INDEX

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.