eyes open to the defect, he is remediless, for he was not deceived. Nay, further, if he had the full means of detecting the fraud and ascertaining the truth, and neglected to inform himself of it when he might easily have done so, or even if he placed a blind and wilful confidence in a representation which was not calculated to impose upon a man of ordinary prudence and circumspection, it seems that an action of deceit cannot be supported. For although the plaintiff in these cases may, in point of fact, have been deceived, yet it was a consequence of his own folly that he was so defrauded, and vigilantibus non dormientibus jura subveniunt." In Baily v. Merrell (a) a carrier brought case for deceit in representing to him that a load, to be carried by his horses, was about eight cwt., whereas the weight was twenty cwt., whereby two of his horses were killed: and, after verdict for the plaintiff, the judgment was arrested, because the carrier might have weighed the load himself. Lord Kenyon recognises this case in Pasley v. Freeman (b), though, under the particular circumstances of the latter case, it was held, by himself and the majority of the Court, that the action lay, because the plaintiff had no peculiar means of knowledge. But here the plaintiff had as good means of knowing the facts as the defendant. The registering of designs is regulated by stat. 5 & 6 Vict. c. 100. The plaintiff might have searched, for the purpose of ascertaining whether there was any such registration as the defendant asserted. And he must have known that there was no obligation to give up his name, on the part of the defendant. Further, it does not appear that the damage is the neces Queen's Bench. 1846. BARLEY V. WALFORD. Volume IX. 1846. BARLEY V. WALFORD. sary or natural result of what the defendant said to, the plaintiff. That is essential, as well in an action of this kind as in an action for words; Kelly v. Partington (a), Vernon v. Keys (b). Further, the declaration is defectively framed. The innuendo, as to the defendant's meaning, introduces new matter not arising upon the inducement: there should have been a colloquium, explaining the subject of the conversation: and the words used should be set out, instead of their supposed effect; Gutsole v. Mathers (c). [Coleridge J. How do we see that the words are not given?]. The representation is described in the third person. The declaration, without the innuendo, does not shew that the representation suggested that the copyright of the supposed registering parties still existed: there was no presumption that it did so, as it would last for only, nine months under stat. 5 & 6 Vict. c. 100. s. 3. Nor does the declaration properly negative the truth of the representation: it states that there had been no registration according to the statutes; whereas the registration would be by virtue of only one statute.i 1 Joseph Brown, contrà. The general principle is as said down in the passage cited from Starkie on Evidence, and in Baily v. Merrell (d): but the plaintiff is within that principle. He had no means of ascertaining the falsity of the representation, as the carrier had. No general right of inspection is given by stat. 5 & 6 Vict. c. 100. till after the copyright has expired; sect. 17. It (a) 5 B.& Ad. 645. See Knight v. Gibbs, 1 A. & E. 45. (b) 12 East, 632. (c) 1 M. & W. 495; S. C. Tyrwh. & Gr. 694. 8 Q. B. $23, 837. (d) 3 Bulst. 94. See Solomon v., Lawson, T 1846. BARLEY V. WALFORD. is not shewn that any mark, such as is provided for by Queen's Bench. sect. 4, was described to him. There could be no such actual mark, as there was in fact no copyright: but the declaration does not shew that any mark was mentioned, so as to enable the plaintiff to ascertain the truth or falsehood. The damage was the natural result of the deceit; the plaintiff's conduct was precisely that of a reasonable man who believed the representation. It is said that the plaintiff might have known that the defendant was not bound to give up the plaintiff's name ; but the only important part of the representation in this respect is, that he had in fact done so. There is nothing in the case of Vernon v. Keys (a) to shew that a false representation, knowingly made, with a view to benefit the party making it at the expense of the party to whom it is made, and producing the effect, is not actionable. The innuendo is unimportant: the Court will take notice of the effect of the statute, and the practice in Chancery as to injunctions. In actions for libel or slander the rule is as suggested on the other side; Rex v. Horne (b), Harvey v. French (c): but in such an action as the present, the office of an innuendo is altogether different. The doctrine of setting out words in declarations for slander, laid down in Gutsole v. Mathers (d), is inapplicable to actions for false representations; the judgment there expressly excepts the case: and it is not usual to set out more than the effect of the representation, explained by innuendoes, where necessary; Pasley v. Freeman (e), Eyre v. Dunsford (g), Haycraft v. Creasy (h), Volume IX. Tapp v. Lee (a), Hamar v. Alexander (b), Gainsford v. 1846. BARLEY V. WALFORD. Blachford (c), Fuller v. Wilson (d), Evans v. Collins (e), Turnley v. Macgregor (g); and so are the precedents in 2 Chitt. Pl. 516 &c. (7th ed.). Taylor v. Ashton (h) is an exception; there the representation was by a writing published and circulated. As to the objection that it does not appear (except by the innuendo) that the defendant represented the copyright as still existing, the whole of the representation, as set out, clearly shews that this was meant to be so understood, otherwise the intimation as to proceedings in Chancery would have been unmeaning. The truth of the representation is negatived in express terms: the word "statutes" is unimportant; but, if it were important, the objection would be answered by reference to stat. 6 & 7 Vict. c. 65., which enlarges stat. 5 & 6 Vict. c. 100. Aspland, in reply. The representation was that the plaintiff's design was a copy: whether it was so or not must have been within his own knowledge. Cur. adv. vult. Lord DENMAN C. J., in this term (June 2d), delivered the judgment of the Court. The declaration, in substance, states that the plaintiff was a dealer in printed silk goods, and had sent the defendant divers lots of such goods, the last of which contained handkerchiefs which had been printed by plaintiff (a) 3 B. & P. 367. (c) 6 Price, 36. (e) 5 Q. B. 804. (h) 11 M. & W. 401. (b) 2 New R. 241, (g) 6 Scott's N. R. 906. 1846. BARLEY Y. with a certain ornamental pattern, and that he was about Queen's Bench. to print others in the same manner for profit, all which was known to defendant; yet defendant, contriving and craftily and subtilly intending to deceive, injure, and defraud the plaintiff, and to induce him to desist from so printing the same, and deprive him of the profits, and to acquire the same for his own sole use and benefit, and put him to great and unnecessary expense, falsely, fraudulently and deceitfully represented and affirmed to the plaintiff, of and concerning the said last lot, and the said handkerchiefs, that in the said last lot there was a copy of a registered pattern, and that the parties intended to proceed against the plaintiff in the most expensive manner, by injunction and order through the Court of Chancery (thereby meaning that the said pattern was a copy of a pattern registered according to the statutes &c.); whereas, in fact, no such pattern had been registered &c., and no parties did so intend, as defendant well knew: in consequence of which false representation plaintiff was induced to take a long journey, from Glasgow to London, for the purpose of enquiring into these matters, and of satisfying such supposed parties, and was hindered in his trade, and refrained from making goods of that kind according to orders theretofore received, &c. To this declaration the defendant demurred generally, The judgment which was given in this Court in Evans v. Collins (a), affirming the proposition that every false statement, made by one person and believed by another, and so acted upon as to bring loss upon him, constituted a grievance for which the law gives a remedy (a) 5 Q. B. 804. |