afterwards, and during the continuance of the said provisional protection, cause to be left at the place, to wit, the office of the said commissioners, and within the time, and in the manner, described by the regulations made by the said commissioners in that behalf, particulars in writing of his, the defendant's, objections to the said application of the plaintiff, and afterwards, and during the continuance of the said provisional protection to which the defendant became so entitled as aforesaid, and before the committing of the said supposed grievances, the said provisional specification of the plaintiff, and the defendant's said particulars of objections to the said application of the plaintiff, were duly referred to the said solicitor-general, and afterwards, during the continuance *419] of the said provisional protection, the matters of the said application of the plaintiff, and the defendant's said objections and opposition to the same, came on to be heard, and were heard by and before the said solicitor-general, whereupon he, the defendant, did then represent and state to the said solicitor-general, that he, the defendant, had an interest in opposing the said application of the plaintiff, to wit, for a grant of letters-patent to the plaintiff as in the declaration mentioned, as it was lawful for him, the defendant, to do, for the cause aforesaid. The defendant also demurred to the first count, on the ground that it did not show any cause of action. Joinder.

To the second plea, the plaintiff replied that the invention for which the defendant had applied by petition to Her said Majesty as in the said second plea mentioned, was a part of the plaintiff's said invention as in the said first count mentioned; and that the defendant was not in any sense the true and first inventor thereof, but had derived his knowledge thereof from the plaintiff, after he, the plaintiff, had applied for letters-patent as in the said first count mentioned, as he, the defendant, before and when he applied for such letters-patent, and during and at all and every of the times of the several transactions and matters in the said second plea mentioned well knew; and that the defendant did not apply for such grant of letters-patent to him, the defendant, as in the said second plea mentioned, until after the plaintiff had applied for letters-patent as in the said first count mentioned; and that the defendant's said application for letters-patent, and his several proceedings in the second plea mentioned, were respectively made and taken by him in fraud of the plaintiff, and for the purpose of depriving him, the plaintiff, of that which was, and which the defendant knew to be, a part of his *420] *said invention, and of which the plaintiff, and the plaintiff alone, was the true and first inventor, as the defendant before and at the said several times in the second plea mentioned well knew.

The defendant took issue on the above replication, and also demurred thereto on the ground that it was no answer to the second plea. Joinder in demurrer.

Hindmarch, in support of the demurrer.(a)-The first count discloses no cause of action. The defendant had an interest in opposing the plaintiff's invention. The malicious assertion of a legal right affords no ground of action. [JERVIS, C. J.-The count alleges that the plaintiff obtained provisional protection for his invention by means of falsehood.] If so, it may be a slander of the plaintiff's title; and, if so, the first count is bad, for not setting out the words: Gutsole v. Mathers, 1 M. & W. 495;† Solomon v. Lawson, 8 Q. B. 823 (E. C. L. R. vol. 55). No action lies for words spoken in the course of a judicial inquiry: Astley v. Younge, 2 Burr. 807. The words that are set out are clearly not actionable in themselves without *special damage; and none [*421 is alleged: Kelly v. Partington, 5 B. & Ad. 645 (E. C. L. R. vol. 27). [JERVIS, C. J.-No doubt, in slander of title, a mere allegation of falsehood is not enough. It is the special damage that gives the right of action. The question is, whether the defendant, having surreptitiously obtained a knowledge of the invention from the plaintiff, is not responsible for having maliciously represented to the solicitor-general that he was the true and first inventor, and so prevented the plaintiff from obtaining the alteration in the title which would make his patent available?] That is not the charge contained in this declaration. In Ashley v. Harrison, 1 Esp. N. P. C. 194 (256), it was held, that the proprietor of a place of public amusement cannot maintain an action against a man for a libel on one of his performers, by reason whereof she was deterred from performing on the stage,-the damage being too

remote.

J. Brown, contrà.(b)-If this were an action for *slander of title, the words, no doubt, must be set out. This, however, is

[*422

(a) The points marked for argument on the part of the defendant, were,"That the allegations in the first count respecting the defendant's representing that he had an interest in opposing a grant of letters-patent to the plaintiff, do not show any cause of action against the defendant: That the first count does not show that the plaintiff was deceived by such representation, and the plaintiff cannot recover upon such representation as being a slander of his title, because the words are not set out: That the words set out in the first count are not slanderous, either as to the plaintiff or his alleged invention: That the first count cannot be supported, because the alleged representation and words which the defendant is alleged to have made and written, were made and written in and with reference to an official inquiry before the commissioners of patents and the solicitor-general.

