St. Johnsbury Co. v. Hunt, 55 Vt. 570 (arrest of plaintiff’s engineer on a malicious and baseless charge, whereby the running of plaintiff’s train was delayed) Accord.

561. Gunter v. Astor, 4 Moore, 12; Hartley v. Cummings, 5 C. B. 247; Jones v. Blocker, 43 Ga. 331; Wharton v. Jossey, 46 Ga. 578; Lee v. West, 47 Ga. 311 (semble); Smith v. Goodman, 75 Ga. 198; Bundy v. Dodson, 28 Ind. 295; Jones v. Tevis, 4 Litt. 25; Tyson v. Ewing, 3 J. J. Marsh, 185; Carew v. Rutherford, 106 Mass. 1; Bixby v. Dunlap, 56 N. H. 456; Stille v. Jenkins, 3 Green, (N. J.) 302; Scidmore v. Smith, 13 John. 322; Covert v. Gray, 34 How. Pr. 450; Johnston Co. v. Meinhardt, 9 Abb. N. C. 393; Stout v. Woody, 63 N. C. 37; Haskins v. Royster, 70 N. C. 601; Robinson v. Culp, 3 Brev. 302; Daniel v. Swearengen, 6 S. C. 297; Fowler v. Stonum, 6 Tex. 60; Thacker Co. v. Burke, 59 W. Va. 253; Cowper v. Macfarlane, 6 Sess. Cas., 4th Series, 683 Accord.

See, also, Martinez v. Gerber, 3 M. & G. 88.

An action will lie against one who induces a servant to violate his duty not to communicate the trade secrets of his employer. Jones v. Westervelt, 7 Cow. 445; Kerr v. Roxburgh, 3 Murr. (Scotland) 126; Roxburgh v. McArthur, 3 Sess. Cas., 2d Series, 556.

562. In Blake v. Lanyon, 6 T. R. 221, a journeyman, while his work was unfinished, left plaintiff and hired with defendant, who then did not know the facts. Defendant was held liable for retaining the journeyman after notice. Fawcet v. Beavres, 2 Lev. 63; Pilkington v. Scott, 15 M. & W. 657; Kennedy v. McArthur, 5 Ala. 151; Dacy v. Gay, 16 Ga. 203; Everett v. Sherfey, 1 Ia. 356; Stowe v. Heywood, 7 All. 118; Sargent v. Mathewson, 38 N. H. 54; Dickson v. Taylor, 1 Murr. (Scotland) 141 Accord. Adams v. Bafeald, 1 Leon. 240; Caldwell v. O’Neal, 117 Ga. 775 (if contract is oral only) Contra.

It was said also that there was no liability for the hiring of plaintiff’s journeyman without notice of the facts. Eades v. Vandeput, 5 East, 39 n. (a); Sherwood v. Hall, 3 Sumn. 127; Ferguson v. Tucker, 2 Har. & G. 182; Butterfield v. Ashley, 6 Cush. 249; Sargent v. Mathewson, 38 N. H. 54; Clark v. Clark, 63 N. J. Law, 1; Stuart v. Simpson, 1 Wend. 376; Caughey v. Smith, 47 N. Y. 244; Bell v. Lakin, 1 McMull. 364; Conant v. Raymond, 2 Aik. 243 Accord.

563. The arguments of counsel are omitted.

564. “The rule which governs the numerous cases upon this subject is, that where the proximate effect of the criminal connection is an incapacity to labor, by reason of which the master loses the services of his servant, such loss of service is deemed to be the immediate effect of the connection, and entitles the master to his action. The same principle which gives a master an action where the connection causes pregnancy or sexual disease applies to all cases where the proximate consequence of the criminal act is a loss of health resulting in a loss of service. There may be cases in which the seduction, without producing pregnancy or sexual disease, causes bodily injury, impairing the health of the servant, and resulting in a loss of services to her master. So the criminal connection may be accomplished under such circumstances, as, for instance, of violence or fraud, that its proximate effect is mental distress or disease, impairing her health and destroying her capacity to labor. In either of these cases the master may maintain an action, because the loss of services is immediately caused by the connection, as much as in cases of pregnancy or sexual disease. Vanhorn v. Freeman, 1 Halst. 322. But if the loss of health is caused by mental suffering, which is not the consequence of the seduction, but is produced by subsequent intervening causes, such as abandonment by the seducer, shame resulting from exposure, or other similar causes, the loss of services is too remote a consequence of the criminal act, and the action cannot be maintained. Boyle v. Brandon, 13 M. & W. 738; Knight v. Wilcox, 14 N. Y. 413.

