Page images
PDF
EPUB

only known to the librarian, but attention had been called to the fact by
the publication in the Patents Journal of English translations of their
titles. Moreover, the specifications themselves were in their proper places
in the library, and anybody wanting to use them could have done so.
Whether anyone other than the librarian did in fact ever see them
was not known. His lordship thought that on this evidence the burden
of shewing that the English patentee was the first inventor in this
country was cast upon the plaintiff; and that unless he could shew
that the German specifications were not, in fact, seen by anyone who
could understand them, the defendant must succeed. If the case were
being tried by a jury, his lordship was not sure that the judge might not
direct the jury to find that the patentee was not the true and first
inventor. But without going so far as to say that the judge ought to give
such a direction, the judge ought at least to tell the jury to find for the
defendant if they thought that the German specifications had been so
published in this country as to have become known to anyone here; and
to guide the jury, the judge ought to tell them that the invention, having
been so laid before the public in this country, ought to be presumed to
have become known in this country, in the absence of all proof to the
contrary. Even if the case had turned solely on the publication of the
second of the two German specifications, his lordship was not prepared to
say it would be wrong to direct a verdict for the defendant.
At any rate, the only question which could be properly left to
them would be whether in their opinion the German specification had
been published in this country long enough before the plaintiff's patent
to have become known here. This question really admitted of but one
answer, and it could not be supposed that any jury would find that six
weeks were not long enough for such a purpose. If the two German
specifications had been in the English language his lordship had no doubt
that the defendant would be entitled to succeed. It was familiar law
that proof of the description in English of an invention in a book pub-
lished in this country was fatal to the validity of a subsequent patent for
the same invention. In such a case no evidence was necessary to shew
that the book was in fact read or referred to. Proof that it had not been
sold or circulated might, no doubt, be given, and, if such proof were
given, the publication would not be fatal to the patent. The same rule
was applicable to the proof of a publication (by inrolment in the Patent
Office) of an earlier specification of the same invention. Although in
that case there was not many copies published, but only one, still proof
was never required that the specification had been actually seen by the
public. In order to shew that a patentee was not the true and first
inventor of his patented invention it was not necessary to shew that he
learnt it from a prior publication existing in this country. It was
sufficient to shew that the invention was so described in some book or
document published in this country as that some English people might
be fairly supposed to have known of it. Plimpton v. Malcolmson (3 Ch. D.
531) and Plimpton v. Spiller (6 Ch. D. 412) were not opposed to this view
of the law, for in those cases there was evidence which satisfied the court
that the one copy in this country relied on as a prior publication had not,
in fact, been laid before the public, and was not known to exist. The
next question was the effect, if any, of the specifications being in German
and not in English. The fact that German was understood by many
people in this country, and that persons who could read and translate
German could easily be found by those who wanted their assistance, must
be treated as common knowledge and be judicially noticed. In the
present case the German specifications were in the very place where every
one in search of information on the subject to which they related would
expect to find them, and to which he would go for information. It might
well be that some person in this country might have seen these specifica-
use; and it would not be right to assume that there was no such person.
No doubt the difference in the times during which the specifications were
open to the public made a difference in the probability of knowledge
being actually gained from them; but six weeks was quite long enough to
enable people on the look-out for information to acquire it, especially
when they were told by the lists published in the Patents Journal that the
specifications were in the Patent Office and could be seen there. Prima
facie, a patentee was not the first inventor of his patented invention if it
was proved that before the date of his patent an intelligible description of
his invention, either in English or in any other language commonly known
in this country, was known to exist in this country, either in the Patent
Office or in any other library to which the public were admitted, and to
which persons in search of information on the subject to which the patent
related would naturally go for information. But if it was proved
that the foreign publication, although in a public library, was
not in fact known to be there, the unknown existence of the
publication in this country would not be fatal to the patent.
COTTON, L.J., Concurred. LOPES, L.J., thought that the existence of the
German specifications in the library of the Patent Office, where they
were unreservedly accessible to everyone, was in itself conclusive
evidence of a prior publication. The Patent Office was open to the
public, and any one of the public might have seen the specifications.
Whether they were proved to have done so or not was immaterial. The
patentee must be the first and true inventor. If the invention had,
previously to the date of the plaintiff's patent, been communicated to
the public, the patent was void. The patentee was not, then, the first
and true inventor if his discovery had already been communicated to the
public. He then added nothing to the stock of human knowledge; he
gave nothing to the public; what he purported to give they possessed
before. Could the plaintiff be said to have increased the stock of human
knowledge, to have given the public any information which they did
not previously possess, if at the time of filing his specification there
existed, in the library of the Patent Office unreservedly open to the public,

tions and have obtained information from them which he was entitled to

specifications describing in identical terms the same invention? The public were then possessed of the information contained in the plaintiff's parent, it was on the shelves of their public library-a library in the Patent Office, the place of all others devoted to information relating to inventions; the place to which anyone wanting information on such subjects would resort. Why should the public be precluded from the right of using the information of which they were then in possession? His lordship thought that, directly the German specifications were deposited in the library of the Patent Office, and became unreservedly accessible to the public, there was a complete publication of the invention in this country, and it became the property of the public. In his opinion the depositing the specifications in the library of the Patent Office was itself a publication of the invention contained in them, and the invention was then dedicated to, and became the property of, the public. Plimpton v. Spiller (6 Ch. D. 429) was therefore very different from the present case. There the book was not accessible to the public, and could not be said to have become part of the public stock of information. His lordship could find nothing in United Telephone Co. v. Harrison (21 Ch. D. 731), or Otto v. Steel (31 Ch. D. 241) opposed to the view that these specifications were deposited in the library of the Patent Office in such a way as to become unreservedly accessible to the public, and to become part of their property. They were deposited in a place devoted to the subjects with which they dealt; they were placed within the reach of every member of the public who desired to consult them. His lordship was at a loss to understand how a patentee could be said to add anything to the common stock of public knowledge when the public, at the date of his letters patent, had in their public library, accessible to everyone, a detailed description of that for which he was seeking a monopoly. If a previous complete specification for the same invention was proved to have been enrolled in the Patent Office, that in itself, without any proof that anyone had ever seen or heard of it, was conclusive evidence of prior publication, probably on the ground that a document describing the invention had been filed in the Patent Office, a document accessible to all, and therefore the public could not be precluded from using information which they already possessed. In Hindmarch on Patents (1st ed., p. 33) it was laid down that "if the public once becomes possessed of an invention by any means whatever, no subsequent patent for it can be granted, either to the true or first inventor himself or any other person, for the public cannot be deprived of the right to use the invention, and a patentee for the invention could not give any consideration to the public for the grant, the public possessing everything he could give." This, in his He did not lordship's opinion, was a correct statement of the law. attach any importance to the fact that the specifications were in the German language, and he agreed with what had been said by Lindley, L.J., on that point.-COUNSEL, Aston, Q.C., and W. R. Bousfield; Romer, Q.C., and T. M. Goodeve. SOLICITORS, Crowders & Vizard, for Owston, Dickinson, & Simpson, Leicester; Johnston, Harrison, & Powell, for R. & R. C. Winder, Bolton.