"That the replication to the second plea does not support the declaration, and does not answer, or sufficiently answer, the second plea."

(b) The points marked for argument on the part of the plaintiff, were,

"That the first count shows a cause of action: that it shows that the defendant made a deceitful representation to the solicitor-general, whereby he deceived him, to the injury of the plaintiff, which is a cause of action: that it shows that the defendant maliciously, and without probable cause, opposed the plaintiff's letters-patent, and set up an opposing claim, to the plaintiff's damage, which is a cause of action: that it shows that the defendant acted in fraud of the Patent Law Amendment Act, 1852, to the damage of the plaintiff, which is a cause of action: that it shows a cause of action for slander of title, followed by special damage: that the words by which the plaintiff's title was slandered, were set out that the words set out are slanderous, having been published falsely and maliciously, and followed by special damage: that words published in, and with reference to, an official inquiry, being published falsely and maliciously, are actionable: that the words are alleged to have been published to the solicitor-general and others, and that it does not appear in the first count that they were published in or with reference

not a case of that sort. The distinction is expressly pointed out by Lord Abinger in giving the judgment of the court in Gutsole v. Mathers, 1 M. & W. 495, 503.† There may," he says, "be a class of cases where words are mixed up with the charge, to which this rule could not apply, as, in the ordinary case of an action for deceit by reason of a false representation of character, or where an action is founded on a deceitful representation to induce a party to advance his money: that is not properly an action for words. So, also, where a man defeats the object of another by claiming goods that do not belong to him, and does that falsely and maliciously in such a case, it must be alleged that he did claim them as his own, and thereby defeated the plaintiff's object in respect of them; but the mere form of the words is not sufficient. Here, the complaint is for the act done." [WILLIAMS, J. -In Sheppard v. Wakeman, 1 Lev. 53, 1 Sid. 79, which was an action against a man for falsely and maliciously, with intent to hinder a marriage between the plaintiff and a third person, writing to the intended husband,— *You ought not to marry her, for, before God she is my wife; *423] and therefore if you do, you will live in adultery with her, and your children will be bastards,"-it was argued on behalf of the defendant, as it has been contended here, that it was a mere slander of title: but the court held, that the gist of the action was the malice and the special damage.] In Gerard v. Dickenson, 4 Co. Rep. 18 a,-which was cited in Sheppard v. Wakeman,-in an action for slander of title, the plaintiff declared that he was in treaty with J. S. for a lease of the manor of A. at so much rent, and that the defendant, knowing of the treaty, published these words, I have a lease of the manor of A. for ninety-nine years," and published a lease for ninety years supposed to be made by one seised of the same manor before the plaintiff's purchase thereof, to E. D. her late husband, and offered to sell it whereas, in truth, the defendant knew it to be forged; by reason whereof the said J. S. did not proceed in the treaty for the lease. The defendant by her plea traversed that she knew the lease to be a forgery. And, upon demurrer, it was held, that the action lay, because it was alleged that the defendant knew of the treaty for a lease to J. S., and that the lease which she published as a good lease was a counterfeit one, by which the treaty was broken off. Green v. Button, 2 C. M. & R. 707,† confirms Gerard v. Dickenson. Parke, B., there says: "This is in substance an

to an official inquiry, or solely in or with reference to an official inquiry, but it may be proved that they were published on other occasions.

"That the second plea is bad, and no answer to the part of the first count to which it is pleaded that it neither denies nor excuses, nor justifies the falsehood, the fraud, the deceitfulness, nor the malice of the defendant's pretence and representation as to his interest in opposing the grant of the plaintiff's letters-patent, nor does it show any probable cause for his so doing: that it does not show that the invention for which he had applied for letters-patent was his invention, or one for which he had any right or pretence of right to such letters.

"That the replication to the second plea is a sufficient answer to it, inasmuch as it shows that the defendant's application for letters-patent was fraudulent and improper, and one which he had no right to make."