“In the case at bar, as the ruling appears to have been general that the action could not be maintained unless pregnancy or sexual disease was proved, we think a new trial should be granted.” Morton, J., in Abrahams v. Kidney, 104 Mass. 222. See to the same effect Blagge v. Ilsley, 127 Mass. 191; Clark v. Clark, 63 N. J. Law, 1; White v. Nellis, 31 N. Y. 405; Ingerson v. Miller, 47 Barb. 47.

565. The father can maintain no action in such a case: Goodwin v. Thompson, 2 Greene, 329; Jones v. Tevis, 4 Litt. 25; Hervey v. Moseley, 7 Gray, 479; Beard v. Holland, 59 Miss. 161, 164; Wilkinson v. Dellinger, 126 N. C. 462. Unless the daughter was induced to marry the defendant by the latter’s fraud. Hills v. Hobert, 2 Root, 48; Goodwin v. Thompson, supra.

566. A part of the argument and the concurring opinion of Montague Smith, J., with which Keating, J., agreed, are omitted.

567. Whether it is an excess of fair competition to induce a servant at will to leave the plaintiff, and enter the service of the defendant, cannot be said to be definitely settled. In Salter v. Howard, 43 Ga. 601, the plaintiff prevailed; but in Campbell v. Cooper, 34 N. H. 49, the defendant was successful. The other cases commonly cited for the plaintiff are distinguishable. In Sykes v. Dixon, 9 A. & E. 693, and Peters v. Lord, 18 Conn. 337, the servant had left the plaintiff of his own head before entering the service of the defendant. In Keane v. Boycott, 2 H. Bl. 512, the defendant, a recruiting officer, officiously induced the servant to leave the plaintiff, in order to enlist as a soldier. In Speight v. Oliviera, 2 Stark. 493; Morgan v. Molony, 7 Ir. L. R. N. S. 101, 240; Ball v. Bruce, 21 Ill. 161; and Noice v. Brown, 39 N. J. Law, 569, as in the principal case, the enticement was for an immoral purpose. In Cox v. Muncey, 6 C. B. N. S. 375, a father induced an apprentice at will to leave the master, but the motive of the father does not appear.

“[Keane v. Boycott, 2 H. Bl. 512] seems contrary to the general principle and is certainly opposed to the decision of the Court of Appeals in DeFrancesco v. Barnum, 45 Ch. D. 430. The defendant there had enticed away an apprentice of the plaintiff. But the indenture contained unreasonable stipulations, and it was held that it might be avoided by the apprentice, and that it was not unlawful for the defendant to persuade the apprentice to do that which was lawful. It is different, however, if malice, force or fraud be used to take or decoy the servant away. In that case the master has a right of action, even though the servant be under no binding obligation. Per Willes, J., Evans v. Walton, L. R. 2 Com. PL., pp. 621–622.” Clerk and Lindsell, Torts, 5 ed. 227.

To induce a servant who is under contract with the plaintiff to leave the latter at the expiration of the term of service, and to enter the defendant’s service, is no more than lawful competition. Nichol v. Martyn, 2 Esp. 732; Boston Manufactory v. Binney, 4 Pick. 425.

568. The statement of the case and the arguments of counsel are omitted.

569. The learned judge here discussed and approved of Blake v. Lanyon, 6 T. R. 221.

570. The rest of the opinion on this point is omitted.

571. See note (4) to Skinner v. Gunton, 1 Wms. Saund. 230.—Reporter’s note.

572. Only the opinion of Coleridge, J., on this point is given. It is now generally admitted that this learned judge, although wrong on this point, was right in maintaining that the actress was not a servant.

573. William Hankford, Justice of the Common Pleas in 1398, afterwards, in 1414 (1 H. 5), Chief Justice of England.—Reporter’s note.

