an appa The hardest case that can be put for the principal, and by Reason of no means an impossible one, is that the principal authorizes rently a specific statement which he believes to be true, and hard law. which at the time of giving the authority is true; before the agent has executed his authority the facts are materially changed to the knowledge of the agent, but unknown to the principal; the agent conceals this from the principal, and makes the statement as originally authorized. But the case is no harder than that of a manufacturer or carrier who finds himself exposed to heavy damages at the suit of an utter stranger by reason of the negligence of a servant, although he has used all diligence in choosing his servants and providing for the careful direction of their work. The necessary and sufficient condition of the master's responsibility is that the act or default of the servant or agent belonged to the class of acts which he was put in the master's place to do, and was committed for the master's And purposes. 66 no sensible distinction can be drawn between the case of fraud and the case of any other wrong." The authority of Barwick v. English Joint Stock Bank (e) is believed, notwithstanding the doubts still sometimes expressed, to be conclusive. II.-Slander of Title. title. The wrong called Slander of Title is in truth a special Slander of variety of deceit, which differs from the ordinary type in that third persons, not the plaintiff himself, are induced actio, dubitatur. Et puto ex suo quidem dolo non posse dari, quid enim municipes dolo facere possunt? Sed si quid ad eos pervenit ex dolo eorum qui res eorum administrant, puto dandam. The Roman lawyers adhered more closely to the original conception P. of moral fraud as the ground of (e) L. R. 2 Ex. 259, 265. T Recent extensions of the principle. by the defendant's falsehood to act in a manner causing damage to the plaintiff. Notwithstanding the current name, an action for this cause is not like an action for ordinary defamation; it is "an action on the case for special damage sustained by reason of the speaking or publication of the slander of the plaintiff's title " (ƒ). Also the wrong is a malicious one in the only proper sense of the word, that is, absence of good faith is an essential condition of liability (g); or actual malice, no less than special damage, is of the gist of the action. Formerly it This kind of action is not frequent. appears to have been applied only to statements in disparagement of the plaintiff's title to real property. It is now understood that the same reason applies to the protection of title to chattels, and of exclusive interests analogous to property, though not property in the strict sense, like patent rights and copyright. But an assertion of title made by way of self-defence or warning in any of these matters is not actionable, though the claim be mistaken, if it is made in good faith (h). In America the law has been extended to the protection of inchoate interests under an agreement. If A. has agreed to sell certain chattels to B., and C. by sending to A. a false telegram in the name of B., or by other wilfully false representation, induces A. to believe that B. does not want the goods, and to sell to C. instead, B. has an action against C. for the resulting (f) Tindal C. J., Malachy v. Soper (1836) 3 Bing. N. C. 371; Bigelow L. C. 42, 52. (g) Halsey v. Brotherhood (1881) 19 Ch. Div. 386, 51 L. J. Ch. 233, confirming previous authorities. (h) Wren v. Weild (1869) L. R. 4 Q. B. 730, 38 L. J. Q. B. 327; Halsey v. Brotherhood, supra (patent; in Wren v. Weild the action is said to be of a new kind, but sustainable with proof of malice); Steward v. Young (1870) L. R. 5 C. P. 122, 39 L. J. C. P. 85 (title to goods); Dicks v. Brooks (1880) 15 Ch. D. 22, 49 L. J. Ch. 812 (copyright in design), see 19 Ch. D. 391. loss to him, and it is held to make no difference that the original agreement was not enforceable for want of satisfying the Statute of Frauds (¿). A disparaging statement concerning a man's title to use an invention, design, or trade name, or his conduct in the matter of a contract, may amount to a libel or slander on him in the way of his business: in other words the special wrong of slander of title may be included in defamation, but it is evidently better for the plaintiff to rely on the general law of defamation if he can, as thus he escapes the troublesome burden of proving malice (j). It has been held in Massachusetts that if A. has exclusive privileges under a contract with B., and X. by purposely misleading statements or signs induces the public to believe that X. has the same rights, and thereby diverts custom from A., X. is liable to an action at the suit of A. (). In that case the