in such a way as was calculated to make their iron pass for the plaintiff's, and if they had executed such orders, they would have been liable to this action, no matter from what motive they might have acted. The declaration charges that the defendants sold "for their own lucre and gain the said bars of iron so by them prepared, &c., and marked as aforesaid, as and for and under the false colour or pretence that the same were respectively bars of iron of the genuine manufacture of the plaintiff." If they manufactured them to please their correspondents, still it was "for their own lucre [373] and gain ;" and Sykes v. Sykes (3 B. & C. 541, 5 D. & R. 292) is an authority that, if these correspondents sold the iron as the plaintiff's, the allegation in the declaration, that it was sold by the defendants, is supported. It was not necessary to shew that the defendants had been actuated by any dishonest or immoral intention; it was sufficient to maintain the action, if they knew that the mark they were using would deceive others, or was calculated so to do. In the allegation "which last-mentioned mark the said defendants then well knew, and intended, to be in imitation of, and similar in appearance to, the said mark so used by the plaintiffs," the words "and intended," might be omitted. So also might the words "in order to denote" in the following passage, which might be read thus: "and was by the said defendants so used, &c., denoting that such bars of iron so by them prepared, &c., were of the genuine manufacture of the plaintiff." The material allegation is, that the defendants knowingly sold the iron, as and for the plaintiff's. [Maule J. If that be left in, how can it be said that the direction was wrong? How could the defendants knowingly sell their iron, as the plaintiff's iron, without an intention to deceive the purchaser?] The defendants, possibly, may have originally used the stamp, not with the intention of deceiving any one, but only to gratify their correspondents; but still if they knew that their act would deceive customers, the plaintiff would have a right of action against them. It is contended on the other side, that the allegation, that the defendants' mark was used "in imitation" of the plaintiff's mark, includes an imputation of intention to deceive. But it does not do so more than the allegation in Polhill v. Walter (3 B. & Ad. 114), that the defendant "did falsely, fraudulently and deceitfully represent and [374] pretend that he was duly authorised" to accept the bill. Here, the defendants have knowingly done that which will deceive the plaintiff's customers; and the same erroneous impression is produced by their acts, as was created in Polhill v. Walter, by the defendant accepting the bill as by procuration, when he had no authority to do so. The two cases are parallel, supposing that here the defendants put a mark upon their iron so like the plaintiff's, that they knew it would deceive others: for that would shew that they intended to pass off their iron as his. [Coltman J. It might be evidence that they did so, but it would be no more.] Fraud in law would be sufficient. [Maule J. Would that be So, without an actual intention to deceive on their part?] The law will infer intention from the acts of a party. In Foster v. Charles (6 Bingh. 396. 4 Moo. & P. 61), Tindal C. J. said, "It has been urged that it is not sufficient to shew that a representation, on which a plaintiff has acted, was false within the knowledge of the defendant, and that damage has ensued to the plaintiff, but that the plaintiff must also shew the motive which actuated the defendant. I am not aware of any authority for such a position, nor that it can be material what the motive was. The law will infer an improper motive if what the defendant says is false within his own knowledge, and is the occasion of damage to the plaintiff." And when the case came before the court, after a second trial (7 Bingh. 105. 4 Moo. & P. 741), his lordship said "The question, therefore, is, whether if a party make representations which he knows to be false, and occasions injury thereby, he is not liable for the consequences of his falsehood? It would be most dangerous to hold that he is not. The confusion seems to have arisen from not distinguishing between what is [375] fraud in law, and the motives for actual fraud. It is fraud in law if a party makes representations which he knows to be false, and injury ensues, although the motive from which the representations proceeded may not have been bad; the person who makes such representations is responsible for the consequences." To apply that doctrine to the present case-the defendants have relied upon the honesty of their motives in using this mark; and that was left to the jury as a substantive defence; whereas it was really immaterial. [Cresswell J. In Foster v. Charles the defendant had made a false statement, knowing it to be false; and that could hardly be said to be done by him in the ordinary course of business.] In considering the two points left