574. Cattle v. Stockton Co., L. R. 10 Q. B. 453, 458 (semble); Angle v. Chicago R. Co., 151 U. S. 1; Bitterman v. Louisville R. Co., 207 U. S. 205, 222–23; Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 394 (semble); Heaton Co. v. Dick, 55 Fed. 23, 52 Fed. 667; Heath v. American Book Co., 97 Fed. 533; Tubular Co. v. Exeter Co., 159 Fed. 824; Motley v. Detroit Co., 161 Fed. 389; Chipley v. Atkinson, 23 Fla. 206; Doremus v. Hennessy, 176 Ill. 608; Heywood v. Tillson, 75 Me. 225, 236 (semble); Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556; Walker v. Cronin, 107 Mass. 555; Beekman v. Marsters, 195 Mass. 205; Joyce v. Great Northern R. Co., 100 Minn. 225; Mealey v. Bemidji Lumber Co., 118 Minn. 427; Lally v. Cantwell, 30 Mo. App. 524; Van Horn v. Van Horn, 52 N. J. Law, 284; Haskins v. Royster, 70 N. C. 601; Jones v. Stanly, 76 N. C. 355; Flaccus v. Smith, 199 Pa. St. 128; Delz v. Winfree, 80 Tex. 400, 405; Raymond v. Yarrington, 96 Tex. 443; Brown Co. v. Indiana Stove Works, 96 Tex. 453; Duffies v. Duffies, 76 Wis. 374, 377 (semble); Martens v. Reilly, 109 Wis. 464; Hewitt v. Ontario Co., 44 Up. Can. Q. B. 287 Accord.

Boyson v. Thorn, 98 Cal. 578; Barron v. Collins, 49 Ga. 580 (semble); Chambers v. Baldwin, 91 Ky. 121; Bourlier v. Macauley, 91 Ky. 135; Kline v. Eubanks, 109 La. 241 (semble); Ashley v. Dixon, 48 N. Y. 430; De Jong v. Behrman, 148 App. Div. 37; Laskey Feature Play Co. v. Fox, 93 Misc. 364; Swain v. Johnson, 151 N. C. 93; Sleeper v. Baker, 22 N. D. 386 Contra.

It was decided before the case of Lumley v. Gye that an action for slander of title was maintainable where the only special damage laid was the breach by a third person of his contract with the plaintiff. Green v. Button, 2 C. M. & R. 707. But see, contra, Kendall v. Stone, 5 N. Y. 14; Brentman v. Note, 3 N. Y. Sup. 420 (N. Y. City Court).

So an action would doubtless lie for defamatory words, not actionable per se, which induced a third person to break his contract to marry the plaintiff. But compare Davis v. Condit, 124 Minn. 365 (seduction of plaintiff’s fiancée).

As to justification, see Leonard v. Whetstone, 34 Ind. App. 383.

On the general subject, see also Sweeney v. Smith, 167 Fed. 385; Mahoney v. Roberts, 86 Ark. 130; Citizens’ Light, &c. Co. v. Montgomery Light, &c. Co., 171 Fed. 553, 560, 561; McGurk v. Cronenwett, 199 Mass. 457; Globe Ins. Co. v. Fireman’s Ins. Co., 97 Miss. 148; Biggers v. Matthews, 147 N. C. 299; Thacker Coal Co. v. Burke, 59 W. Va. 253; Huffcutt, Interference with Contracts and Business in New York, 18 Harvard Law Rev. 423.

575. The statement of facts and the dissenting opinion of Lord Coleridge, C. J., are omitted.

576. “That this was a wrongful interference on the part of the Omaha Company, and that it resulted directly in loss to the contractor and to the Portage Company, is apparent. It is not an answer to say that there was no certainty that the contractor would have completed his contract, and so earned these lands for the Portage Company. If such a defence were tolerated, it would always be an answer in case of any wrongful interference with the performance of a contract, for there is always that lack of certainty. It is enough that there should be, as there was here, a reasonable assurance, considering all the surroundings, that the contract would be performed in the manner and within the time stipulated, and so performed as to secure the land to the company.

“It certainly does not lie in the mouth of a wrong-doer, in the face of such probabilities as attend this case, to say that perhaps the contract would not have been completed even if no interference had been had, and that, therefore, there being no certainty of the loss, there is no liability.” Brewer, J., in Angle v. Chicago R. Co., 151 U. S. 1, 12.

577. Statement abridged. Arguments omitted; also part of opinions.

578. As to the distinction between intent and motive, see Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 253, 256–259.

579. Compare Tunstall v. Sterns Coal Co., (C. C. A.) 192 Fed. 808. Section 3 of the Trade Disputes Act, 6 Edward 7, Chap. 47, enacted Dec. 21, 1906, is as follows:—

“Sect. 3. An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.”

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 253, 345, 429.

580. Only the opinion of Bowen, L. J., is given. Fry, L. J., concurred, but Lord Esher, M. R., dissented. The decision was afterwards affirmed in the House of Lords, [1892] A. C. 25.

581. Payne v. Railroad Co., 13 Lea, 507 (Freeman and Turney, JJ., dissenting); South Royalton Bank v. Suffolk Bank, 27 Vt. 505; Delz v. Winfree, 80 Tex. 400, 405 (semble) Accord. See Lough v. Outerbridge, 143 N. Y. 271.