LADYWELL MINING CO. v. BROOKES-LADYWELL MINING CO
v. HUGGONS-C. A. No. 2, 2nd April.
COMPANY-PROMOTER-SECRET PROFIT-LIABILITY TO ACCOUNT.
This was an appeal from the dismissal by Stirling, J. (34 Ch. D. 398).
of two actions brought by the plaintiff company to make the defendants
liable for alleged misfeasances as promoters of the company. The com-
pany was formed by registration on the 8th of April, 1873, for the purp se
of purchasing the lease of the Ladywell Mine from the South Salop
Mining Co. Early in 1873 negotiations were opened between the chair-
man of the South Salop Co. and Mr. Palin, with a view to the purchase of
the mine by himself and other persons associated with him; and
on the 1st of February, 1873, an agreement was entered into between the
South Salop Co., as vendors, and Palin, Brookes, Mundey, and Waters, as
purchasers, for the sale to them of the Ladywell Mine, and all the plant,
machinery, and effects, for £5,000, £500 of which was to be paid down as
a deposit, and the balance on or before the 1st of March, 1873. The
purchasers made the purchase with the intention of re-selling the mine
to a company which was to be formed. The deposit was paid immedi-
ately, and the balance of the purchase-money was paid on the 17th of
March by the purchasers out of their own moneys, in the proportions in
which they were interested in the purchase. On the 4th of
April, 1883, an agreement was entered into between Palin, Brookes,
Mundey, Waters, and a Mr. Oldrey, as vendors, and F. R. Wilson, as
agent for the plaintiff company, for the sale of the mine to the company
for £18,000 in cash, payable to the vendors in certain proportions.
The objects of the plaintiff company, as stated in the memorandum of
association, were (inter alia) "to purchase a lease or leases of a mine
called the Ladywell Mine." The articles of association contained a clause
purporting to ratify, confirm, and adopt, and make binding on the
company, the agreement of the 4th of April, 1873. and they also provided
that the first directors of the company should be Palin, Brookes, Mundey,
Oldrey, and one Greame. At the first meeting of the company, on the
9th of April, 1873, the seal of the company was affixed to the preliminary
agreement, and shares were allotted to Waters, Mundey, Palin, and
Brookes, who gave cheques for their fully paid-up shares, and received
cheques for the purchase-moneys payable to them under the agreement.
No express notice was given to the plaintiff company of the agreement of
the 1st of February, 1873, or of the amount of the purchase-money therein
mentioned. The company, in January, 1882, passed resolutions for a
voluntary winding-up, and a liquidator was appointed. In August, 1883,
the lessor recovered the property, in an action against the plaintiff com-
pany, which they did not defend. In October, 1884, the plaintiff
company commenced the first of the present actions against Brookes

and Waters, and shortly afterwards they commenced the second action against the executors of Mundey, Oldrey, and Palin, who were all then dead, claiming that the defendants (in the first action), and, as against the executors, that the estates of their testators, were liable in damages, on the ground that the defendants to the first action and the testators of the executors respectively were promoters of the company, and had procured the adoption of the agreement of the 4th of April, 1873, by a breach of trust and duty and by fraud; that the agreement might be set aside; and that the purchase-money might be returned; or, in the alternative, that the estates of the several testators might be ordered to account for the profits made by them on their sale to the company, on the ground that Palin and his associates must be treated as having purchased the property on behalf of the company for £5,000, and, therefore, were chargeable with the difference between that sum and the £18,000 for which they sold to the company; and, further, that they stood in a fiduciary position to the company, not only when they became directors after the incorporation of the company, but at the time of the original purchase, and were, therefore, liable to the company for all profits made by them in the transaction. Stirling, J., dismissed both actions, on the ground that the evidence failed to shew that the vendors to the company, when they bought the mine on the 1st of February, 1873, were promoters of, or stood in a fiduciary position to, the company, and that, even if they were promoters, the case was governed by Re Cape Breton Co. (29 Ch. D. 795, 33 W. R. 788, 28 SOLICITORS' JOURNAL, 344), because, by reason of the recovery of the property by the landlord, which the company had taken no steps to prevent, the rescission of the agreement had become impossible.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) affirmed the decision. COTTON, L.J., said that in his opinion the case was entirely covered by Re Cape Breton Co. The company in that case, as in the present, had adopted the purchase, and, although there might have been grounds for setting it aside while the company was carrying on business as a going concern, yet, as rescission had become impossible, no relief could be given. It was said that the purchase was made in contemplation of the formation of the company, and made on their behalf by Palin and the others as agents of the company. But the contract between Palin and his associates and the owners of the mine was made some time before the formation of the company, and what took place between the company and Palin and his associates was no part of the original tran saction. No doubt they contemplated the formation of a company, and the sale of the mine to the company when formed. But no part of the original purchase-money was paid out of the funds of the company; the whole £5,000 was paid by Palin and his associates out of their own moneys. Palin and his associates, in entering into the contract of February, 1873, acted on behalf of themselves alone, and did not, at that time, act in or occupy any fiduciary position whatever. They were, after their purchase was made, perfectly free to do with the mine whatever they liked. It was urged, however, that Palin and his associates were undoubtedly promoters of the company, and must be assumed to have been so at the time of entering into the contract of February, 1873. It was true that they were promoters of the company at some time cr other; but it was not clear that they were promoters before the formation of the company. The onus was on the company to establish that, when the original contract was entered into, Palin and his associates were so acting on behalf of the intended company that, if the company should be afterwards formed, they could not either retain the mine for themselves as against the company, or sell it to the company for more than they had given for it. The evidence did not establish that Palin and his associates were so acting in the matter of the original contract as to entitle the company afterwards to say that they were acting on behalf of the company and as their agents, so as not to be able to retain the large profit made by them on a resale to the company. The contract was not in any way dependent upon the company being formed. Palin and his associates bought for themselves, and there was nothing to entitle the company to say that they bought on their behalf. LINDLEY, and LOPES, L.JJ., concurred.-COUNSEL, Seward Brice, Q.C., and A. N. Cumming; Hemming, Q. C., Buckley, Q.C., and Grosvenor Woods. SOLICITORS, Jackson & Co.; J. Holmes & Son; Snell, Son, & Greenip.

