McDonald v. Green

176 Mass. 113 | Mass. | 1900

Barker, J.

1. The defendant’s motion to dismiss the action should have been allowed. The action is in tort, and the substantive wrong charged is that the defendant falsely and maliciously and without justifiable cause began to foreclose a mortgage which he held upon the plaintiff’s land, there having been no breach of the terms or conditions of the mortgage, and published in a newspaper a notice of the foreclosure sale, falsely alleging that the sale was for breach of the condition of the mortgage, and that in consequence of this unlawful act the plaintiff was injured. The alleged maliciously made false statement as to the plaintiff’s property was an actionable wrong if by reason .of it the plaintiff sustained special damage. Swan v. Tappan, 5 Cush. 104. Gott v. Pulsifer, 122 Mass. 235. We have no doubt that such an action is an action of tort for slander within the meaning of Pub. Sts. c. 183, § 1. There is no reason for limiting the words there used, “ actions of tort . . . for slander either by writing or speaking,” to actions for the writing or speaking of words defamatory of persons only. . Our statute divides all personal actions into three classes: contract, tort, and replevin. Pub. Sts. c. 167, § 1. When actions for slander, or for publishing a libel, are treated of in the .subsequent provisions of the same chapter, as in §§ 79, 80, those provisions are applicable to actions of the class commonly known as actions for slander of title, as to actions for defamation of persons. The provision of Pub. Sts. c. 183, § 1, forbidding actions of tort for slander to be commenced by trustee process, is in the same part of the statutes with Pub. Sts. c. 167, and includes all actions of tort in which the wrong complained of is the writing or speaking of words designed to injure the defendant in his property, as well as those defamatory of his person or reputation. All such actions are well known and well described as actions of tort for slander. See Odgers, Libel & Slander, (1st Am. ed.) 137-139.

As the action must be dismissed, we do not consider the question of

Order overruling motion to dismiss reversed and motion to dismiss allowed.