is admissible, in mitigation of damages; and evidence of bad reputation as to that phase of character involved in a case is competent, not to establish any facts in issue, but to explain conduct and to enable the jury better to weigh the evidence upon doubtful questions of fact bearing on the character of defendant.374 Therefore, bad reputation for integrity is admissible in charges of political dishonesty. "We should be loth to differentiate a want of integrity in political matters from the same failing in business or society." 375 The plaintiff's general social and personal standing may be shown in evidence as bearing on the question of damages. 370 And if plaintiff

374 Sage, District Judge, in Hallam v. Post Pub. Co., 55 Fed. 456, discussing Gilchrist v. McKee, 4 Watts, 380; Conroe v. Conroe, 47 Pa. St. 198; Drown v. Allen, 91 Pa. St. 393; Moyer v. Moyer, 49 Pa. St. 210; Duval v. Davy, 32 Ohio St. 604; Sanford v. Rowley, 93 Mich. 119, 52 N. W. 1119. And see Greenl. Ev. § 55. In an action for slander in imputing to plaintiff official misconduct, to show want of actual malice, defendant should have been allowed to prove what others had said to him in regard to plaintiff's official conduct. Callahan v. Ingram (Mo. Sup.) 26 S. W. 1020. Evidence of a general belief and suspicion that plaintiff was guilty of the acts charged in the slanderous words is admissible in mitigation of damages. Gray v. Ellzroth, 10 Ind. App. 587, 37 N. E. 551. It has, however, been held that in an action of libel only the "general" reputation of plaintiff can be shown in mitigation of damages. Thibault v. Sessions, 101 Mich. 279, 59 N. W. 624; Indianapolis Journal Newspaper Co. v. Pugh, 6 Ind. App. 510, 33 N. E. 991.

375 Taft, J., in Post Pub. Co. v. Hallam, 8 C. C. A. 201, 59 Fed. 530–537.

376 Larned v. Buffinton, 3 Mass. 546; Harding v. Brooks, 5 Pick. 244-247; Klumph v. Dunn, 66 Pa. St. 141-147; Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238. As to plaintiff's character, and, generally, increasing damage, see Morey v. Morning Journal Ass'n, 123 N. Y. 207, 25 N. E. 161; Enos v. Enos (Sup.) 11 N. Y. Supp. 415; Farrand v. Aldrich, 85 Mich. 593, 48 N. W. 628; Hintz v. Graupner, 138 III. 158, 27 N. E. 935; Dixon v. Allen, 69 Cal. 527, 11 Pac. 179. As to circulation of defendant's newspaper in aggravation of damage, see Farrand v. Aldrich, 48 N. W. 628; Patten v. Belo, 79 Tex. 41, 14 S. W. 1037. It is competent in a slander suit to admit proof, as bearing on the question of damages, that plaintiff has a family of young children, who would be disgraced by the charge. Enos v. Enos, 135 N. Y. 609, 32 N. E. 123. In a civil action for libel, plaintiff's general social standing may be shown in the evidence in chief, as bearing on the question of damages. Press Pub. Co. v. McDonald, 11 C. C. A. 155, 63 Fed. 238. "It is not competent to enter into the details of the finances of a defendant in a libel or 'slander suit. The inquiry should be directed to his financial standing in

alleges her good character and repute, and this is denied by the defendant, the plaintiff is not required to rest upon the legal presump. tion as to chastity and virtue,377 but she can properly offer proof under such allegation as part of her case.3 378

SLANDER OF TITLE OR PROPERTY.

182. Plaintiff can recover for disparaging words published concerning title or property whenever he shows

(a) That the statement is false;

(b) That the statement is malicious in fact;

(c) That the statement has caused him proximate and special pecuniary injury.9

The wrong called slander of title is, properly speaking, the basis of an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title.389 No specific name has been applied to cases which rest on the same foundation, but are not the same as slander of title.as Disparagement of property is clearly analogous.382 The old form of action. concerns realty only; the new relates to property generally,—realty

the community.

381

Though he may be possessed of considerable wealth, yet, if this be not generally known in the community, no greater injury can on that account be said to flow from the publication of the libel, or the utterance of the slander. It is his reputed, not his actual, standing. that bears upon the injury." Grant, J., in Farrand v. Aldrich, 85 Mich. 593, 48 N. W. 628-630.

377 Conroy v. Pittsburgh Times, 139 Pa. St. 334, 21 Atl. 154.

378 Stafford v. Morning Journal Ass'n, 142 N. Y. 598, 37 N. E. 625, distinguishing Houghtaling v. Kilderhouse, 1 N. Y. 530; Pratt v. Andrews, 4 N. Y. 493; Young v. Johnson, 123 N. Y. 226, 25 N. E. 363. And see Peters v. Bourneau, 22 Ill. App. 177.