MUTRIE v. BINNEY-C. A. No. 2., 30th March. CONCURRENT ACTIONS IN ENGLISH AND COLONIAL COURTS-"DOUBLE VEXATION"-STRIKING OUT COUNTER-CLAIM-R. S. C., 1883, XIX., 27; XXV.,

4.

This was an appeal from a decision of North, J., the question being, whether a counter-claim by the defendants ought to be struck out, on the ground that the plaintiffs would be "doubly vexed" by reason of there having been some previous proceedings between the parties in relation to the same matters in the colony of British Honduras. The plaintiffs were M. and C.; the defendants were B. and N. The plaintiffs and the defendant B. carried on business in partnership as merchants in Honduras, under the firm of G. & Co., from the 1st of February, 1879, to the 31st of January, 1884, when the partnership came to an end. During the same period, the defendants, who carried on business in London, also under the firm of G. & Co., acted as general agents in England for the Honduras firm of G. & Co. After the expiration of the Honduras partnership the defendant B. commenced a suit in the Supreme Court of British Honduras for an account of the partnership transactions of that firm, and on the 28th of April, 1885, a decree was made for that purpose. The taking of the accounts in that suit was not yet completed. The writ in the present action was issued on the 15th of September last, and by their statement of claim, delivered on the 25th of November, the plaintiffs claimed an account of all moneys received and paid by the defendants as agents of the late Honduras firm; an inquiry how much of the amount found due from the defendants on such account belonged to the plaintiffs respectively,

and payment to the plaintiffs respectively accordingly; with other consequential relief. The defendants delivered a defence and counter-claim, and by the latter they claimed an account of all the partnership dealings between the plaintiffs and the defendant B., and of the partnership property; inquiries and accounts; and that a receiver should be appointed and an injunction granted. In the counter-claim the defendants stated that the successor to the Chief Justice, who originally heard the suit in Honduras, was, prior to his appointment, engaged as counsel and solicitor in the suit, and was the only Judge in the colony; that the clerk of courts, by whom the accounts directed by the Privy Council would have to be taken, was also formerly engaged as solicitor in the suit; and that it was impracticable to appoint in the colony a suitable person as receiver of the partnership assets, and to get in the partnership outstandings. The plaintiffs applied to have this counter-claim struck out, and North, J., ordered it to be struck out. He was of opinion that, prima facie, the two actions were vexatious, and ought not to be allowed to go, and that the defendants were bound to shew that some substantial benefit would result to them from the counter-claim. This, he thought, they had not done. On the appeal it was argued for the defendants that the onus was on the party who sought to put a stop to an action to shew why it should not be allowed to go on, and that, at any rate, the counter-claim should not be struck out altogether. The defendant N., who was not a party to the Honduras suit, offered to undertake to be bound by the proceedings in it to the same extent as the defendant B. THE COURT OF APPEAL (COTTON and LINDLEY, LJJ.) reversed the decision. COTTON, L.J., said that the agreement between the Honduras firm and the English firm was a peculiar one, and he did not see how it was possible that the accounts should be finally taken between the two firms until the accounts of the Honduras partnership had been taken. North, J., had not merely stayed the proceedings on the counter-claim, but he had struck it out altogether, and he had not done so in the exerbeen commenced by the Honduras partners his lordship should uncise of any discretion with regard to convenience. If this action had not doubtedly have thought it vexatious for the defendant B. to ask for the taking of accounts, for the taking of which he had already obtained an order in Honduras. But under the circumstances it would be wrong to strike out the counter-claim altogether, and thus prevent the defendant B. from asking for the proper judgment at the trial of this action. Of course he would not be allowed to re-open any matter which had been already decided by a competent court. Upon the defendant giving the undertaking which he had offered, the order of North, J., would be discharged, without prejudice to any application when the proceedings in the Court of Honduras were finally determined. LINDLEY, L.J., said that it did not follow that because the defendants had asked for an account of partnership dealings they would get it, or would get it in an unqualified form. If North, J., had merely exercised a discretion this court would have been unwilling to interfere; but he had proceeded on the principle that the counter-claim was altogether wrong-that it was vexatious and oppressive. The claim of the plaintiffs in this action was not merely to get in an asset of the Honduras firm in this country; it went much further. They sought to get in that asset, and to have it distributed among the partners in that firm. How could an asset of a firm be distributed without taking the accounts of that firm? It did not, however, follow that the accounts would have to be taken over again. The accounts taken in Honduras might be adopted. But, in some shape or other, the accounts of the Honduras firm must be taken.-COUNSEL, Sir H. Davey, Q.C., and Herbert Cowell; Cozens- Hardy, Q.C., and John Cutler. SOLICITORS, Parker, Garrett, & Parker; Rooke & Sons.

TRADE-MARK-RECTIFICATION OF REGISTER-PERSONS ENTITLED TO APPLY Re AINSLIE'S TRADE-MARK-Chitty, J., 30th March. RECTIFICATION PATENTS, &C., ACT, 1883, s. 90-"PERSONS

FOR

AGGRIEVED."