582. Statement rewritten.

583. See Boggs v. Duncan Furniture Co., 163 Ia. 106; Rogers, Predatory Price Cutting as Unfair Trade, 27 Harvard Law Rev. 139.

584. The arguments are omitted.

585. In Holbrook v. Morrison, 214 Mass. 209, a land owner put a sign on her land reading, “For Sale. Best Offer From Colored Family.” Defendant wished to sell but was also moved by ill will toward plaintiffs, whose real estate business was seriously interfered with by the threatened sale. See Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 420; Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 429, 453, 455.

586. In this case, however, the means used by defendant involved trespasses and fraud. See American Waltham Watch Co. v. United States Watch Co., 173 Mass. 85.

587. See Faloon v. Schilling, 29 Kan. 292.

“Spite fence.” Malicious use of property to the injury of a neighbor was held not actionable in Capital Bank v. Henty, 7 A. C. 741, 766 (semble); Giller v. West, 162 Ind. 17; Brostrom v. Lauppe, 179 Mass. 315; Bordeaux v. Greene, 22 Mont. 254; Mahan v. Brown, 13 Wend. 261; Auburn Co. v. Douglass, 9 N. Y. 444 (semble); Pickard v. Collins, 23 Barb. 444; Levy v. Brothers, 4 Misc. 48; Letts v. Kessler, 54 Ohio St. 73; Koblegard v. Hale, 60 W. Va. 37; Metzger v. Hochrein, 107 Wis. 267.

Contra Norton v. Randolph, 176 Ala. 381; Burke v. Smith, 69 Mich. 380; Flaherty v. Moran, 81 Mich. 52; Kirkwood v. Finegan, 95 Mich. 543; Peek v. Roe, 110 Mich. 52; Barger v. Barringer, 151 N. C. 433. See Wilson v. Irwin, 144 Ky. 311; Metz v. Tierney, 13 N. M. 363; Smith v. Speed, 11 Okl. 95; Haverstick v. Sipe, 33 Pa. St. 368; Shell v. Kemmerer, 13 Phila. 502; McCorkle v. Driskell, (Tenn.) 60 S. W. 172.

Malicious diversion of percolating water was held to give no right of action in Corporation of Bradford v. Pickles, [1895] A. C. 587; Meeker v. East Orange, 76 N. J. Law, 435; Phelps v. Nowlen, 72 N. Y. 39; Chatfield v. Wilson, 28 Vt. 49; Huber v. Merkel, 117 Wis. 355.

Contra Chasemore v. Richards, 7 H. L. Cas. 349, 388 (semble); Roath v. Driscoll, 20 Conn. 533, 540–44 (semble); Chesley v. King, 74 Me. 164 (semble); Stevens v. Kelley, 78 Me. 445, 452; Greenleaf v. Francis, 18 Pick. 119 (semble); Swett v. Cutts, 50 N. H. 439, 447 (semble); Wyandot Club Co. v. Sells, 3 Ohio N. P. 210; Wheatley v. Baugh, 25 Pa. St. 528, 533 (semble); Haldeman v. Bruckhart, 45 Pa. St. 514 (semble); Lybe’s Appeal, 106 Pa. St. 626 (semble); Williams v. Laden, 161 Pa. St. 283 (semble); Miller v. Black Rock Co., 99 Va. 747 (semble).

But cases of this type are now coming to be treated on a different principle of waste or unreasonable use of water underlying neighboring tracts. Gagnon v. French Lick Hotel Co., 163 Ind. 687; Barclay v. Abraham, 121 Ia. 619; Stillwater Water Co. v. Farmer, 89 Minn. 58; Springfield Waterworks Co. v. Jenkins, 62 Mo. App. 74.

(1) Has the owner of land the same ownership and control of percolating water (water passing, or filtering, through the ground beneath the surface of the earth, without flowing in definite channels), that he has of the soil, e. g., the sand and the rocks?

Or (2) has he only a limited and qualified right in the percolating water; a right of reasonable user limited by the correlative rights of his neighbors?

On those questions there is, in recent cases, a conflict of authority. For illustrative cases endorsing the first theory, see Acton v. Blundell, 12 M. & W. 324; Mayor of Bradford v. Pickles, [1895] A. C. 587; Meeker v. East Orange, 76 N. J. Law, 435. For illustrative cases favoring the second theory, see Bassett v. Salisbury Mfg. Co., 43 N. H. 569 (where the question related to the right of the defendant to prevent water percolating under the surface of plaintiff’s land from passing off through defendant’s land); Katz v. Walkinshaw, 141 Cal. 116, 140, 141.

