is the publisher of the "A. B. C. Pathfinder and Dial Express List.” The bill contains the following averments: "The publication is the only one of its kind issued or in circulation in Boston. The publication is in a form intended and calculated to create in the minds of the public the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. It has created and does create such belief in the minds of the public. This belief is the main, if not the sole, reason inducing purchases of the publication by the public. This belief has enabled the corporation to obtain a large circulation among the business houses and general public in Boston and vicinity. The above publication is usually and frequently consulted by persons having occasion to employ a local express. It has come to be accepted by the general public as the recognized directory of local express companies." There are other averments showing some of the particulars of the contents of the publication, which tend to support the above general averments, and particularly the averment that it is intended and calculated to create in the minds of the public the belief that it contains the names of all the reputable local expresses doing business in Boston and vicinity. A copy of the publication is made a part of the bill, and it tends to confirm and strengthen this averment. It is averred that "the plaintiff and each of his subtenants is conducting his express business in a lawful and proper manner, and to the convenience and satisfaction of his patrons"-in substance, that these express companies are reputable — and that "no good reason exists why the defendant corporation should discriminate against them or any of them, or should exclude reference to them or any of them from its publication." It is averred that the defendant corporation has omitted any reference in its publication to the business of the plaintiff or of his subtenants, and that it is about to bring out another issue of the same general publication, and has been requested to include the plaintiff's office in the list of express offices, and to make reference to the express business of the plaintiff and his subtenants, and has refused and still refuses so to do. The plaintiff also alleges that the defendant corporation refuses to assign any reason for its objectionable conduct.

It is alleged that the other two defendants control a majority of the general local express companies whose names appear in the publication, that they have an acquired and dominating influence in this business in Boston, and are seeking to obtain an absolute monopoly of this kind of business, to the exclusion of the plaintiff. He avers that they have conspired together to prevent the publication by the defendant corporation of any reference to the business of the plaintiff and his subtenants, and by threats and false statements have induced the defendant corporation to leave the plaintiff and his business without mention in the publication.

The case comes before us on a demurrer, which, for the purposes of the hearing, admits the truth of all the averments of the bill.

The ground on which the plaintiff seeks relief is not that he has a right to compel the defendants or either of them to do anything for his benefit, but that he has a right to have them refrain from intentionally doing anything, without legal justification, to his injury. The defendant corporation professes to give the public a full list of all the reputable express companies doing business in Boston. While it does not say in express words that the list is complete, that is the meaning which the publication is intended to convey and does convey. Its list is false and misleading, to the plaintiff's injury. One purpose of the list is to show the public where they can go to get their express business done. Another purpose is to give the express companies named in the list the benefit of having their names and the nature of their business brought before the public who have such business to be done. The direct effect of the false statement is to point those who want the services of an express company to other companies, and to divert them from the plaintiff. They are told, in substance, that there is no such person as the plaintiff, and no such company as the Northern Express Company, engaged in this kind of business. The averment of the plaintiff that he is greatly injured in this way is no more than a statement of the natural result of publishing a directory of express companies with his name and the name of his company left out of it. An intentional act of this kind, without excuse, is a violation of his legal rights. It is the publication of a falsehood concerning him, the direct and natural effect of which is to injure him in his business. The public is misled by the intentional publication of an incorrect list. But the gist of the plaintiff's action is the wrong done him by intentionally turning away from him those who otherwise would do business with him. He is entitled to a remedy for this wrong.

It is peculiarly a case for equitable relief. The wrong is a continuing, and in a sense an irreparable, one. The extent of the injury cannot be measured accurately in an attempt to assess damages.

The injury is to property, and it is not technically a libel upon the plaintiff. The rule that a court of equity will not enjoin the mere commission of a crime does not apply. The conduct complained of works a continuing and permanent injury to the plaintiff's property. Upon proof of the facts set out in the bill, the plaintiff will be entitled to an injunction to protect him from the wrongful publication. . . .1

1 [PROBLEMS:

"We are looking into the doings of this tribe of attorneys. It looks very much as though they put their heads together, and each of them get as much out of the estate as possible. An outside attorney told me a few days ago that M. had put a lien on the John Zeller estate for $1,250 on account of the heirs you represent, and $500 extra to fight the church, making $1,750 for one and the same thing. Outrage!" Was this libellous? (1898, Mosnat v. Snyder, 105 Ia. 500, 75 N. W. 356.)