In this case a motion was made to rectify the register of trade-marks by striking out the mark Ben Ledi as a mark for Scotch whisky. The respondents, a firm of Scotch whisky sellers and the registered owners of the mark, alleged that they had entered into an agreement with the applicants to employ them as sole agents in England for Scotch whisky, and that the applicants should sell no other Scotch whisky in England except that which they obtained from the respondents; and the respondents, whilst admitting that the mark was not capable of registration within section 64 of the Patents, &c., Act, 1883 (Re Van Duzer's TradeMark, 35 W. R. 294), submitted that the applicants could not move as persons aggrieved" under section 90 of the Act, seeing that they were bound by their contract. It appeared that the respondents had instituted injunction proceedings against the applicants.

66

CHITTY, J., said that he failed to perceive how the alleged contract displaced the right of the applicants to disencumber the register of that which was no mark at all. In the injunction proceedings the respondents would have two grounds on which to base their case-namely, the registration of their trade-mark and the existence of the contract. By removing the trade-mark from the register he should not be affecting the respondents' rights under the contract. He was bound to say that the respondents had no trade-mark, seeing that the question on that point was not one of equitable right, but of right conferred by statute. The respondents must pay the costs of the motion for rectification.-COUNSEL, Romer, Q.C, and Waggett; Whitehorne, Q.C., and McClymont. SOLICITORS, J. F. & C. Isaacson; Neish & Howell.

Re YORK (deceased), ATKINSON v. POWELL-Stirling, J., 2nd April. ADMINISTRATION-INSOLVENT ESTATE-TRANSFER ΤΟ THE BANKRUPTCY

COURT-BANKRUPTCY ACT, 1883, s. 125, sSUB-SECTION 4.

In this case the question arose as to the circumstances under which the

CARRIERS-SPECIAL CONTRACT-REASONABLENESS.

An

administration of an insolvent estate will be transferred to the Bankruptcy Court under the above sub-section. The usual administration CUTLER v. NORTH LONDON RAILWAY CO.-Q. B. Div., 1st April judgment had been made on the 14th of October, 1886. Advertisements for creditors had been issued, and 127 claims sent in, which had not yet been adjudicated upon. A large number of the creditors lived in or near In this case the plaintiff, the holder of a season ticket between BroadNewmarket. The present application was made by certain bankers, who street and Kew, saw his portmanteau labelled at Broad-street for Kew, claimed to be creditors for a large amount on the balance of their account, and entered the train, by which he travelled to Camden Town. There he got but whose claim had not yet been proved, for a transfer of the adminis-out and proceeded by a later train to Kew. On his arrival there the porttration to the proper bankruptcy court-in this case the county court of manteau was not to be found. At the time of taking his season ticket he Cambridge. The application was opposed by the defendant, who was had signed a statement by which he bound himself to abide by and submit to all the regulations of the defendant company. One of these administratrix, and who claimed a right of retainer for £1,109. It was contended on behalf of the defendant that there was no jurisdiction to regulations was to this effect:-" In order to prevent delay and inconmake such an order after an administration judgment, and that if there venience on the re-delivery of luggage at the end of a journey, passengers were, the jurisdiction was discretionary, and should not be exercised in are requested to place on each article their name and address, and notice this case. The application was made too late, and furthermore, if this is hereby given that the company will not be responsible unless fully and transfer were made, the defendant might lose her right of retainer. properly addressed with the name and destination of the owner. action was brought by the plaintiff to recover damages in respect of his STIRLING, J., held that he had jurisdiction to make the order. That loss, and the learned Recorder of London nonsuited him. jurisdiction was discretionary, and in exercising its discretion the court would chiefly consider the questions of convenience, delay, and expense. As regarded convenience and delay, there was a preponderance in favour of the county court. As regarded expense, he had ascertained that it was the practice of the Bankruptcy Court to take up the proceedings at the point at which they were left by the High Court. No expense would therefore be thrown away. The question of the defendant's right of retainer would have to be considered by the judge in bankruptcy, and could not be allowed to stand in the way of a transfer. The defendant would get her costs, charges, and expenses under section 125. sub-section 7, of the Act. The order was one which ought to be made. Having regard, however, to the fact that the claim of the applicants had not yet been proved, his lordship directed the motion to stand over until their claim had been verified in the ordinary way.-COUNSEL, Hastings, Q.C., and F. H. Colt; Pearson, Q.C., and Vernon R. Smith. SOLICITORS, Aldridge, Thorn, & Morris, for Fenn, D'Albani, & Ellis, Newmarket; Gibbs & White.

THE COURT (HAWKINS and A. L. SMITH, JJ.) held that the nonsuit was wrong. HAWKINS, J., said that, whether the railway company were liable as common carriers or not during the transit between Camden Town and Kew after the plaintiff had left the train, there was evidence of negligence to go to the jury which they were bound to rebut. With regard to the special contract, his lordship was of opinion that, inasmuch as theeffect of the regulation in question would be to protect the company from all liability whatever as regards passengers' luggage when not labelled, the stipulation was not enforceable by the company in view of the provisions of the Railway and Canal Traffic Act, 1854, s. 7. A. L. SMITH, J., was of the same opinion.-COUNSEL, Guiry; Candy, Q.C. SOLICITORS, Battams; Paine, Son, & Pollock.

HATCHARD V. MEGE-Q. B. Div., 1st April.

Re COOKE'S ESTATE-Stirling, J., 5th and 6th April. DOMICILE-ENGLISH INFANT MARRIED TO A FRENCHMAN-NOTARIAL CON- in the habit of selling champagne under his registered trade-mark of TRACT-VALIDITY DETERMINED BY "LEX DOMICILII," NOT CONTRACTUS."