We are concerned here only to point out how the adoption of one or the other of the above conflicting views may affect the materiality of the landowner’s motive in the use of percolating water.

If the first theory is adopted, then, in some jurisdictions, the landowner would not be held liable, even though actuated by bad motive (Mayor of Bradford v. Pickles, [1895] A. C. 587); and, in all other jurisdictions, he would be liable only when, and because, he was actuated by bad motive.

But if the second theory is adopted, the landowner might frequently be held liable, irrespective of motive. On the second theory percolating water might be regarded as, in a certain sense, the common property of the adjoining owners (bearing some analogy to an underground lake); and it would be held that each owner is entitled to only a reasonable share, and is entitled to use that share only for certain purposes. See 3 Farnham, Waters, § 935. Upon this view an owner who uses more than his share, or who uses it for purposes outside those legally allowable, would be liable entirely irrespective of motive. “Later American cases,” says Professor Huffcut, “transfer the emphasis from the showing of ‘malice’ to a showing of ‘unreasonable user,’ which may or may not be accompanied by malice.” 13 Yale Law Journal, 222.

We may add that if bad motive should not be held, in itself, a substantive ground of liability, yet the existence of bad motive might be a piece of evidence bearing upon the question of reasonable user. User for the sole purpose of gratifying ill will might not be deemed reasonable.

On the general question of liability for malevolent acts in reference to percolating water, see, Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415; Huffcut, Percolating Waters: the Rule of Reasonable User, 13 Yale Law Journ. 222.

588. Statements abridged. Portions of opinion omitted.

589. In Rideout v. Knox, 148 Mass. 368, where a similar statute was held constitutional, it was held error to charge that defendant could not justify building the fence unless his sole motive was a legitimate use; malice must be the dominant motive. See also Ingwerson v. Barry, 118 Cal. 342; Gallagher v. Dodge, 48 Conn. 387; Holmes v. Fuller, 68 Vt. 207; Karasek v. Peier, 22 Wash. 419; Jones v. Williams, 56 Wash. 588; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411, 414–415.

590. The rest of the opinion is omitted. This case was followed in Carrington v. Taylor, 11 East, 571. See Lamprey v. Danz, 86 Minn. 317; Whittaker v. Stangvick, 100 Minn. 386; Meredith v. Triple Island Gun Club, 113 Va. 80.

591. Only the opinion of Bramwell, B., is given. Pollock, C. B., Martin and Pigott, BB., concurred.

592. Statement rewritten. Only so much of the case is given as relates to a single point.

593. Statement rewritten. Arguments omitted. Some of the opinions are entirely omitted, and none are given in full.

594. ... “The litigants are members of two rival associations of workingmen, registered under the Trade Unions Act of 1871.”... Lord Watson, [1898] A. C., p. 90. “It is not a dispute between employers and employed,—between capital and labor,—but rather one between the members of one trade union and of another trade union.”... Lord Ashbourne, ibid. p. 109. “Each party had the financial support of their union.” Lord Macnaghten, p. 147.

595. As to the terms of the ironworkers’ employment, see Lord Watson, pp. 90, 99, and Lord Herschell, p. 130.

596. See Lord Macnaghten, p. 146.

597. It was held, both by Kennedy, J., and by the Court of Appeal, that Jackson and Knight were not liable. Upon this branch of the case there was no appeal to the House of Lords.

598. See Lord Macnaghten, p. 148.

599. The statement here given is compiled from extracts recited in the opinions of Lord Shand, p. 162, Lord Halsbury, p. 82, and Lord Macnaghten, p. 149.

600. See Veeder, Advisory Opinions of the Judges in England, 13 Harv. Law Rev. 358.

601. ... “There is no ground for even a suggestion that the defendant’s acts were due to competition in trade or employment. There could be no competition between the two sets of men in the circumstances under which they were then working, the one at wood, the other at iron only; and even if they were competing, the plaintiffs were working well within their right.” Hawkins, J., p. 23. “Now, although according to the principles of the Mogul Case the action of Allen might have been justified on the principles of trade competition, if it had been confined to the time when the respondents were doing ironwork, and were therefore acting in competition with the boilermakers, it appears to me that as soon as he overstepped those limits, and induced their employers to dismiss them by way of punishment, his action was without just cause or excuse, and, consequently, malicious within the legal meaning of that word.” Cave, J., p. 37. “This action was not an effort, by competition, to enable the boilermakers to get the work instead, but to punish the plaintiffs by causing the employment of other shipwrights in their room.” Lord Ashbourne, p. 111.