to the jury in connection with the verdict, the plaintiff may assume that the resemblance proved was considered by them as calculated to deceive, and that the verdict was given upon that ground; and if so, what difference would there be between using the mark in question on the iron and putting W. C. on it or stamping upon it "This is Crawshay's iron?" [Maule J. Supposing the defendants had done so, would it not have been necessary to shew they had intended to sell it as the plaintiff's iron?] That, it is submitted, would not have been requisite, provided they did in fact sell their iron so stamped, knowing it would deceive others. There was an injury here to the plaintiff's right; and that, as was observed by Littledale J. in Blofield v. Payne (a), is sufficient to enable him to maintain the action. [Coltman J. You appear to admit that there must not only be a probability that deception would be practised, but that there must also be a probability that parties would be deceived; but was not that a question for the jury?] It was not properly left to them. The complaint on the part of the plaintiff is, [376] that, in the way the case was left to the jury, they must have considered that the motive with which the defendant acted was material; but Corbett v. Brown (8 Bingh. 33, 1 Moo. & Sc. 85, 1 Moo. & Rob. 108, 5 C. & P. 363) shews that is not so.

But whether the intention were material or not, it was important that the jury should have been directed to consider the effect of the notice given by the plaintiff, that the mark used by the defendants was calculated to deceive others. In cases for uttering base coin, the animus, with which the act is done, is most important. So, if a party charged with receiving stolen goods give a false account of the manner in which he became possessed of them, it is an important fact for the consideration of the jury. Here, the defendant Thompson has given a false account of the origin of the use of his mark. It is not easy to say, upon the facts left to the jury, what they have really found. [Cresswell J. Their attention was drawn to two questions. Suppose the twelve could not agree as to both questions, but six were agreed as to one, and six as to the other having been told that the decision of either question, according to the view which six of them in fact took of it, would authorise a verdict for the defendants -would not that support a general verdict?] That may be doubtful. There is no valid distinction between the use of two identical marks, and of two that are so like, that they may, by casual observers, be mistaken for each other. In Sykes v. Sykes the parties bore the same name, and the marks used by the defendant were not identical with those used by the plaintiff. So, in Blofield v. Payne. [Tindal C. J. There the defendant had taken the plaintiff's own wrappers to inclose his hones in.] Millington v. Fox (3 Myl. & Cr. 338) shews that an act not unlawful in [377] itself may become so by a notice that it is injurious to another. In Com. Dig. tit. Action upon the case for negligence (A. 5), it is said, "if a dog has once bit a man, and the owner, having notice, keeps him and lets him go about or lie at his door, action lies against him by a person bit, though it happened by his treading on the dog's toes;" and, again, “if a dog chases sheep, &c. without setting on, or notice before, to the master, an action does not lie." These authorities shew that if a party be affected with knowledge of the injurious tendency of certain acts, he is liable for their consequences. [Tindal C. J. That is so in a large class of cases as to nuisances.]

Assuming, then, that a resemblance has been found to exist between the defendants' mark and the plaintiff's, after notice of the resemblance, and of the injurious effects to the plaintiff by the defendants' using the mark, it was a wrong to the plaintiff that the defendants continued to use it.

COLTMAN J. I am of opinion that there has been no misdirection in this case. The declaration alleges in substance that the defendants made certain bars of iron bearing a mark in imitation of that, used by the plaintiff, and that they sold those bars, with the intention that they should pass in the market as bearing the plaintiff's mark. That allegation gives rise to the questions left by my lord to the jury. First, whether there was such a resemblance of the plaintiff's mark as was calculated to impose on any ordinary person; and secondly, if there was, whether the mark was used by the defendants with the intention to deceive. It appears to me that an intention to deceive is a necessary ingredient in this case. The intention is for the jury; and fraud must be made out by proof of an intention existing in the mind of the party, that the iron