"LEX LOCI

In this case the question arose as to whether the validity of a marriage contract made prior to the marriage of a domiciled English woman with a domiciled Frenchman was to be determined by the law of England or the law of France. In 1839 Charlotte Sarah Nicholson, then an infant and a domiciled Englishwoman, married the Viscount D'Argeaud, a domiciled Frenchman, at Boulogne. Prior to the marriage a notarial contract was executed in French form, by which it was agreed that there should be separation of estates between the intended husband and wife. The Viscountess D'Argeaud had three children by her husband, two of whom are now living. In 1845 she separated from her husband and went to live in Jersey. In 1853, believing the Viscount to be dead, she married William Briggs, and lived with him in New South Wales until her death in 1879. The Viscount D'Argeaud did not, in fact, die till 1877. By her will, made in 1878, the Viscountess D'Argeaud devised and bequeathed all her real and personal estate to William Briggs. Her property consisted of a moiety of the residuary estate of William Cooke, who died in 1846. The fund representing this moiety had been paid into court by the trustees, and the income had been accumulated. no part of it having ever been paid to the Viscountess D'Argeaud. William Briggs now presented a petition for the payment of the whole of the fund to him. Two questions were raised-(1) whether Viscountess D'Argeaud ever lost the French domicile which she acquired upon her marriage; and (2) whether the notarial contract was binding upon her. If either of those questions were answered in the affirmative it was admitted that the children of the Viscountess D'Argeaud by Viscount D'Argeaud were entitled to share in the fund. It was further admitted that if the validity of the notarial contract was to be determined according to the law of France, it was binding upon the lady. It was argued on behalf of the petitioner with regard to the second point, that the validity of the notarial contract was to be determined according to the law of the domicile and not according to the law of the country in which the contract was made, and for this Sottomayor v. De Barros (26 W. R. 455, 3 P. D. 1) was cited. Miss Nicholson, therefore, having been a domiciled Englishwoman when she entered into the contract, and not, having acquired a French domicile until her marriage actually took place, the law of England governed, and, as she was an infant at the time and had never confirmed the contract or received any benefit under it, it was not binding upon her. STIRLING, J., held that the Viscountess D'Argeaud, by continuing to reside in New South Wales after her death of the Viscount, had acquired a domicile of choice there, but that even if she had not, she had at any rate shewn an intention to abandon her French domicile, and according to Udny v. Udny (1 Sc. App. 441) her domicile of origin had become restored. With regard to the second point, his lordship held that the proposition laid down by the Court of Appeal in Sottomayor v. De Barros, that "it is a well recognized principle of law that the question of personal capacity to enter into any contract is to be decided by the law of the domicile," was binding upon him, however it might have been criticized. He accordingly held that the validity of the notarial contract was to be determined according to English law; that it was consequentl not binding upon the Viscountess, and that the petitioner was entitled to the whole fund.-COUNSEL, Hastings, Q.C., and Mac Swinney; Buckley QC., and Monckton; Bailey. SOLICITORS, T. R. Apps; Donnithorne & Ewer; Bailey, Shaw, & Gillett.

SLANDER OF TITLE-TRADE-MARK-RIGHT OF EXECUTOR TO SUE. This was an action against the defendants for having published a libel on the plaintiff in his businesss as a wine merchant. The plaintiff had been "Delmonico Champagne," and the defendants published a statement to the effect that they alone were entitled to the use of that name; that they and that the plaintiff's wine was not genuine. would take proceedings against anyone selling Delmonico champagne, After action brought the plaintiff died, and the plaintiff's executrix obtained an order to continue the proceedings. At the trial Lord Coleridge, C.J., directed a nonsuit, motion to set the nonsuit aside, on the ground that no right of action survived to the executrix. On a

THE COURT (DAY and WILLS, JJ.) held that the statement of claim shewed a cause of action in the nature of a slander of title, which did survive to the executrix. DAY, J., said that, though no doubt the executrix could have no claim against the defendants for their allegations against the personal character of the testator in his business as a wine merchant, the statement that the testator had no right to use the trademark stood on a different footing. The action was in the nature of an action for slander of title, and was therefore different from an action for libel. In the former action it was necessary to prove malice and special damage; and the plaintiff could do that by shewing that the statement was intended to injure, and had injured, the sale of the champagne sold under the registered trade-mark. WILLS, J., concurred, and said that there could be no doubt that trade-marks were as much property as anything else, and that the imputation on the plaintiff's right to use their registered trade-mark was a direct injury to that property.-COUNSEL, Morton Daniel and Cole; Kemp, Q.C., and Bullen. SOLICITORS, Slark & Metcalfe; J.

Anderson Rose.

BANKRUPTCY CASES.

Ex parte GODFREY, Re LAZARUS, C. A. No. 1, 25th March. BANKRUPTCY-COMPOSITION-POWER OF COURT TO ENFORCE PROVISIONSBANKRUPTCY ACT, 1883, ss. 18, 23-BANKRUPTCY RULES, 1886, R. 211. The question in this case was whether the Court of Bankruptcy has the same power to enforce the provisions of a composition entered into under section 23 of the Bankruptcy Act, 1883, as it has to enforce the provisions of a composition entered into under section 18. Section 18 enables the creditors of a debtor against whom a receiving order has been made (before any adjudication of bankruptcy) to resolve to accept a composition, which is not to be binding on the creditors unless the resolution accepting it is confirmed at a second meeting, and is approved by the court. Sub-section 8 provides that "a composition accepted and approved in pursuance of this section shall be binding on all the creditors so far as relates to any debts due to them from the debtor and provable in bankruptcy." By subsection 10, "the provisions of a composition under this section may be enforced by the court on the application of any person interested, and any disobedience to an order of the court made on the application shall be deemed a contempt of court." Sub-section 11 provides that "if default is made in payment of any instalment due in pursuance of the composition the court may, if it thinks fit, on application by any creditor, adjudge the debtor bankrupt and annul the composition." Section 23 provides, by sub-section 1, that, when a debtor is adjudged bankrupt, the creditors may, if they think fit, at any time after the adjudication, by special resolution, resolve to entertain a proposal for a composition in satisfaction of the debts due to them under the bankruptcy, or for a scheme of arrangement of the bankrupt's affairs; and thereupon the same proceedings shall be taken and the same consequences shall ensue as in