602. German Civil Code, §§ 226, 826.

226. The exercise of a right is not permitted, when its sole object is to injure another.

826. Whoever intentionally inflicts damage upon another in a morally reprehensible manner is bound to compensate the other for the damage.

See also Digest, xxxix, 3, 1, § 12, xxxix, 3, 2, § 9; L. 17, 55; Domat, Civil Law (Cushing’s ed.) § 158; Erskine, Institutes of the Law of Scotland, Bk. II, tit. 1, § 2; Bell, Principles of the Law of Scotland, § 966; Planiol, Traité Elémentaire de droit civil, (4 ed.), II, §§ 870–72; Windscheid, Lehrbuch des Pandektenrechts, I, § 121; Ames, How Far an Act May Be a Tort Because of the Wrongful Motive of the Actor, 18 Harvard Law Rev. 411; Walton, Motive as an Element in Torts in the Common and in the Civil Law, 22 Harvard Law Rev. 349.

603. Some opinions are omitted. None are given in full. Arguments omitted.

604. Read by Lord Davey in Lord Lindley’s absence.

605. [1895] 2 Q. B. 22, 23; [1898] A. C. 3.

606. [1898] A. C. p. 19, Lord Watson; p. 115, Lord Herschell; pp. 147–150, Lord Macnaghten; pp. 161, 165, Lord Shand; p. 175, Lord Davey; p. 178, Lord James.

607. England, Trade Disputes Act, 1906, 6 Ed. 7, c. 47.

1.—The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875:—

“An act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done without any such agreement or combination, would be actionable.”

2.—(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.

(2) Section seven of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from “attending at or near” to the end of the section.

3.—An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labor as he wills.

4.—(1) An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.

(2) Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.

5.—(1) This Act may be cited as the Trade Disputes Act, 1906, and the Trade Union Acts, 1871 and 1876, and this Act may be cited together as the Trade Union Acts, 1871 to 1906.

(2) In this Act the expression “trade union” has the same meaning as in the Trade Union Acts, 1871 and 1876, and shall include any combination as therein defined, notwithstanding that such combination may be the branch of a trade union.

(3) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression “trade dispute” means any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labor, of any person, and the expression “workmen” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned Act, the words “between employers and workmen” shall be repealed.

See Smith, Crucial Issues in Labor Litigation, 20 Harvard Law Rev. 345, 351, note 3.

608. The statement has been abridged.

609. “The defendant associations had the absolute right to threaten to do that which they had the right to do.” Parker, C. J., in National Protective Association v. Cumming, 170 New York, 315, p. 329.

“It will be said that a man has the absolute right to threaten to do that which he has a right to do. Granted that what you may absolutely do you may absolutely threaten to do (give unqualified notice of your intention to do). But it does not follow that you may conditionally threaten to do it. The right to absolutely refuse to work and the right to conditionally refuse do not, as against third persons, i. e., persons other than the employer, stand to each other in the relation of the greater to the less. The former does not necessarily include the latter. They are distinct from each other; and the latter may sometimes be the more important and the more dangerous right of the two.” 20 Harvard Law Rev., p. 273.

“The right to quit an employment which is terminable at will may include a right to give absolute and unqualified notice of intention to leave.”

“It may also include, as against an employer, a right to annex any possible condition to an offer to work or to a threat to refrain from working. By ‘right as against an employer’ we mean that an employer could not maintain an action against a laborer for annexing such conditions. The employer is not legally damaged by such an offer. He is not bound to accept it. As between B and C, the person with whom B is directly dealing, it may be true that ‘the right to refuse to deal involves the right to name any terms which one pleases, and to refuse to deal except on these terms.’ C cannot maintain an action against B for insisting on unreasonable terms. But the terms or conditions annexed to an offer may relate to the offeree’s relations to a third person, and [if the offeree accepts and performs the conditions] that may raise a question whether such third person has any ground of complaint.”

“We think that the right to work or not to work does not include, as against third persons, the right to annex any possible condition to an offer to work or to a notice of intention to refrain from work. Suppose that B offers to work for C on condition that C commits a battery on A. Could B effectively deny that he instigated the commission of the battery? Could B escape liability to A on the ground that he was merely stating to C the conditions on which he was willing to exercise his right to labor or not to labor?” 20 Harvard Law Rev. 270–271.