action on the case for a false and malicious representation; and there is no doubt, on the authority of Gerard v. Dickenson, which has been cited, and also of Lovett v. Weller, 1 Roll. Rep. 309, that the action is maintainable, though the defendant makes a claim of right, if it be made maliciously and without reasonable or probable cause, and the special damage accrues from the claim so made." In that case the words were not set out. Barley v. Walford, 9 Q. B. 197 (E. C. L. R. vol. 58), has a curious analogy to the present case. *There, a declaration in case stated, that the plaintiff was a printer of silk [*424 goods, and had delivered to the defendant a lot of goods, in which were woven fabrics of silk printed by the plaintiff with a design for the ornamenting of them which had been published by the plaintiff to the defendant and others; and the plaintiff was about to print other fabrics. of silk with the same design, and to publish the same in the way of his trade, for gain,-of all which the defendant had notice: but the defendant, contriving to deceive, injure, and defraud the plaintiff, and to induce him to desist from printing more with the design, and to deprive him of the gains he would have made, and to cheat him of the benefit of the design, and to acquire the same for the sole benefit of the defendant, and to put the plaintiff to expense, falsely, fraudulently, and deceit fully represented to the plaintiff, that, in the lot, there was a copy of a registered pattern, (a) and that, the parties having asked the defendant for the printer, the defendant was obliged to give the plaintiff's name, and the parties intended to proceed against the plaintiff by injunction and order through the Court of Chancery (thereby meaning that the design was a copy of a design which had been registered, and the copyright in which was subsisting, according to the statute respecting copyright of designs, and that the parties interested in the design had asked the defendant who was the printer, and the defendant had been obliged to give the plaintiff's name as printer, and the parties intended to proceed against the plaintiff, to prevent him from pirating the design, by injunction and order through the Court of Chancery); whereas, in truth, no such design, or design resembling it, had been registered according to the statute aforesaid; and there were no parties interested in the design; nor had any parties asked the defendant for *the print[*425 er; nor had the defendant given them the plaintiff's name; nor did any parties intend to proceed against the plaintiff by injunction, &c.; as the defendant at the time of making the representation knew: by means of which representation, the plaintiff, believing it to be true, was induced to travel a long distance for the purpose of inquiring into the matters represented, and satisfying the supposed parties, as it was reasonable for him to do under the circumstances, and was induced to abstain from further printing with the design, which he had orders to do, and from selling handkerchiefs printed with the design; and the

(a) See the 5 & 6 Vict. c. 100, and 6 & 7 Vict. c. 65.

defendant, by means of the premises, enjoyed the benefit of the design, to the exclusion of the plaintiff, and printed with the design, and sold for his profit, silk handkerchiefs, and took the profits, without the competition of the plaintiff, and to his exclusion. And it was held, on general demurrer, that the declaration showed a cause of action,-it appearing that the defendant had knowingly uttered a falsehood with the design to deprive the plaintiff of a benefit, or to acquire it to himself, and the damage naturally flowing from the plaintiff's belief. It was objected in that case that the words of the representation were not set out; but the objection was not allowed. Whether the representation be made to the plaintiff or to a third party, is immaterial, if it is false to the knowledge of the defendant, and made for the purpose of injury to the plaintiff or gain to himself, and the damage naturally flows from it. It is said that the action will not lie, because the alleged misrepresentation occurred in a judicial proceeding. That only aggravates the damage the plaintiff has sustained: there is no appeal against the decision of the solicitor-general in withholding a patent. [JERVIS, C. J.-There is nothing in that case to give the Lord Chancellor jurisdiction.] The proceeding before the solicitor-general wants several of the ingredients of a judicial proceeding: there is no public hearing, *426] no power to compel the attendance of witnesses. [WILLIAMS, J.The difficulty I feel is this. If your argument be well founded, that this case falls within the general rule applicable to damage arising from a false and malicious representation, how is the special damage here alleged the necessary consequence of the thing complained of?] The plaintiff's complaint is, that, he having taken the necessary preliminary steps to obtain a patent with an amended title, the defendant comes before the solicitor-general, and fraudulently and maliciously represents to him that the title of the plaintiff's patent as amended may include an invention for which he has obtained provisional protection, in consequence of which the solicitor-general refuses to grant a fiat for a patent to the plaintiff. [WILLIAMS, J.-The defendant avails himself of a clause in the Patent Law Amendment Act, 15 & 16 Vict. c. 83, s. 12, which enables any person having an interest in opposing the grant of letterspatent for an invention to state their objections: and the solicitorgeneral in consequence withholds his fiat.] We complain that it is done maliciously. [CROWDER, J.-In order to sustain the first count, you must show that the special damage is made out.] If the special damage alleged may have resulted from the act complained of, it is a question for the jury. It is not usual to repeat the special damage at the end of each count. An instance of an action of this mixed character is to be found in Newman v. Zachary, Aleyn, 3. The plaintiff declared that the defendant was his shepherd, and that two of his sheep did estray, one of which being found again, the defendant affirmed to be the plaintiff's, whereupon the plaintiff paid for the feeding of it,