66

or scheme

the case of a composition or scheme accepted before adjudication." By sub-made at the sitting of the court on the 16th ult. by Mr. J. Appleby who section 2, "if the court approves the composition or scheme, it may make said that that morning he had four or five cases put into his hands on an order annulling the bankruptcy." And by sub-section 3, "if default is behalf of poor persons who were unable to pay a solicitor's fees, but on made in payment of any instalment due in pursuance of the composition appearing before the registrar he had refused to hear him, and had the court may, if it thinks fit, on application by any stated that agents could not be permitted to conduct cases. The regisperson interested, adjudge the debtor bankrupt and annul the composi- trar said his opinion was, and he had been confirmed by the Treasury, tion or scheme." Rule 211 of the Bankruptcy Rules, 1886, provides that, that it was illegal and improper for persons not duly qualified to appear "where a composition or scheme is sanctioned, and default is made in any in the county courts "for fee or reward." He had communicated with payment thereunder, either by the debtor or the trustee (if any), no action Mr. Nicol, and he had the authority of the Treasury for refusing to hear to enforce such payment shall lie, but the remedy of any person aggrieved unqualified persons. Section 10 of the County Courts Act, 1856, provided shall be by application to the court." In the present case the debtor had that those who might be heard were persons duly qualified to appear, been adjudicated a bankrupt, and the creditors afterwards, under section 23, and that persons defending should be duly authorized, and the view Mr. resolved to accept a composition. The resolution was duly confirmed, and Nicol took was that a person was not duly authorized who was acting was approved by the court, and an order was made annulling the adjudi- in contravention of an Act of Parliament. His Honour said he would give cation. The debtor made default in paying the composition to one of the his decision on the next court day. creditors, and the creditor applied to the court for an order that the debtor should pay him the amount due within fourteen days. Mr. Registrar Hazlitt refused the application. He was of opinion that the power given by sub-section 10 of section 18 to enforce the provisions of a composition applied only to a composition under that section, and that it is not imported by the latter part of sub-section 1 of section 23 into that section, and that the only power when default is made in the payment of a composition under section 23 is that which is expressly given by sub-section 3-viz., to adjudicate the debtor a bankrupt. On the appeal it was argued on behalf of the creditor that the making of an order under sub-section 10 of section 18 to enforce a composition under that section was one of the " conse. quences "which ensued from the composition, and that therefore the power given by sub-section 10 was, by sub-section 1 of section 23, imported into that section so as to enable the court in the same way to enforce a composition under section 23. And it was said that the reason for expressly repeating in sub-section 3 the power to adjudicate the debtor a bankrupt in case of default was this, that the debtor, in the case of a composition under section 23, having been already adjudicated a bankrupt, and the bankruptcy having been annulled, it might otherwise have been thought that the power of adjudication in case of default which is given by sub-section 11 of section 18 was not imported into section 23 by the general words of sub-section 1. On behalf of the debtor it was urged that the 66 consequences " referred to in sub-section 1 of section 23 meant only the necessary consequences of a composition under section 18, such as the binding of all the creditors by a composition duly accepted and approved, and did not include the powers given to the court and the liabilities imposed on the debtor by section 18 in case of default. And it was said that the express repetition in section 23 of the power to adjudicate the debtor a bankrupt, while the power to enforce the provisions of the composition was not repeated, shewed that the former power only was intended to be conferred in case of default in the payment of a composiTHE COURT OF APPEAL (Lord ESHER, M.R., and BOWEN and FRY, L.JJ.) reversed the decision of the registrar, holding that the power to enforce the payment of the composition existed under section 23 just as under section 18. They were of opinion that the making of an order to enforce the payment of a composition is one of the "consequences" ensuing from a composition under section 18, which is, by sub-section 1 of section 23, imported into a composition under that section, and that the power to adjudicate the debtor a bankrupt in case of default is expressly repeated in sub-section 3 for the reason suggested by the appellant's counsel-viz., to exclude the notion that an adjudication could not be made after the original adjudication had been annulled. The power to adjudicate was, under section 23, as under section 18, an alternative, not an exclusive, power. The case was remitted to the registrar to be heard on its merits.-COUNSEL, Winslow, Q.C., and Herbert Reed; Cooper Willis, Q.C. SOLICITORS, H. E. Robertson; Nordon & Lazarus.

tion under section 23.

Ex parte GREPE, Re GREPF-C.A. No. 2, 6th April. BANKRUPTCY APPEAL-SECURITY FOR COSTS-POWER OF COURT TO DISPENSE WITH SECURITY-APPEAL BY BANKRUPT-BANKRUPTCY RULES, 1886, R. 131. This was an application by a bankrupt asking the court, under rule 131 of the Bankruptcy Rules, 1886, to dispense with security upon an appeal which he had presented against the refusal of Mr. Registrar Brougham to annul the adjudication of bankruptcy until the bankrupt had paid the costs of the trustee in the bankruptcy. Rule 131 provides that an appellant shall, at or before entering his appeal, deposit £20 as security for costs, "provided that the Court of Appeal may in any special case increase or diminish the amount of such security or dispense therewith." The only ground alleged for dispensing with security was that the bankrupt had not the means of making the deposit, and that he had no friends willing to help him.

THE COURT OF APPEAL (COTTON, LINDLEY, and LOPES, L.JJ.) refused the application. COTTON, LJ., said that to grant the application would practically be to repeal the rule, for every bankrupt who wished to appeal from an order would be able to say that he had no money. There were no special circumstances. LINDLEY, L.J., concurred. The court, if it granted the application, would be varying the rule by adding to it a proviso that "wherever a bankrupt appeals no security shall be required." LOPES, L.J., was of opinion that mere inability to find the money for the deposit was not a sufficient reason for dispensing with it. -COUNSEL, F. Stroud. SOLICITORS, H. Kimber, Elliott & Co.

CASES AFFECTING SOLICITORS.