defendants, who were coach owners, used the name of a hotel on their coaches and the drivers' caps, so as to suggest that they were authorized and employed by the hotelkeeper to ply between the hotel and the railway station; and there was some evidence of express statements by the defendants' servants that their coach was "the regular coach." The plaintiffs were the coach owners in fact authorized and employed by the hotel. The Court said that the defendants were free to compete with the plaintiffs for the carriage of passengers and goods to that hotel, and to advertise their intention of so doing in any honest way; but they must not falsely hold themselves out as having the patronage of the hotel, and there was evidence on which a jury might well find such holding (i) Benton v. Pratt (1829) 2 Wend. 385; Rice v. Manley (1876) 66 N. Y. (21 Sickels) 82. (j) See Thorley's Cattle Food Co. v. Massam (1879) 14 Ch. Div. 763; Dicks v. Brooks, last note but one. (k) Marsh v. Billings (1851) 7 Cush. 322, and Bigelow L. C. 59. Trade marks and trade names. out as a fact. The case forms, by the nature of its facts, a somewhat curious link between the general law of false representation and the special rules as to the infringement of rights to a trade mark or trade name (1). No English case much like it has been met with: its peculiarity is that no title to any property or to a defined legal right was in question. The hotelkeeper could not give a monopoly, but only a sort of preferential comity. But this is practically a valuable privilege in the nature of goodwill, and equally capable of being legally recognized and protected against fraudulent infringement. Goodwill in the accustomed sense does not need the same kind of protection, since it exists by virtue of some express contract which affords a more convenient remedy. Some years ago an attempt was made, by way of analogy to slander of title, to set up an exclusive right to the name of a house on behalf of the owner as against an adjacent owner. Such a right is not known to the law (m). The protection of trade marks and trade names was originally undertaken by the courts on the ground of preventing fraud (n). But the right to a trade mark, after being more and more assimilated to proprietary rights (0), has become a statutory franchise analogous to patent rights and copyright (p); and in case of a trade name, (1) The instructions given at the trial (Bigelow L. C. at p. 63) were held to have drawn too sharp a distinction, and to have laid down too narrow a measure of damages, and a new trial was ordered. It was also said that actual damage need not be proved, sed qu. (m) Day v. Brownrigg (1878) (reversing Malins V.-C.) 10 Ch. Div. 294, 48 L. J. Ch. 173. the (2) See per Lord Blackburn, 8 App. Ca. at p. 29; Lord Westbury, L. R. 5 H. L. at p. 522; Mellish L. J., 2 Ch. D. at p. 453. (0) Singer Manufacturing Co. v. Wilson (1876) 2 Ch. D. 434, per Jessel M. R. at pp. 441-2; James L. J. at p. 451; Mellish L. J. at P. 454. (p) Patents, Designs, and Trade Marks Act, 1883, 46 & 47 Vict. c. 57. although the use of a similar name cannot be complained of unless it is shown to have a tendency to deceive customers, yet the tendency is enough; the plaintiff is not bound to prove any fraudulent intention or even negligence against the defendant (9). The wrong to be redressed is conceived no longer as a species of fraud, but as being to an incorporeal franchise what trespass is to the possession, or right to possession, of the corporeal subjects of property. We therefore do not pursue the topic here. III.-Malicious Prosecution and Abuse of Process. prosecu We have here one of the few cases in which proof of Malicious evil motive is required to complete an actionable wrong. tion. "In an action for malicious prosecution the plaintiff has to prove, first, that he was innocent and that his innocence was pronounced by the tribunal before which the accusation was made; secondly, that there was a want of reasonable and probable cause for the prosecution, or, as it may be otherwise stated, that the circumstances of the case were such as to be in the eyes of the judge inconsistent with the existence of reasonable and probable cause (1); and, lastly, that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice" (s). And the plaintiff's case fails if his proof fails at any one of these points. So the law has been defined by a recent (9) Hendriks v. Montagu (1881) 17 Ch. Div. 638, 50 L. J. Ch. 456; Singer Manufacturing Co. v. Loog (1882) 8 App. Ca. 15. (r) The facts have to be found by the jury, but the inference that on those facts there was or was not reasonable and probable cause is not for the jury but for the Court: cp. the authorities on false (8) Bowen L. J., Abrath v. N. E. |