379 Fraser, Torts, 116. And see Boynton v. Shaw Stocking Co., 146 Mass. 219, 15 N. E. 507; Wier v. Allen, 51 N. H. 177; Snow v. Judson, 38 Barb. 210; Kennedy v. Press Co., 41 Hun, 422.

380 Tindal, J., in Malachy v. Soper (1835) 3 Bing. N. C. 371–382. 381 Pig. Torts, 381, 382.

382 Western Counties Manure Co. v. Lawes Manure Co., L. R. 9 Exch. 218. But in Young v. Macrae, 3 Best & S. 264-270, Blackburn, J., says: "My own impression is that where there is a written depreciation of an article, unless it is a slander actionable in itself, no allegation of special damage will

and personalty, corporeal and incorporeal,-and is brought for a false statement injurious to the owner in his right to profits. It has been insisted that it is of little consequence whether the wrong is slander, or whether it is a statement of any other nature "calculated" to produce special damage.383 However, on consideration of the elements of the wrong, it appears that, as to matters of practice at least, there is material difference, and that the wrongs under consideration lie halfway between libel and slander and malicious prosecution; 384 and, in many respects, approach wrongs of fraud.385 Falsity of Statement.

In wrongs of this description, as in libel and slander, the words which constitute the offense must be set out exactly in the complaint or declaration,386 and special damages must be circumstantially alleged.387 In cases where character is at stake, the presumption is in favor of the party defamed; but there is no similar presumption in favor of a man's title, or the quality of his merchandise.388 Unless he shows falsehood, he shows no case to go to the jury. 389

make it actionable except in the case of slander of title." Clerk & L. Torts, 493, note a, classes Sheperd v. Wakeman, 1 Sid. 79, as such a case. Disparagement may be actionable as to copyright, patents, and the like. Dicks v. Brooks (1880) 15 Ch. Div. 22, 49 Law J. Ch. 812; Thorley's CattleFood Co. v. Massam (1880) 14 Ch. Div. 763; Hendriks v. Montagu, 17 Ch. Div. 638, 50 Law J. Ch. 456; Singer Manuf'g Co. v. Loog, 8 App. Cas. 15; Meyrose v. Adams, 12 Mo. App. 329; Andrew v. Deshler, 45 N. J. Law, 167. To inchoate rights under agreement: Benton v. Pratt, 2 Wend. 385; Rice v. Manley, 66 N. Y. 82. To diversion of custom by misrepresentation of rights: Marsh v. Billings, 7 Cush. 322; Bigelow, Lead. Cas. Torts, 59. Riding v. Smith, 1 Exch. Div. 91; Clerk & L. Torts, 493. 383 Abinger, C. B., in Gutsole v. Mathers, 1 Mees. & W. 495-500 (where defendant said that tulips of the plaintiff about to be sold at auction were stolen property).

384 Burtch v. Nickerson, 1 Am. Lead. Cas. 121.

And see

385 Pig. Torts, 260, 375. "It is a special variety of deceit, which differs from the ordinary type, in that third persons, not plaintiff himself, are induced by defendant's falsehood to act in a manner which caused plaintiff's damage." Pol. Torts, 260.

386 Gutsole v. Mathers, 1 Mees. & W. 495; Hill v. Ward, 13 Ala. 310. 387 Bailey v. Dean, 5 Barb. 297-300.

388 Burnett v. Tak, 45 Law T. 743.

389 Clerk & L. Torts, 494, citing Maule, J., in Pater v. Baker, 3 C. B., at page 869; Steward v. Young, L. R. 5 C. P. 122-127. Cf. Rowe v. Roach, 1

In this action truth may be given in evidence under the general issue. 390.

Malice.

While the authorities are agreed that malice is essential to the plaintiff's case, they are at variance as to whether malice in law is sufficient, or whether there must be malice in fact. The later opinions require the plaintiff to allege, and, as a necessary part of his case, to prove, that malice in fact existed,—that is, a desire on the defendant's part to injure the plaintiff, or to benefit himself or some third person at the plaintiff's expense.392 Certainly, where there is an occasion of privilege, the plaintiff will be nonsuited unless he shows malice in fact.393 As in malicious prosecution, so in the cases under consideration, malice and want of probable cause are intimately connected. Want of reasonable cause is only evidence from which the jury may, but is not bound to, infer malice.39* If what a person did or said was in pursuance of a bona fide claim or color of title which he was honestly asserting, and especially if he

Maule & S. 304. In an action for slander of title, where defendant sets up title in himself, the action becomes one to try title, in which the burden of proof is on defendant as in a petitory action. McConnell v. Ory, 46 La. Ann. 564, 15 South. 424. As to requirement that in slander of patents plaintiff must commence proceedings to establish validity of patents, see Rollins v. Hicks, L. R. 13 Eq. 355; Axmann v. Lund, L. R. 15 Eq. 330.