Re APPLEBY-Croydon County Court, Judge Lushington, 5th April.
UNQUALIFIED PRACTITIONERS.
It will be remembered that in this case (ante, p. 349) a statement was

THE JUDGE now said: The question for decision is whether, in the exercise of my judicial discretion, I ought to allow paid agents, not being solicitors, to appear in any case for absent parties, address the court, or In ordinary contentious business paid give any evidence for them. agents have not been allowed to appear, but in undefended cases and judgment summonses they have been tacitly permitted to appear for an absent plaintiff or an absent defendant, and give evidence of means or discuss terms of payment, or both. I think one or two cases of misconduct on the part of agents have recently come to light. But quite recently in an undefended case which was being heard before the registrar, Mr. Fox refused to hear Mr. Appleby, a paid agent, who came to appear for the absent defendant. He founded his refusal not at all upon any objection to Mr. Appleby's conduct or character, but on purely legal grounds. On Mr. Appleby protesting against his exclusion, the registrar referred the matter to me for my decision in court. The question concerns the order of the court, and its due and effective administration of justice. It concerns the solicitors who practise here, and some of the poorer suitors, as well as the class-I suppose I must call them-of paid agents who thus seek their livelihood. It is quite contrary to the general tradition of English law to allow miscellaneous persons to take part in the proceedings of courts of justice. Parties may appear and be heard in person; but otherwise only professional persons are allowed to appear, and as it is called practise, in the courts. These are either barristers the court in which they act, and certainly officers of the Supreme Court, who are subject to a special authority, or solicitors, who are officers o and responsible to it. The public policy of such exclusive arrangements conduct in those who take part in its proceedings, and to protect ignorant is to uphold the order of every court, to secure a due learning and good suitors from fraud or imposition for worthless services. This, of course, does not mean that all unqualified agents are, as individuals, untrustworthy, or that their services are worthless. But as to the general policy and purpose of the Legislature, the Solicitors Acts and the Stamp Act leave no doubt whatever. Thus, the Solicitors Acts of 1843 and 1860 provide, in effect, that any person not a solicitor, who shall commence or defend any action or sue out any process in the county court, shall not only be incapable to recover any fee or reward by action, but shall be punishable as for a contempt of court, and shall also be liable to a penalty of £50. So the Stamp Act of 1870 enacts that every person who, not holding a solicitor's certificate, directly and indirectly acts as a solicitor in any court, shall forfeit the sum of £50. Paid agents, then, not being solicitors, but acting as such in any of the ways named, are under the ban of the law. So the County Court Acts speak generally of the party or his attorney. In the case of undefended or admitted cases taken before the registrar, the expression used is: "some person duly authorized by the defendant to appear for him" (Act of 1867, ss. 16, 17). The latest general enactment bearing on the subject is the County Courts Act, 1882, 8. 2: "No person other than a solicitor of the Supreme Court shall be entitled to have or recover any fee or reward for appearing or acting on behalf of any other party in any proceeding in a county court." I now come to the special provision contained in the 10th section of the Act of 1852. It is in these words: "It shall be lawful for the party to the suit or other proceeding, or for an attorney in one of her Majesty's superior courts of record, being an attorney acting generally in the action for such party, but not an attorney retained as an advocate by such first-mentioned attorney, or for a barrister retained by or on behalf of the party, on either side, but without any right of exclusive or pre-audience, or, by leave of the judge, for any other person allowed by the judge to appear instead of the party, to address the court, but subject to such regulations as the judge may from time to time prescribe for the orderly transaction of the business of the court." It appears to me that this provision for regulations looks to regulations that may apply not to one class but to all classes of persons, privileged or unprivileged, having audience in the court; rules, in fact, to regulate the general right of audience-for instance, as to the right of reply. However this may be it is only by leave of the judge that other persons, unprivileged persons, may be allowed to appear instead of the party and to address the court. In other words, such leave is to be regarded as a special indulgence in the circumstances of the case, and the judge is to exercise his legal, his judicial discretion. Now it is, I believe, the practice of all county courts to allow the wife of the plaintiff or the defendant, or any member of his family, or a friendly neighbour to appear for him, also to allow shopmen, clerks, and servants to appear for their employers. Such persons are not supposed, nor do they pretend, to render any legal assistance, but they serve the convenience of the suitors, and they are removed from temptation to corrupt or improper dealings in connection with the court proceedings. It appears to me that these are the other persons intended, and that the purpose of the enactment is amply satisfied by giving them permission to appear for absent parties. It also appears to me upon consideration-I say this for myself only - that

though I have the power, I ought not to extend such permission to persons who, as they stand there before me, are, if not under the special ban of the law, at least under its marked discouragement. I can draw no distinction between the ordinary contentious business and undefended cases and judgment summonses. I therefore feel it my duty not to allow in future paid agents to appear or address the court, or give evidence for absent parties.

Counsel for the Incorporated Law Society, Mr. F. W. HOLLAMS.

SOLICITOR STRUCK OFF THE ROLLS.

6th April-WILLIAM STEPHEN FRANCE (Wigan).

LAW SOCIETIES.

INCORPORATED LAW SOCIETY.

right of reply; time of distributing prints of the papers; previous publication of the programme of meeting; admission to the debates of solicitors not yet members; and all other points likely to increase the interest and beneficial influence of these meetings.'

"Mr. R. S. Fraser will call attention to the paper read by Mr. F. K. Munton at the provincial meeting of the society held at Hull in October, 1882, dealing with the unsatisfactory manner in which the work of sheriffs' officers is performed, and to the resolutions passed thereon at such meeting, and will move:

(1) That in the opinion of this society the supervision exercised by undersheriffs over the officers appointed by them is inadequate for the protection of the interests of either creditor or debtor, and admits of grave abuses.' (2) That the duties of sheriffs' officers should be intrusted to men only of proved integrity, and that no person should hold the appointment who has not been previously approved by the High Court.'

[ocr errors]

(3) That, to secure efficiency in the carrying out of the duties imposed on sheriffs' officers, such officers should be subject to the superintendence of a resident inspector in each town or district.'

[ocr errors][merged small]

The following circulars have been issued to all the members of the be by salary only.' Society :

[ocr errors]

"SPECIAL MEETING IN JUNE, 1887.

"I beg to inform you that in pursuance of a resolution passed at the meeting held in York in October last, it has been decided to hold, in London, on the 7th and 8th of June next, the meeting usually held in the provinces annually in October. The proceedings will be as follows: Tuesday, the 7th June.-The president of the Incorporated Law Society will take the chair at 11 o'clock, and the vice-president will deliver the address which, if the meeting had not been anticipated, he would have delivered in October. This will be followed by the reading of papers contributed by members of the society. The meeting will adjourn from 1.30 to 2.30 for luncheon, and close at 4.30.