(a) 4 B. & Adol. 410, 411, 1 Nev. & M. 353. Sed vide, Williams v. Mostyn, 4 M. & W. 145.

should pass as the iron of the plaintiff. If [378] there was such a similarity as might impose on ordinary persons, and it was shewn that the defendants were aware of the resemblance, and that it was calculated to mislead, the plaintiff would have been entitled to the verdict, for the intention to deceive would have been manifest. Evidence was

offered to the jury in support of the allegation which the plaintiff had to make out; but it appears to me that there was nothing in that evidence to shew the jury that the defendants had such a knowledge as alleged, or that the mark used by the defendants was so calculated to deceive as stated by the plaintiff.

There was a good deal of evidence to shew that persons might possibly be imposed upon by the mark used by the defendants; but there was none to shew that the defendants really believed that such would be the consequence of their using the mark in question. The plaintiff, indeed, told the defendants that such was the effect of their using the mark; but it does not appear that the defendants gave credence to the plaintiff's statements upon this point. On the contrary, the defendant Thompson represented and we have no reason-contrary to the finding of the jury-for saying it was not so, that the mark they used would pass for a Russian mark in the Turkish market. I think, therefore, that the two points were properly left to the jury by the Lord Chief Justice.

The next question is, was there any thing withdrawn from the consideration of the jury?—or, in other words, was there any miscarriage as to the manner in which the effect of the letters between the parties was left to the jury? It does not appear to me that it can be said, they were in any manner withdrawn from the jury. They were received in evidence, and fully commented upon by the plaintiff's counsel. The Lord Chief Justice reserved the question as to the effect of the notice contained in one of the letters for the con-[379]-sideration of the court; and it does not appear that he was asked by counsel to comment upon the letters to the jury. And it appears to me, that, as far as those letters had any bearing upon the case, they were fully in evidence, and that their general effect was left for the consideration of the jury. I do not think, therefore, that there is any fault to be found with my lord's direction.

With regard to the point of law that was reserved for the consideration of the court, as to the effect of the notice from the plaintiff to the defendants, I agree that my brother Shee, in this view of the case, was warranted in assuming that the jury found there was a resemblance between the mark used by the plaintiff and that adopted by the defendants; and that such resemblance was calculated to mislead ordinary persons-or, in other words, that the jury had found in the affirmative of the first question left to them by the Lord Chief Justice. Now, it is to be observed that this notice is somewhat equivocal in its terms. If it mean that the defendants must have known, that injury would necessarily result to the plaintiff from the continued use of the mark in question, that would give some colour to the argument which has been urged on the part of the plaintiff; but I think that is not so. A charge is made on the one side, which is not assented to on the other. And it amounts, therefore, to no more than a circumstance in the case upon which it was properly within the province of the jury to determine.

Upon the whole, I think the rule for a new trial should be discharged.

MAULE J. I also think this rule should be discharged. The first question is, whether there has been any misdirection. Now, I agree with what has been said at the bar, that, in order to see whether or [380] not there has been a misdirection, we must look at the pleadings and to the course of the evidence at the trial. The declaration alleges that the defendants fraudulently sold certain bars of iron "as and for, and under the false colour and pretence that the same were, respectively, bars of iron of the genuine manufacture of the plaintiff." I rather think that the gist of the action is the selling iron of the defendants' manufacture as and for iron of the plaintiff's manufacture; and that this allegation would have been sustained if it had been shewn that the defendants had sold their iron to their correspondents for the purpose of being retailed, as of the plaintiff's manufacture. But there is a preceding allegation in the declaration, that the plaintiff having used a certain mark in the manufacture of his iron, the defendants knowingly manufactured their iron with a mark, in imitation of that used by the plaintiff, in order to denote that such iron was manufactured by the plaintiff. Now, I think the declaration might have been good without that allegation; and if that be so, then the question arises, whether, that allegation having been inserted in the declaration, it would be necessary to prove it; and I think such

proof would be necessary; for it is an allegation of a particular mode of effecting the wrong complained of, and ought therefore to be proved as alleged. In an action on the case for diverting a watercourse, the plaintiff may declare generally; but if he state a particular mode of diversion, he is not at liberty to prove any other.

