not of itself unlawful, some decisions go to the length of holding that all picketing is unlawful. This difference of attitude as to the character of picketing naturally has affected its definitions. "It will not do to say that these pickets are thrown out for the purpose of peaceable argument and persuasion. They are intended to intimidate and coerce. As applied to cases of this character, the lexicographers thus define the word picket: 'A body of men belonging to a trades union sent to watch and annoy men working in a shop not belonging to the union, or against which a strike is in progress.' Cent. Dict.; Webst. Dict. The word had originally no such meaning. This definition is the result of what has been done under it, and the common application that has been made of it."" 88 As a general rule, the decision of the question whether picketing is lawful or unlawful depends on the circumstances of each case. Such circumstances are the size of the guard, the extent of their occupation of the street, and what they say and do. Taking every circumstance into account, if it appear that the purpose of the picketing is to interfere with those passing into or out of the works or premises, by other than mere persuasive means, it is illegal. If the design of the picketing is to see who can be the subject of persuasive inducements, such picketing is legal. The conduct of the pickets themselves may determine whether the picketing is legal or illegal.

49. Same subject-Picketing accompanied by unlawful means.-Where the picketing is carried on

88 Beck v. Railway Teamsters' Union, 118 Mich. 497, 77 N. W. 13.

particular judge."" This argument draws too strongly on the inherent tendency of picketing. 51. Slander of title.-So-called slander of title seems really to be a phase of the right of a man not to be interfered with in the transaction of his business. It has been placed by writers of treatises on torts in a variety of places, it being frequently connected with, or subjoined to, the discussion of libel and slander. It would seem properly to find its place under the tort of interference with trade or calling. Disparagement of title would be a more appropriate name, but slander of title has become a well-recognized phrase of the law. An action therefor is allowed to be maintained against a person who falsely and maliciously disparages another's title to property, whether real or personal, whereby special pecuniary loss or damage is suffered. The rule is so strict as to special damage, that it has to be distinctly and particularly set out in the complaint." While there are courts that maintain that it is necessary to establish express malice, the better opinion is that the malice regarded as a necessary ingredient in slander of title is to be taken in the same sense as in other torts of the kind now being considered.97

52. Same subject-Instances of slander of title.— Suits for slander of title are not of frequent occurrence; and a large proportion of the suits that are brought fail because special damage is not shown.

95 A. R. Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424, 83 N. E. 940.

96 Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527.

97 Manitoba Free Press Co. v. Nagy, 39 Can. Sup. Ct. 340.

99

Actions of this kind have been sustained in cases disparaging title in such instances as follows: in claiming a lease of real property, thereby preventing a lease to another;9s stating that ore on the plaintiff's land is nearly played out, thereby preventing a sale; " forbidding an auction sale of land on the ground that the party offering it has no right to sell it;1 alleging insanity of a former owner, thereby casting doubt on the plaintiff's title; alleging the illegality of a marriage, which would make a defect in the plaintiff's title; publishing in a newspaper a story that a house was haunted, whereby the value was depreciated, and a sale prevented.*

53. Disparagement of goods.-The action for disparagement of the goods of a merchant is, as Pollock, B., says, in the nature of an action of slander of title. It is often called trade libel. The leading case on the subject is perhaps the Western Counties Manure Company v. Lawes Chemical Manure Company,5 in which Bramwell, B., and Pollock, B., gave valuable opinions. The defendants had published false statements depreciating the value of plaintiffs' artificial fertilizers in comparison with the defendants' fertilizers. Bramwell, B., said: "It appears there was a statement published by the defendants of the plaintiffs' manufacture, which is comparatively disparaging of that manufacture, which is untrue so far as it

98 Gerrard v. Dickenson, Cro. Eliz. 196 (Eng.).

99 Paull v. Halferty, 63 Pa. 46.

1 Gent v. Lynch, 23 Md. 58.

2 Pitt v. Donovan, 1 Maule & S. 639 (Eng.).

3 Bold v. Bacon, Cro. Eliz. 346 (Eng.).

4 Manitoba Free Press Co. v. Nagy, 39 Can. Sup. Ct. 340.

5 L. R. 9 Exch. 218 (Eng.).

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disparages it, and which has been productive of special damage to the plaintiffs. * It seems to me that where a plaintiff says, 'You have without lawful cause made a false statement about my goods to their comparative disparagement, which false statement has caused me to lose customers,' an action is maintainable." Pollock, B., said: "It is alleged that the defendants were contriving and intending to injure the plaintiffs in their business, and that they falsely and maliciously printed and published the words in question. Therefore, we have

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it stated that without legal occasion, without any necessity, the defendants have used language of and concerning the plaintiffs' goods which not only are false, but are such as to injure the plaintiffs in their business, and special damage is alleged. When all these things occur it seems to me a good cause of action is disclosed."

54. Same subject-Cases not actionable.-On the other hand, if the interference with a merchant's business by the disparagement of his goods is justified, if there is occasion in the eye of the law for the statements, the ground of action is lacking. The most common justification is competition. A well considered case is that of White v. Mellin. The plaintiff in this case was the proprietor of Mellin's Food; the defendant was proprietor of Vance's Food. The defendant was in the habit, in retailing to the public Mellin's Food, to attach to the wrappers on Mellin's bottles the following label: "Notice. The public are recommended to try Dr. Vance's Food for 6 (1895) A. C. 154 (Eng.).

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infants and invalids, it being far more nutritious and healthful than any other preparation yet offered. [Then giving prices.]" Lord Herschell said: "I entertain very grave doubts whether any action could be maintained for an alleged disparagement of another's goods, merely on the allegation that the goods sold by the party who is alleged to have disparaged his competitor's goods are better either generally or in this or that particular respect than his competitor's are. Just consider what a door would be opened if this were permitted. That this sort of puffing advertisement is in use is notorious; and we see rival cures advertised for particular ailments. The court would then be bound to inquire, in an action brought, whether this ointment or this pill better cured the disease which it was alleged to cure-whether a particular article of food was in this respect or in that better than another. Indeed, the courts of law would be turned into a machinery for advertising rival productions by obtaining a judicial determination which of the two was the better."

BIBLIOGRAPHY.

Textbooks: Martin, The Modern Law of Labor Unions; Wyman, Control of the Market; Groat, Attitude of American Courts in Labor Cases.

Magazine Articles: Ames, How far an Act may be a Tort because of the Wrongful Motive of the Actor, 18 Harvard Law Review, 411; Sarat Chandra Basak, Principles of Liability for Interference with Trade, Calling, or Profession, 27 Law Quar. Rev., 290, 399, 28 Law Quar. Rev., 52; Stimson, The Law of Combined Action or Possession, 45 Am. Law Rev., 1; Wigmore, Interference with Social Relations, 21 Am. Law Rev., 766.