"He is a dangerous, able, and seditious agitator." Was this libellous? (1895, Wilkes v. Shields, 62 Minn. 426, 64 N. W. 921.)

"We feel that the firm of B. are withholding money collected from and belong

(3) Publication. Innuendo. Hearer's Understanding of Words

159. PRICE v. JENKINS

EXCHEQUER CHAMBER. 1591

Cro. Eliz. 865

ACTION for words. And declares, that the defendant spake these words in Welsh (reciting them particularly), signifying haec Anglicana verba, "Thou hast murdered thy wife." After verdict, and judgment for the plaintiff, error was brought and assigned in hoc, that it is not averred that the words were spoken in the company of Welshmen, or of such who understood the Welsh tongue; but it is alleged that they were spoken in praesentia et auditu quamplurimorum subditorum dominae reginae. And the action was brought in the county of Monmouth, ing to this company, and that the criminal laws provide for their action." Is this libellous? (1899, Merchants' Ins. Co. v. Buckner, C. C. A., 98 Fed. 222.) Is it libellous to print of a white man that he is a colored man? (1905, Flood v. News & C. Co., 71 S. C. 112, 50 S. E. 637.)

Is it libellous for one newspaper to term another the "Evening Ananias"? (1894, Australian Newspaper Co. v. Bennett, 1894, App. Cas. 284.)

"He is low enough. You can't get him down any lower. You can't spoil a rotten egg." Was this libellous? (1895, Pfitzinger v. Dubs, C. C. A., 64 Fed. 696.)

The plaintiff is arrested on a charge of crime, but has not been convicted nor tried; is it a libel to place the photograph in the "rogue's gallery," i. e., a book of photographs of ex-convicts and other suspicious persons with whose faces all detective officers are required to be familiar? (1909, Downs v. Swann, 111 Md. -, 73 Atl. 653.)

The plaintiff, a physician, belonged to a medical society which forbade its members to advertise their cures, this being contrary to medical ethics. A committee reported resolutions to this effect, and the plaintiff for the committee gave to the defendant newspaper a copy of the resolutions. A few days later, the defendant, without consent of the plaintiff, published an account of a great cure by the plaintiff. Was this libellous? (1906, Martin v. N. O. Picayune, 115 La. 979, 40 So. 376.)

The defendant published, of the plaintiff's wife, who assisted the plaintiff in carrying on his business as a grocer and draper, that she had committed adultery. The plaintiff could prove a falling off in the profits of his business since the publication, but could not prove the loss of any specific customers. Has he an action? (1876, Riding v. Smith, L. R. 1 Ex. D. 91.)

The plaintiff alleged that the defendant had published in a newspaper the false statement that the plaintiff's title as a shareholder in a certain mine was defective and that the working of the mine had therefore been stopped by legal proceedings; and in consequence of this defamation his shares had depreciated in market value and he had been prevented from selling them. Was this actionable? (1836, Malachy v. Soper, 3 Bing. N. C. 371.)

The defendant advertised a foreclosure of a mortgage, known to him to be fraudulent, held by him upon the plaintiff's premises, in consequence of which the plaintiff's tenants held back the rent then payable. Has he an action? (1898, Gore v. Condon, — Vt. -, 39 Atl. 1042.)

The plaintiff was a physician of the regular school, having an office in the

which was once parcel of Wales, but was now an English county. And all the Justices and Barons held, that for this cause it was erroneous; for it shall not be intended that any there understood the said tongue, unless it had been shewn; and then it was not any slander, no more than if one spake slanderous words in French or Italian; an action lies not, unless it be averred that some there present understood those languages; as it was held in the case of John v. Daux. But because the damages were found to 50l. and if the plaintiff should begin de novo, he might not have peradventure so great damages, they moved him to accept of 10l. and to make an end without further proceedings: and so it was done, and no judgment entered.

