To give instances. Any trader may say: "My goods are the best in the market; they are far superior to A.'s." And no action will lie for such words, even though they be written or spoken maliciously and cause special damage to A. But if he asserts without just cause that "A.'s food for infants contains large quantities of starch," or "There is opium in B.'s soothing syrup," when there is no starch or opium in either, and damage follows, both A. and B. have a good cause of action on the case. Moreover, as we have already seen (ante, p. 32), the defendant, while purporting to attack only the plaintiff's goods, may use words which defame the plaintiff personally or in the way of his trade, and so render himself liable to an ordinary action of libel or slander. Thus, if he said of a baker, "He always buys mildewed flour for the bread which he supplies to the workhouse," this would be a slander on the baker, as well as a disparagement of his goods, and for such words an action of slander would lie without proof of any special damage; if, however, actual damage could be shown, the baker would have in addition an action on the case. The action of slander would die with him the action on the case would survive to his executors. (Hatchard v. Mège, (1887) 18 Q. B. D. 771.) The three preceding paragraphs are an attempt to state the net result of the decisions on this point, which at first sight appear to conflict. The old authorities have been qualified to some extent by recent decisions. To briefly review the cases in their chronological order: in Harman v. Delany, (1731) 2 Str. 898, which was an action for a libel on a tradesman in the way of his trade, the Court of King's Bench expressed the opinion that it was not actionable for a man to advertise that he can make as good articles as any other person in the trade. Erans v. Harlow, (1844) 5 Q. B. 624, was argued on demurrer. The words are set out ante, p. 33; they related only to the plaintiff's goods. No special damage was alleged, and the Court held the * + Lindley, M.R., is in error in Hubbuck v. Wilkinson, (1899) 1 Q. B. at p. 92, in saying that special damage was alleged in this case. 66 declaration bad. Young v. Macrae, (1862) 3 B. & S. 264; 32 L. J. Q. B. 6, was also argued on demurrer. Special damage was alleged, nevertheless the Court held the declaration bad on the ground apparently that the falsity of the words was not alleged with sufficient precision. Cockburn, C.J., said (32 L. J. Q. B. at p. 8): "The defendant is alleged to have falsely and maliciously published a disparaging comparison between the oil manufactured by the plaintiffs and that which he was advertising; ... it is not averred that the defendant falsely represented that the oil of the plaintiffs had a reddish-brown tinge, was much thicker, and that it had a more disagreeable odour. If that had been falsely represented, and special damage had ensued, an action might have been maintained." In Western Counties Manure Co. v. Lawes Chemical Manure Co., (1874) L. R. 9 Ex. 218, which was also argued on demurrer, the words complained of were more than a comparative estimate of the plaintiffs' and the defendants' goods respectively. It was stated as a fact that the plaintiffs' guano 'appears to contain a considerable quantity of coprolites, and is altogether an article of low quality." Special damage was alleged, and it was held that the action lay. White v. Mellin, (1895) A. C. 154, was merely a case of a man puffing his own goods and expressing his opinion that they were better than his rival's. Lord Watson stated the law thus, in White v. Mellin, (1895) A. C. at p. 167: "Every extravagant phrase used by a tradesman in commendation of his own goods may be an implied disparagement of the goods of all others in the same trade; it may attract customers to him and diminish the business of others. who sell as good and even better articles at the same price; but this is a disparagement of which the law takes no cognizance." Similarly, in Hubbuck v. Wilkinson, (1899) 1 Q. B. 86, the Court was of opinion that the defendants' circular, when attentively read, came to no more than a statement that the defendants' white zinc was equal to and, indeed, somewhat better than the plaintiffs'. "Even if each particular charge of falsehood is established, it will only come to this-that it is untrue that the defendants' paint is better than or equal to that of the plaintiffs', for which no action lies. The particular reasons for making that statement are immaterial if the statement itself is not actionable. . . . For a person in trade to puff his own wares and to proclaim their superiority over those of his rivals is not actionable. . . . But in Young v. Macrae it was pointed out that there were different ways of disparaging a man's goods-that some false statements about them might be actionable if special damage could be proved, and Western Counties Manure Co. v. Lawes Chemical Manure Co. was decided on this ground. But in Young v. Macrae it was also pointed out that, if the only false statement complained of is that the defendant's goods are better than the plaintiff's, such a statement is not actionable, even if the plaintiff is damnified by it." (Per Lindley, M.R., (1899) 1 Q. B. at pp. 92, 93.) It is clear, then, that the general rule laid down by Bramwell, B., in Western Counties Manure Co. v. Lawes Chemical Manure Co., that "an untrue statement, disparaging a man's goods, published without lawful occasion, and causing him special damage, is actionable," is stated too widely. But it is submitted that the decision on the facts alleged in that case is still good law. Illustrations. The defendant published an advertisement cautioning the public that the plaintiff's "self-acting tallow syphons or lubricators" wasted the tallow. No special damage was alleged. Held, that the words were not a libel on the plaintiff either generally or in the way of his trade, but were only a reflection upon the goods sold by him, which was not actionable without proof of special damage. Evans v. Harlow, 5 Q. B. 624; 13 L. J. Q. B. 120; Dav. & M. 507; 8 Jur. 571; ante, p. 33. The defendant published a certificate by a Dr. Muspratt, who had compared the plaintiffs' oil with the defendant's, and deemed it inferior to the defendant's. It was alleged that the