the business which he was carrying on was the plaintiff's business, or business of which the plaintiff had a special patronage, and (3) that the public were deceived thereby.1 For example: The defendant sells a medicine labelled 'Dr. Johnson's ointment;' the label being one which the plaintiff had previously used, and was still using when the defendant began to make use of the same. The plaintiff cannot recover without showing that the defendant has used the label for the purpose of indicating that the medicine has been prepared by the plaintiff. Again: The plaintiff Sykes is a maker of powder-flasks and shot-belts, upon which he has placed the words 'Sykes Patent.' There is no valid patent upon them, in fact, as has been decided by the courts; but the maker has continued to use the words upon the goods to designate them as of his own making. The defendant, whose name is also Sykes, makes similar goods, and puts upon them the same words, with a stamp closely resembling that of the plaintiff, so as to sell the goods as and for' the plaintiff's goods. This is a breach of duty. Again: The defendant has the words Revere House' painted upon coaches which he uses to carry passengers from the railroad station to a hotel of the name. By contract with the proprietor of

1 Sykes v. Sykes, 3 B. & C. 541; Cases, 55; Rodgers v. Nowill, 5 C. B. 109; Morison v. Salmon, Man. & G. 385; Crawshay v. Thompson, 4 Man. & G. 357, 379, 383. See 1 Bigelow, Fraud, 560, 565. In a proceeding for injunction it is not necessary, even in these cases of quasi-trademark, to prove the defendant's knowledge or intent to deceive. Simple priority of use of the mark is enough. See Millington v. Fox, 3 Mylne & C. 338; Singer Machine Co. v. Wilson, 3 App. Cas. 376; Reddaway v. Bentham Hempspinning Co., 1892, 2 Q. B. 639, 644, 646. The subject of trademarks is being gradually assimilated to the law of property, and actions for deceit are apparently becom ing infrequent under the influence of a better right. Post, p. 261.

2 Singleton v. Bolton, 3 Doug. 293. This supposes, of course, that the medicine was not patented.

8 Sykes v. Sykes, supra.

the hotel, the plaintiff has the exclusive right to represent that he has the patronage of the hotel. The defendant commits no breach of duty to the plaintiff, unless he so makes use of the designation upon his coaches as to indicate that the proprietor of the hotel has granted to him such a right of patronage.1

Slander of title originally was the name of an action for false and disparaging statements in regard to the plaintiff's title to land; but in recent times the action and name have been extended to false and disparaging statements in regard to property of every kind, and that too whether the statements relate to title or to quality.2

The only real connection the action has with actions for slander (or libel) is in the name the action bears and in the structure of the declaration, which in following the declaration in slander has followed a false and misleading analogy. The plaintiff in actions at law for slander of title has to prove that the statements are false, that they were made with actual malice, and that they have been followed by damage. None of these things is required in actions for slander, as will be seen; the requirement of them all shows the affinity of the action with the action for deceit. But slander of title may perhaps be more correctly described by saying that it marks the transition from fraud to malice.

Malice in this wrong appears to mean the same thing as

1 Marsh v, Billings, 7 Cush. 322; s. c. L. C. Torts, 59.

2 Malachy v. Soper, 3 Bing. N. C. 371; Cases, 40 (title to personalty); Gott v. Pulsifer, 122 Mass. 235 (quality of personalty, Cardiff Giant').

8 Gott v. Pulsifer, 122 Mass. 235; Malachy v. Soper, 3 Bing. N. C. 371; Cases, 40; Pater v. Baker, 3 C. B. 831, 868; Kendall v. Stone, 2 Sandf. 269 (reversed on another point 5 N. Y. 14); Stark v. Chitwood, 5 Kans. 141; McDanield v. Baca, 2 Cal. 868. See Mellin v. White, 1894, Ch. 276, C. A.

malice in the class of cases next to be considered. Fraud is certainly a different thing, and yet it is probably true of this and of all other actions requiring proof of (actual) malice, that proof of fraud in the ordinary sense will satisfy the case.1 On the other hand, while malice may be proved by evidence short of fraud, it is clear that innocent misrepresentations are no more actionable in slander of title than in deceit. For example: the defendant, to the damage of the plaintiff, falsely states to a third person, with whom the plaintiff has made a contract for the sale of certain lands, that the plaintiff's title to those estates will hereafter, sooner or later, be contested. At the time they were sold by' the plaintiff's vendor, 'he was not in a state of soundness or competency.' The defendant makes this statement in good faith, believing it to be true. This is no breach of duty to the plaintiff.2

1 Malice here appears to be the doing of the act wilfully and intentionally, without just cause or excuse. See Ratcliffe v. Evans, 1892, 2 Q. B. 524, 527, Bowen, L. J. See also Mellin v. White, 1894, 3 Ch. 276, C. A.

2 Pitt v. Donovan, 1 Maule & S. 639.

Statement of the duty. A owes to B the duty to forbear to institute against him a prosecution, with malice and without reasonable and probable cause, for an offence falsely charged to have been committed by B.

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

2.

6

The word prosecution' includes such civil actions as may be the subject of a suit for malicious prosecution. 3. The term 'probable cause' is used for brevity, in this chapter for reasonable and probable cause.'1

In order to maintain an action for a malicious prosecution, three things are necessary, and possibly four, to wit, (1) the prosecution complained of must have terminated before the action for redress on account of it is begun; (2) it must have been instituted without probable cause; (3) it must have been instituted maliciously; (4) actual damage must be proved in cases in which the charge in itself would not be actionable, assuming that an action

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

for malicious prosecution is maintainable in such a case. And it devolves upon the plaintiff to prove all these facts.

Actions for malicious prosecution are brought, for the greater part, only for wrongful criminal prosecutions. For a civil suit instituted of malice and without probable cause there is no redress,' it seems, except in a few cases; 2 and these appear, in the main, to be cases of actions involving charges of 'scandal to reputation or the possible loss of liberty,' 3 such as 'proceedings in bankruptcy against trader, or the analogous process of a petition to wind up a company,' and cases in which property has been attached maliciously and without probable cause, but professedly under attachment laws, or has been thus taken in replevin.5 But where there has been a wrongful arrest, there is ground for a suit for false imprisonment, though there may be none for malicious prosecution."

4

§ 2. OF THE TERMINATION OF THE PROSECUTION.

The action for a malicious prosecution is given for the preferring in court of a false charge, maliciously and without proper grounds. And, as it cannot be known

1 The rule in England is very clear. In the present day, and according to our present law, the bringing of an ordinary action, however maliciously, and however great the want of reasonable and probable cause, will not support a subsequent action for malicious prosecution.' Quartz Hill Mining Co. v. Eyre, 11 Q. B. Div. 674, 690, Bowen, L. J. But there are some exceptions, as in cases involving false imputations touching business reputation. See id. p. 691. Actions for malicious civil suits are more common in the United States. See Cooley, Torts, 217-220, 2d ed.

2 See however Closson v. Staples, 42 Vt. 209. Further see Bicknell v. Dorion, 16 Pick. 478, 488-490; Cardival v. Smith, 109 Mass. 158. 11 Q. B. Div. 691, Bowen, L. J.; Pollock, Torts, 279, 2d ed..

4 Pollock, 279; 11 Q. B. Div. 691.

5 Fortman v. Rottier, 8 Ohio St. 548. See O'Brien v. Barry, 106 Mass. 300; Johnson v. King, 64 Texas, 226. 6 Chapter vii.