160. HICK'S CASE

STAR CHAMBER. 1619
Hob. 216

ONE sent a letter, closed and sealed up, to Sir Baptist Hicks, which was so delivered to his hands, containing many despiteful scandals delivered ironice, as saying, "You will not play the Jew nor the hypocrite," and in that sort taunting him, for an almshouse and certain good works that he had done; all which he charged him to do for vainglory. Whereupon Sir Baptist Hicks sued him in the Star-Chamber. And now upon hearing it was resolved, that though it were not proved that the defendant had any way published it, yet the Court would hold plea of it, and so did, and fined the defendant, and sentenced him to wear papers, and to make his submission to Sir Baptist Hicks in Cheapside. Yet an action of the case will not lie in that case, for want of publication; but the King and Commonwealth are interested in it, because it is a provocation to a challenge, and breach of peace.

building with numerous quacks, etc. The defendant sent the letter set forth in the case of Lathrop v. Sundberg, supra, No. 154. Has the plaintiff an action? (1909, Dunlap v. Sundberg, - Wash. 104 Pac. 830.)

ESSAYS:

Frank Carr, "The English Law of Defamation; its History.” (L. Q. R., XVIII, 255, 388.)

H. Campbell Black, "Libel of the Dead." (A. L. R., XXXIII, 578.)
NOTES:

"Effigy, libel by." (H. L. R., VII, 492.)

"Photograph of plaintiff in connection with libellous article."

(H. L. R.,

XVII, 359.)

"Acts and words actionable: Defamation of plaintiff's sister." (H. L. R.,

XXI, 448.)

"Libel by publication of picture." (M. L. R., II, 496.)

"White man published as 'colored." (M. L. R., III, 669.)

"Slander of title: Disparaging quality of property; special damage." (C. L. R., VII, 628.)]

161. PELZER v. BENISH1

SUPREME COURT OF WISCONSIN. 1886

67 Wis. 291, 30 N. W. 366

APPEAL from Circuit Court, Jackson County.

Action for slander. Demurrer to complaint. Overruled. Defendant appeals.

Joseph Roy, for respondent, Pelzer.

J. C. Gores and T. F. Frawley, for appellants, Benish and others. TAYLOR, J. This is an action for slander. After the preliminary allegations, the complaint alleges the slanderous words spoken as follows: "He [the plaintiff meaning] is a swindler. He [the plaintiff meaning] has swindled everybody. He, [the plaintiff meaning] and speaking in the German language, is a 'spitzbube,' meaning, and the persons so hearing so understanding, that the plaintiff was a thief and a robber. That the language so spoken by the defendant was the German language, and the persons so present and hearing the same all understood the German language, and so understood the words spoken of and concerning the plaintiff by the said defendant as imputing the crimes aforesaid."

The defendants are husband and wife, and the words are alleged to have been spoken by the wife. To this complaint the defendants demurred on the ground that it does not state facts sufficient to constitute a cause of action. The Circuit Court overruled the demurrer, and from the order overruling such demurrer the defendants appealed to this Court.

The learned counsel for the appellant insist that the demurrer should have been sustained upon two grounds- -First, because the complaint alleges that the slanderous words were all spoken in the German language, and the slanderous words in the complaint are all set out in the English language, with the exception of the one word, "spitzbube"; and, second, because the complaint does not give a translation of that German word in the English language. The first objection to the complaint was held good by this Court as long ago as 1850 (see Zeig v. Ort, 3 Pin. 30-32), and as late as 1884 (see Simonsen v. Herold Co., 61 Wis. 626; s. c. 21 N. W. Rep. 799), and in this last case, the case of Zeig v. Ort is cited to sustain the objection. The allegations of the complaint showing that the slanderous words were spoken in the German language, it was clearly the duty of the pleader to set out the words in that language. It is also equally clear that, after having set out the slanderous words in the German language, if they were in fact spoken in such language, such words should have been followed by a translation into the English language, and an allegation of the correctness of such translation. See Simonsen v. Herold Co., supra. In this com'[For examples of an innuendo in a declaration, see Nos, 141, 143, ante.]