Odger's English Common Law

540 DEFAMATION.
not be one of defamation : it is " an action on the case " for
maliciously acting in such a way as to inflict loss on the
plaintiff. " To support such an action it is necessary for the
plaintiffs to prove that the statements complained of were
untrue ; that they were made maliciously, i.e., without just
cause or excuse ; and that the plaintiffs have suffered special
damage thereby." 1 " However they may be described
technically, they are actions for unlawfully causing damage.
The damage is the gist of the action." 2
Such an action differs from an ordinary action of libel and
slander in many important respects :
1. The words are not defamatory : they do not disparage
the plaintiff's moral character, his solvency, his professional
skill or his business capacity : they are merely an attack on
—
some thing, or on his title to some thing.
2. The words will be equally actionable whether written
or spoken. 3
3. Special damage must in all cases be proved to entitle
the plaintiff to recover ; he cannot even obtain an injunction,
it would seem, without proving that he has already sustained
some pecuniary loss. 4 Thus where the defendants published
in a newspaper that the plaintiff's house was haunted, the
Court of Appeal directed judgment to be entered for the
defendants upon the ground that there was no evidence of
special damage. 5
4. There is no presumption that the words are untrue;
the onus therefore lies on the plaintiff to prove them untrue.
5. Malice will not be presumed; the plaintiff therefore
must give some prima facie evidence that the defendant acted
maliciously, or at all events that he acted without lawful
occasion or reasonable cause.
6. A right of action for defamatory words dies with the
person defamed ; but an action in the nature of slander of
1 Per Lord Davey in Royal Baking Powder Co. v. Wright, Crossley fy Co. (1900),
18 Eep. Pat. Cas. at p. 99.
2 Per Lord Halsbury, L. C, ib. at p. 104 ; and see Concaris v. Duncan, [1909]
W. N. 51.
3 See Ratcliffe v. Evans, [1892] 2 Q. B. at p. 632.
* White t. Mellin, [1895] A. O. 154, 163, 167 ; Royal Baking Powder Co. v.
Wright, Crossley $ Co., supra.
5 Barrett v. Associated Newspapers (1907), 23 Times L. E. 666 ; and see Lyn*
v. Nicholls (1906), 23 Times L. B. 86.