Wednesday, the 8th June.-The meeting will be resumed at 11 a m., when the reading of papers and discussions thereon will be continued. The meeting will adjourn from 1.30 to 2.30 for luncheon, and close at 4.30. "If you propose to read a paper, I shall be obliged if you will inform me the title and purport of it by the 2nd of May. The paper itself should be placed in my hands on or before the 16th of May, in order that it may be printed for circulation at the earliest possible moment after the close of the proceedings.

[ocr errors]

Subject to the control of the president of the Incorporated Law Society, each member attending the meeting will be at liberty to speak, and to vote upon any matter under discussion; but all resolutions expressive of the sentiments of the meeting will be framed in the form of recommendations or requests to the council to take the subjects of such resolutions into their consideration.

"The preparation for the reception of the country members of the Incorporated Law Society will necessitate the occupation of the Law Society's Hall for this purpose. The meeting will, therefore, be held at the Freemasons' Tavern, Great Queen-street, W.C."

"SPECIAL GENERAL MEETING IN APRIL.

"In pursuance of the resolution passed at the adjourned annual general meeting held on the 15th of July, 1881, to the effect that meetings of the society should be held in January and April, I am directed to inform you that a special general meeting of the members of the society will be held in the hall of the society on Friday, the 29th inst., at two o'clock precisely, to consider the subjects hereinafter mentioned, and of which notice has been duly given :

"Mr. Samuel Day will move the confirmation (in pursuance of the Club Rules No. 41) of the following regulation passed at the special general meeting of the society held on the 28th of January, 1887:-That the following be added to the existing rules of the Law Society Club:-The committee, notwithstanding anything to the contrary in these rules, shall have power, subject to the approbatiou of a majority of the members voting at a general meeting specially called for the purpose, to elect as honorary member any person not being a member of the 'Incorporated Law Society, but that the number of such honorary members shall not at any time exceed twenty, and that such election shall be for a period not exceeding two years, with power of re-election.'

[ocr errors]

"Mr. Charles Ford will move :

(1) This meeting, whilst recognizing the good intentions of the council in the small grants recently made to Liverpool and Newcastle-on-Tyne for educational purposes, is of opinion that these and similar grants should be larger in amount, and should be made without the conditions hitherto imposed by the council.'

(2) That the interests of solicitors and the public require that many public legal appointments, from which solicitors are at present excluded, should be thrown open to them.'

[ocr errors]

(3) That the present practice of striking the names of solicitors off the rolls involves the society in much unnecessary expense, and it is detrimental to the reputation of the profession; and the council are instructed to seek legislative sanction for leaving it optional to the society to make such applications by summons in judges' chambers, with right of appeal.'

(4) That the interests of the society require that at least one of the appointed annual general meetings should be held in the evening.' Mr. Melville Green will move :

'That a committee be appointed to consider and report on the arrangements of the October meetings, and particularly as to choice of subjects; selection of readers and speakers, limiting length of speeches, and giving

[ocr errors]

(6) That all writs of execution should be available throughout England, and be acted on without supplementary warrant.'

'(7) That writs of execution should be marked with the day and hour of issuing, and take priority accordingly.'

'(8) That the fees and charges on executions should be altogether revised, and should be fixed by a scale to be approved by the Lord Chancellor; and a note thereof should be handed to the execution debtor on the occasion of every levy.'

[blocks in formation]

'(11) That gentlemen now filling the office of under-sheriff should have the right of electing to serve the office of inspector in any one town or district forming part of the county for which they now act as undersheriff, and that due compensation should be made to them for being compulsorily deprived of the emoluments now arising from their office for the rest of county.'

(12) That a copy of these resolutions should be forwarded to the Lord Chancellor, the Attorney-General, and the Rule Committee of her Majesty's judges.'

"CHANCERY DIVISION.

Mr. F. K. Munton will move :

'That, in the opinion of this meeting, the appointment of a sixth judge in the Chancery Division is not only imperatively needed, but that the hearing of all chancery causes (with special exceptions) should cease to be associated with any particular judge, and be taken in their order (as set down) by two or more courts constantly sitting for trials only.'"'

SOLICITORS' BENEVOLENT ASSOCIATION.

The usual monthly meeting of the board of directors of this association was held at the Law Institution, Chancery-lane, London, on Wednesday, the 13th inst., Mr. Henry Roscoe in the chair. The other directors present were Messrs. W. Beriah Brook, G. Burrow Gregory, Samuel Harris (Leicester), Edwin Hedger, J. Anderson Rose, Sidney Smith, H. S. Styan, F. T. Veley (Chelmsford), F. T. Woolbert, and J. T. Scott, secretary. A sum of £450 was distributed in grants of relief. three new members were admitted to the association, and other general business was transacted.

LAW ASSOCIATION.

At a meeting of the directors, held at the hall of the Incorporated Law Society, Chancery-lane, on Thursday, the 7th inst.-the following being present:-Mr. Boodle, chairman, and Messrs. Bolton, Clabon, Collisson, Desborough, jun., Dod, Finch, Hedger, Hine-Haycock, Lucas, Nisbet, Sidney Smith, Styan, and Walmisley-the chairman announced the death of the secretary, Mr. Alfred Benjamin Carpenter, and thereupon the appointment was offered to Mr. Arthur Carpenter, who accepted the same, and he was appointed secretary accordingly, and the ordinary general business was transacted.

HALIFAX INCORPORATED LAW SOCIETY.

evening, the 30th ult., when the following officers for the ensuing year The annual general meeting of this society was held on Wednesday were elected:-President, E. M. Wavell, Esq., J.P; Governors, Messrs. M. H. Rankin, J. R. Ingram, and F. Walker; Vice-Presidents, Messrs. K. Walton (the Town Clerk), T. England, and W. Barstow, J P; Hon. Messrs. E M. Wavell, jun., G. Rhodes, J. R. Roberts, E. Booth, L. H. Treasurer, Mr. J. E. Hill; Hon. Secretary, Mr. J. F. Hirst; Committee, Longbottom, W. H. Land, and H. A. Highley.

It was decided to form a law library in connection with the society, and an appeal for subscriptions for this object met with a favourable response from the members present.

The following are extracts from the report of the committee. Incorporation of the Society.-The memorandum of association, as ap

« PreviousContinue »