The first question that was left by my Lord Chief Justice was, in effect, whether the iron made by the defendants was made so as to imitate the iron of the plaintiff's; and I think that this was a material question, for the reasons just stated; and that, from the course of the evidence, that question would have been properly raised, even if the allegation as to the particular mode of [381] imitation had not been contained in the declaration. The plaintiff's case is, that the defendants made iron and marked it in such a manner, that it might be taken as the plaintiff's iron, and in that way represented it as the manufacture of the plaintiff; and this is, in effect, the same as an allegation that particular words had been used to convey such representation. The question whether the defendants sold their iron as the plaintiff's, depends upon whether the mark itself represented that the iron was manufactured by the plaintiff. The question for the jury was, whether such a representation was in fact made. It was left to them to say, whether the mark was used by the defendants with an intention to deceive. And that was a proper question to leave to them; for if the mark was not so used, there was no such representation on the part of the defendants as is alleged in the declaration, and consequently the declaration was not proved.

The next question submitted to the jury was, whether the defendants had sent the iron to Turkey for the purpose of supplanting the plaintiff in that market, or whether it was done in the ordinary course of business, and merely in the execution of foreign orders sent to their house; and his lordship added that, unless such a fraudulent intention existed, the defendants would not be liable, at least not before notice was given. Now, looking at the course of the evidence, that was equivalent to putting the question whether the defendants had sold their iron as and for the plaintiff's; because, if they had done so, it would have had a natural tendency to supplant the plaintiff in the market; and then the intention to defraud would follow as a matter of law, as well as of common sense. It is difficult to conceive what other object the defendants could have had in selling their iron as and for the plaintiff's, than that of supplanting the plaintiff.

[382] Several cases were cited for the purpose of shewing that it was not necessary to prove that the defendants intended to pass off their iron as the plaintiff's; but that, whatever may have been their motive in so doing, if they executed the orders of correspondents, knowing that by so executing them, their goods would be calculated to pass as the plaintiff's, the substantial part of the declaration was proved, and the defendants would be liable. The argument in effect amounts to this, if the defendants sold their iron as and for the plaintiff's, they are liable, whatever may have been their motive for so doing. And I agree that this may be so. But I think that the Lord Chief Justice did, in effect and substance, so direct the jury; for he told them to find for the plaintiff, if they considered that the defendants had sold their iron, as and for the plaintiff's. If a wrong be done by a false representation of a party who knows such representation to be false, the law will infer an intention to injure; that is the effect of Polhill v. Walter (3 B. & Ad. 114). The matter complained of in that case was, that the defendant had knowingly made a false representation as to his authority to accept a bill of exchange for another party; and that fact having been proved, and it also having been proved that the plaintiff had sustained an injury by reason of such false representation, the action was held to lie. So, in this case, if it had been proved that the defendants had, by any means, falsely and knowingly represented their iron as of the plaintiff's manufacture, the plaintiff would have been entitled to the verdict; but that, in effect, was the question that was left to the jury. So, in Foster v. Charles (6 Bingh. 396, 7 Id. 105, 4 Moo. & P. 61, 741), the wrong complained of was, that a false representation had been know-[383]-ingly made by the defendant as to the circumstances of a third party, whereby the plaintiff was induced to employ such party, and that an injury had resulted to the plaintiff therefrom; and these facts being proved, it was held that the action was maintainable without reference to the defendant's motives in making the statement. So here, the complaint is, that a false representation has been made by the defendants, whereby the plaintiff has suffered an injury; and the action will lie if that representation was made knowingly by the defendants; and that was the question left by my lord to the jury.