390 Kendall v. Stone, 2 Sandf. 269.

391 In Young v. Macrae, 3 Best & S. 264, it was held not actionable. And see Johnson v. Hitchcock, 15 Johns. 185. In Western Counties Manure Co. v. Lawes Manure Co., L. R. 9 Exch. 218, false statements as to inferiority of plaintiff's fertilizer, resulting in loss of customers, were held actionable, without proof of malice. And see Paull v. Halferty, 63 Pa. St. 46; Dicks v. Brooks, 15 Ch. Div. 39. In Wren v. Weild, L. R. 4 Q. B. 213, letters to infringement of defendant's patents by plaintiff were held actionable only when made mala fide. Steward v. Young, L. R. 5 C. P. 122. And see Gerard v. Dickenson, 4 Coke, 18; Dodge v. Colby, 37 Hun, 515; Walkley v. Bostwick, 49 Mich. 374, 13 N. W. 780; Andrew v. Deshler, 45 N. J. Law, 167.

392 Halsey v. Brotherhood, 19 Ch. Div. 391; Hatchard v. Mege, 18 Q. B. Div. 771.

393 Pater v. Baker, 3 C. B. 831; Pitt v. Donovan, 1 Maule & S. 639. see Steward v. Young, L. R. 5 C. P. 122.

And

394 Pitt v. Donovan, 1 Maule & S. 639; Maule, J., in Pater v. Baker, 3 C. B. 868; Wren v. Weild, L. R. 4 Q. B. 213.

was acting under advice of counsel, though his title proves not to have been perfect, he will not be liable for slander of title.395 "Whether a party acted maliciously depends upon his own motives, and on the view which the jury entertained of the mind of the party himself; and we cannot try what are the motives and feelings of particular men's minds by referring to the mind of some other person. Therefore, if we refer to a mind that is sensible and reasonable, and which does not judge under the same pressure as the mind of the person in question might do, and make that sensible and reasonable mind the standard by which to judge of the state of the mind of the person who is under that pressure, we shall be referring to an improper rule to judge by. The question is, not what judgment a sensible and reasonable man would have formed in this case, but whether the defendant did or did not entertain the opinion he communicated." " 396

Special Damages.

In order that the plaintiff may recover, he must both allege and show, not merely damage, but special pecuniary damage, as the natural, proximate result of the disparagement.397 Therefore, the

395 Hill v. Ward, 13 Ala. 310; Bailey v. Dean, 5 Barb. 297.

And see

396 Pitt v. Donovan, 1 Maule & S. 639; Ames, Lead. Cas. 630. note 1, at page 631, citing Harriss v. Sneeden, 101 N. C. 273, 7 S. E. 801; Gerard v. Dickenson, 4 Coke, 18; Lovett v. Weller, 1 Rolle, 409; Smith v. Spooner, 3 Taunt. 246; Green v. Button, 2 Cromp., M. & R. 707; Pater v. Baker, 3 C. B. 831; Watson v. Reynolds, 1 Moody & M. 3; Carr v. Duckett, 5 Hurl. & N. 783; Atkins v. Perrin, 3 Fost. & F. 179; Brook v. Rawl, 4 Exch. 521; Burnett v. Tak, 45 Law T. 743; Steward v. Young, L. R. 5 C. P. 122; Wren v. Weild, L. R. 4 Q. B. 213; Hart v. Wall, L. R. 2 C. P. 146; Dicks v. Brooks, 15 Ch. Div. 39; Halsey v. Brotherhood, 19 Ch. Div. 389; Boulton v. Shields, 3 U. C. Q. B. 21; Hill v. Ward, 13 Ala. 310; McDaniel v. Baca, 2 Cal. 326; Thompson v. White, 70 Cal. 135, 11 Pac. 564; Reid v. McLendon, 44 Ga. 156; Van Tuyl v. Riner, 3 Ill. App. 556; Stark v. Chetwood, 5 Kan. 141; Gent v. Lynch, 23 Md. 58; Swan v. Tappan, 5 Cush. 104; Meyrose v. Adams, 12 Mo. App. 329; Andrew v. Deshler, 45 N. J. Law, 167; Dodge v. Colby, 37 Hun, 515; Hovey v. Rubber Co., 57 N. Y. 119; Kendall v. Stone, 5 N. Y. 14; Cornwell v. Parke, 52 Hun, 596, 5 N. Y. Supp. 905; Id., 123 N. Y. 657, 25 N. E. 955; McElwee v. Blackwell, 94 N. C. 261.

397 Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527; Cheesebro v. Powers, 78 Mich. 472, 44 N. W. 290; Duncan v. Griswold, 92 Ky. 546, 18 S. W. 354; Swan v. Tappan, 5 Cush. 104-111; Tobias v. Harland, 4 Wend. 537; Collins