certificate was false, and that divers customers of the plaintiffs after reading it had ceased to deal with the plaintiffs and gone over to the defendant. Held, that the plaintiffs' oil, even if inferior to the defendant's, might still be very good; and that the falsity was alleged too generally, and that therefore no action lay. It was consistent with the declaration that every word said about the plaintiffs' oil should be true, and the only falsehood the assertion that defendant's was superior to it, which would not be actionable. Young and others v. Macrae, 3 B. & S. 264; 32 L. J. Q. B. 6; 11 The defendants falsely and without lawful occasion published a detailed analysis of the plaintiffs' artificial manure and of their own, and stated that the plaintiffs' manure appeared to contain a considerable quantity of coprolites, and was altogether an article of low quality. Special damage having resulted, held, that the action lay. Western Counties Manure Co. v. Lawes Chemical Manure Co., L. R. 9 The plaintiffs manufactured and sold (to the defendant among others) a "Food for Infants." The defendant affixed to bottles of the plaintiffs' Food a label to the following effect:-" Notice. The public are recommended to try Dr. Vance's prepared food for infants and invalids, it being far more nutritious and healthful than any other preparation yet offered. Local agent, Timothy White, chemist, Portsmouth." Held, that for such disparagement no action lay. White v. Mellin, (1895) A. C. 154; 64 L. J. Ch. 308; 43 W. R. 353; 72 L. T. 334. The defendants printed and published a circular which purported to contain a copy of a report of a trial of plaintiffs' and defendants' white zinc, which ended with the words: "Judging the finished work, it is quite evident that W. H. & Co.'s zinc has a slight advantage over Hubbucks', but for all practical purposes they can be regarded as being in every respect equal." Held, that no action lay; although the plaintiffs alleged actual loss attributable to the defendants' circular. Hubbuck and Sons v. Wilkinson, (1899) 1 Q. B. 86; 68 L. J. Q. B. 34; 79 L. T. 429. But see Alcott v. Millar's Karri & Jarrah Forests, Ltd., and another, (1904) 21 Times L. R. 30. The doctrine that a man may puff his own goods, even by publishing words which he knows to be false, has been carried very far in equity. Only two persons, A. and B., obtained medals for pickles at the International Exhibition of 1862. Nevertheless, a third manufacturer of pickles, C., dishonestly proceeded to sell his goods labelled "Prize Medal, 1862." Yet the Court of Chancery refused to interfere. Batty v. Hill, (1863) 1 H. & M. 264. The Legislature afterwards came to the relief of the plaintiff in this case, and passed an Act prohibiting any such misrepresentation in the future as to prize medals awarded at the Exhibitions of 1851 and 1862. The Exhibition Medals Act, 1863 (26 & 27 Vict. c. 119). A prize was offered for the best sewing machine. Both plaintiff and defendant competed, and the plaintiff won it. Then the defendant falsely advertised that he had won it. The Supreme Court of Georgia refused to grant an injunction on the following ground: The defendant is “ publishing untruths-lies, if you will-calculated and intended to help himself and damage the complainant. To say that he may be enjoined from doing this, is to say that the writ of injunction may issue to restrain a libel or to stop slander"; which in those days it could not. It is submitted that this would now be held actionable, if plaintiff could show a loss of business in consequence of the defendant's advertisement. Singer Manufacturing Co. v. Domestic Sewing Machine Co., (1873) 49 Georgia Rep. 70; 15 Amer. Rep. 674. A. and B. each invented a system of hot-air treatment. B. issued a pamphlet in which he appropriated to his own system favourable notices which A.'s system had received in the Press, omitting all mention of the plaintiff's name. There was evidence that some of the plaintiff's patients were misled by these extracts, but no evidence of any actual damage. Held, by Stirling, J., that, in the absence of any attempt by the defendant to pass off his system as the plaintiff's, the Court ought not to interfere by way of interlocutory injunction. Tallerman v. Dowsing Radiant Heat Co., (1900) 1 Ch. 1; 68 L. J. Of course, if the words used by the defendant amount to an attempt to "pass off" his goods as the plaintiff's goods, an action will lie. Birmingham Vinegar Brewery Co. v. Powell, (1897) A. C. 710; 66 L. J. Ch. 763; 76 L. T. 792. Now assuming that the words are reasonably capable of being construed as an actionable disparagement of the plaintiffs' goods, "to support such an action it is necessary for the plaintiffs to prove (i.) That the statements complained of were untrue; (ii.) That they were made maliciously, i.e. without just cause or excuse; (iii.) That the plaintiffs have suffered special damage thereby." (Per Lord Davey, in Royal Baking Powder Co. v. Wright, Crossley & Co., (1900) 18 Rep. Pat. Cas. at p. 99.) Whether the words are reasonably capable of being an actionable disparagement, is a question for the judge: all other questions are for the jury. If the words are incapable of being an actionable disparagement, the judge should stop the case; or the Court will, on application under Order XXV. r. 4, strike out the Statement of Claim. (Hubbuck v. Wilkinson, (1899) 1 Q. B. 86.) It is somewhat difficult to define the precise degree of malice necessary to sustain the action. In Western Counties, dc., v. Lawes, &c., the Court held that it was sufficient if the words were published without lawful occasion. And now, anything will be evidence of malice which may reasonably lead the jury to infer that the words were published without " justification" or without " or without "just cause or excuse." (Lumley v. Gye, (1853) 2 E. & B. 216; 22 L. J. Q. B. 463 ; Quinn v. Leathem, (1901) A. C. 495; Glamorgan Coal Co. v. South Wales, dc., (1903) 2 K. B. 545; Giblan v. National Amalgamated, &c., (1903) 2 K. B. 600.) If, however, the words were published only on a privileged occasion, the plaintiff must, of course, prove actual malice. (Wren v. Weild, (1869) L. R. 4 Q. B. at p. 737; Halsey v. Brotherhood, (1881) 19 Ch. D. at p. 388.) The mere fact that the plaintiff and the defendant are rivals |