The contrary view is open to several objections:—

“1. It assumes that, if certain conduct of B does not violate any legal right of C, it cannot infringe a legal right of A.

“2. It overlooks the distinction between unconditionally exercising a right, and offering to exercise it (or to refrain from exercising it) on condition that the offeree shall take action which is intended to produce (and does produce) damage to a third person.

“3. It assumes that one who intentionally instigates a second person to inflict damage on a third person can escape responsibility by putting the instigation in the form of a conditional offer to exercise, or to refrain from exercising, a right which he had against the second person.” 20 Harvard Law Rev. 269.

610. “In many of the cases the element of combination or conspiracy is found. If the act be lawful, the combination or conspiracy to commit it does not make the act unlawful; if it be unlawful, the combination to commit it may render its commission easier and may aggravate the injury; but it does not change the character of the act. The fact of combination is treated by the courts as of great evidentiary value in deciding the question of coercion or duress.” Burke, J., in Sumwalt Ice Co. v. Knickerbocker Ice Co., 114 Md. 403, 414.

“The gist of a civil action of this sort is not the conspiracy but the deceit or fraud causing damage to the plaintiff, the combination being charged merely for the purpose of fixing joint liability on the defendants.” Rugg, J., in New England Foundation Co. v. Reed, 209 Mass. 556.

See also Romer, L. J., in Giblan v. National Amalgamated Union, [1903] 2 K. B. 600, 619–620. But compare Henshaw, J., in Vallejo Ferry Co. v. Solano Club, 165 Cal. 255.

611. Intimidation. See Springhead Co. v. Riley, 6 Eq. 551 (intimidating placards); Southern R. Co. v. Machinists Union, 111 Fed. 49; Knudsen v. Benn, 123 Fed. 636; Atchison R. Co. v. Gee, 139 Fed. 582; Pope Motor Co. v. Keegan, 150 Fed. 148 (collection of large crowd); Allis Chalmers Co. v. Iron Molders’ Union, 150 Fed. 155 (crowds); Goldfield Consolidated Mines Co. v. Goldfield Miners’ Union, 159 Fed. 500; Kolley v. Robinson, (C. C. A.) 187 Fed. 415; Fortney v. Carter, (C. C. A.) 203 Fed. 454; Bittner v. West Virginia Coal Co., (C. C. A.) 214 Fed. 716; Goldberg v. Stablemen’s Union, 149 Cal. 429; Underhill v. Murphy, 117 Ky. 640; Sherry v. Perkins, 147 Mass. 212 (intimidating banner); Ideal Mfg. Co. v. Ludwig, 149 Mich. 133 (crowd); Baltic Mining Co. v. Judge, 177 Mich. 632; Minnesota Stove Co. v. Cavanaugh, 131 Minn. 458; Jones v. Maher, 62 Misc. 388; O’Neil v. Behanna, 182 Pa. St. 236; Jensen v. Cooks’ Union, 39 Wash. 531; Commercial Printing Co. v. Tacoma Typographical Union, 85 Wash. 234.

Picketing, see American Steel Co. v. Wire Drawers’ Union, 90 Fed. 608; Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45; Sona v. Aluminum Castings Co., (C. C. A.) 214 Fed. 936; Karges Furniture Co. v. Woodworkers’ Union, 165 Ind. 421; Beck v. Teamsters’ Union, 118 Mich. 497.

Annoyance of workers resorting to plaintiff. Union P. R. Co. v. Ruef, 120 Fed. 102; Frank v. Herold, 63 N. J. Eq. 443; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219.

Inducing employer to break contracts. Read v. Friendly Society, [1902] 2 K. B. 732; Jonas v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Flaccus v. Smith, 199 Pa. St. 128.

Inducing employees to break contract. Hardie Tynes Mfg. Co. v. Cruse, 189 Ala. 66; Folsom v. Lewis, 208 Mass. 336; Jonas Glass Co. v. Glass Blowers’ Ass’n, 77 N. J. Eq. 219; Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

612. This section is as follows: “No person shall, by intimidation or force, prevent or seek to prevent a person from entering into or continuing in the employment of any person or corporation.”

613. In accord with the prevailing opinion, see Tunstall v. Stearns Coal Co., 192 Fed. 808; Folsom v. Lewis, 208 Mass. 336; Burnham v. Dowd, 217 Mass. 351; Fairbanks v. McDonald, 219 Mass. 291; Cornellier v. Haverhill Mfr’s Assn, 221 Mass. 554; Blanchard v. Newark District Council, 77 N. J. Law, 389; Ruddy v. United Journeyman Plumbers, 79 N. J. Law, 467, 81 N. J. Law, 574. Compare Giblan v. National Amalgamated Union, [1903] 2 K. B. 600; National Fire Proofing Co. v. Mason Builders’ Ass’n, 169 Fed. 259; Gill Engraving Co. v. Doerr, 214 Fed. 111.