But another point is insisted upon, namely, that after the letters had been given in evidence, shewing a notice to the defendants that they were using a mark on their iron resembling the plaintiff's, the Lord Chief Justice was wrong in leaving the second question to the jury. It is argued that, supposing the defendants marked their iron in a way calculated to deceive other parties, although they had no intention of doing so, yet if they were told that such was the effect of using the mark, and they still continued to do so, they are liable to an action. But I cannot quite accede to that position. If a party is merely told that by continuing to do a certain thing he may deceive others, and he continues to do the thing without any intention to produce that effect, I do not think that an action will lie against him-at any rate, certainly not in this form of declaration. The effect of the decision in Millington v. Fox (3 Myl. & Cr. 338), is, that the Lord Chancellor thought the defendants would have been in the wrong if they had continued to use the plaintiff's marks after they had received notice from the plaintiffs. But why was this? because it was clearly [384] shewn, and was indeed admitted by the defendants, that the use of this mark would have been an injury to the plaintiffs; and therefore, if, after the notice, they had continued to use the mark, they must have known of the injury they were doing to the plaintiffs. But here the question is, whether the notice to the defendants was improperly excluded from the consideration of the jury; and it is contended that the first question left by my lord should have been the only one submitted to the jury. But it appears to me that the second question was properly left both upon the letters and upon the rest of the evidence. Nothing was withdrawn from the jury. If his lordship had been desired to read the letters to the jury, he would probably have done so; though I do not think he would have been bound to do so, provided they were not withdrawn from the jury.

CRESSWELL J. I quite concur in the opinion that this rule should be discharged. As to the question with regard to misdirection, it appears that two questions were left by my lord to the jury. The first was, whether there was such a close resemblance in the mark used by the defendants to that of the plaintiff as to be calculated to impose on the unwary, and injure the plaintiff's sale. Now it may be said that this perhaps was not a necessary ingredient in the proof to be given by the plaintiff. But it is to be observed, however, that there is a distinct allegation in the declaration, that the defendants "did wrongfully, knowingly and fraudulently stamp or mark the said bars of iron respectively with a certain stamp or mark, stamped or impressed on the said bars of iron respectively, in imitation of the plaintiff's said stamp or mark, and of a form, shape and appearance very much resembling the form, shape and appearance of the plaintiff's said stamp or mark, and which mark the defendants then well knew and intended to be in [385] imitation of, and similar in appearance to, the said mark so used by the plaintiff in that behalf as aforesaid, and was by the defendants so used and stamped or impressed on the said bars of iron respectively, in order to denote that such bars of iron so by them prepared, manufactured, made and marked as aforesaid, were respectively of the genuine manufacture of the said plaintiff, and were respectively bars of iron prepared, manufactured and made by the said plaintiff." Now, admitting that it was not necessary to prove the first allegation, still I think the direction to the jury was perfectly right; for there was nothing to support the declaration, and establish any representation by the defendants as to the iron being of the plaintiff's manufacture, but the evidence as to the similarity of the mark.

The other question left was, whether there had been any fraudulent intention on the part of the defendants to deceive customers by using this mark, or whether it was used innocently by the defendants in the course of the execution of orders without any intention to deceive; and I think it clear that the latter expression must have been understood as meaning without any fraudulent intention on the part of the defendants. This is in the nature of an action for deceit; and it is laid down in Com. Dig. tit. Action upon the case for a deceipt (F. 3), that "the declaration regularly ought to charge that the defendant was sciens of the matter by which he deceived; and that he did it falsò et fraudulenter." There is an early case in illustration of this principle, cited by Doderidge J. in Southern v. How (Poph. 143) to this effect, as stated in Popham (page 144): "An action upon the case was brought in the Common Pleas by a clothier, that, whereas he had gained great reputation for his making of his cloth, by [386] reason whereof he had great utterance, to his great benefit and profit; and that he used to set his mark to his cloth, whereby it should be known to be his