Contra, Kemp v. Division No. 241, 255 Ill. 213.

Purpose of gaining control of the labor market. New England Cement Co. v. McGivern, 218 Mass. 198; Jacobs v. Cohen, 183 N. Y. 207; McCord v. Thompson Starrett Co., 129 App. Div. 130; Schwarcz v. International Union, 68 Misc. 528; Newton v. Erickson, 70 Misc. 291.

Compare Reynolds v. Davis, 198 Mass. 294.

614. See majority and minority opinions in the later case of Willcut & Sons Co. v. Driscoll, 200 Mass. 110, also Booth v. Burgess, 72 N. J. Eq. 181. Compare Rhodes v. Musicians’ Union, 37 R. I. 281.

615. The following condensed statement is taken from 20 Harvard Law Review, 445–447.

616. Loring, J., p. 583.

617. Ibid.

618. Only a part of the opinion is given (pp. 587–88).

619. Bossert v. Dhuy, 166 App. Div. 261, 221 N. Y. 342 Accord. But see Grassi Contracting Co. v. Bennett, 160 N. Y. Suppl. 279.

In Bohn Mfg. Co. v. Hollis, 54 Minn. 223, “a large number of retail lumber dealers formed a voluntary association, by which they mutually agreed that they would not deal with any manufacturer or wholesale dealer who should sell lumber directly to consumers not dealers, at any point where a member of the association was carrying on a retail yard; and they provided in their by-laws that, whenever any wholesale dealer or manufacturer made any such sale, the secretary should notify all the members of the fact. The plaintiff, a wholesaler, having made such a sale directly to a consumer, the secretary threatened to send notice of the fact, as provided in the by-laws, to all the members of the association.” (This statement is copied from 17 Green Bag, 218. See also statement by Professor Lewis, 44 Am. L. Reg. N. S. 469.) The court refused to grant an injunction against sending out the notice. Here the retail dealers did not threaten to cease dealing with any one except their competitors, i. e., wholesale dealers who should attempt to sell directly to consumers. They used no lever but their own conduct. They did not threaten to induce outsiders to refrain from working for, or selling goods to, the wholesalers. And even as to their own conduct, they did not threaten to abstain from dealings with wholesalers in all matters, but only in the purchase of lumber. Much less did they threaten to abstain from dealing with persons who dealt with the wholesalers. In a subsequent case the same court said: “It is to be noted that the defendants in the Bohn case had similar legitimate interests to protect which were menaced by the practice of wholesale dealers in selling lumber to contractors and consumers; and that the defendants’ efforts to induce parties not to deal with offending wholesale dealers were limited to the members of the association having similar interests to conserve, and that there was no agreement or combination or attempt to induce other persons not members of the association to withhold their patronage from such wholesale dealers.” Ertz v. Produce Exchange Co., 79 Minn. 140, 144. See also Jackson v. Stanfield, 137 Ind. 592; Brown v. Jacobs Pharmacy Co., 115 Ga. 429; and other cases collected by Professor Wyman, 17 Green Bag, 210, 222.

Strike unless plaintiff is discharged, as a means toward better conditions in the shop, see Minasian v. Osborne, 210 Mass. 250.

Strike to get rid of personally objectionable foreman. De Minico v. Craig, 207 Mass. 593.

620. Statement abridged. Portions of opinion omitted.

621. Gompers v. Bucks Stove & Range Co., 221 U. S. 418; Baldwin v. Escanaba Dealers’ Ass’n, 165 Mich. 98; Fink v. Butchers’ Union, 84 N. J. Eq. 638; McCormick v. Local Unions, 32 Ohio Cir. Ct. R. 165 Accord.

Compare Ex parte Heffron, 179 Mo. App. 639.

622. Bossert v. Dhuy, 221 N. Y. 342; Cohn & Roth Electric Co. v. Bricklayers’ Union, 92 Conn. 161 Accord. See Iron Molders’ Union v. Allis Chalmers Co., (C. C. A.) 166 Fed. 45. Also Wigmore, The Boycott as Ground for Damages, 21 American Law Rev. 509, and Interference with Social Relations, 21 American Law Rev. 764.