subject, is the other, the courts often disregard the strict rules of grammar.

The truth is that the law on the subject is left altogether disrupted by the more sweeping construction. If the meaning is that any party liable to be rated but not rated shall, nevertheless, be entitled to the franchise, then if no person is rated at all or the wrong person altogether is rated, still the true occupier is to be entitled as if rated. But then, how about payment of the rates? The condition of the franchise is that the person to be qualified shall only be bound to have paid all rates payable by him in respect of the premises up to the 5th of January. Now, no rates in law can have become payable by him in the cases we have put. It may be answered that if he is to be deemed to have been rated, then the rates must be deemed to have become payable by him. But unfortunately the words are not that he shall be deemed to have been duly rated, notwithstanding the omission of his name, but that he shall be entitled to the franchise notwithstanding such omission. It would only be by a stretching of language that the necessity for the payment of rates would be preserved in such cases. The truth is that the whole machinery of the Poor Rate Assessment and Collection Act was most obviously directed only to cases where the question lay between owner and occupier, and was intended to preserve compositions for the benefit of the parish authorities. It was never intended to interfere generally with the provisions of the franchise Acts, with regard to rating and rates, further than might be necessary to secure the above-mentioned object. We have no hesitation in saying that such slipshod legislation, as that of the 14th section of the new Act, is disgraceful to the Legislature. If it was meant to alter the law as to the necessity for rating in the manner involved by the more sweeping construction of the section, it ought to have been done by direct and sufficiently definite provisions, not by such sketchy language as that such a section should be of general application. In connection with the above remarks the case of Burton v. Town Clerk of Birmingham (48 L. J. C. P. 87), is worthy of consideration. The Common Pleas Division, though they there followed Smith v. Seghill, and affected to distinguish Cross v. Alsop, used expressions which do not by any means make it clear that they considered the necessity for rating in all cases done away with.

TITLES OF NEWSPAPERS AND BOOKS.

III.

Ir is competent to any person, said Lord Eldon, in the first reported case connected with our present subject (Hogg v. Kirby, 8 Ves. 215), perceiving the success of a literary work, "to set about a similar work bona fide his own. But it must be in substance a new and original work, and must be handed out to the world as such." In short, the law does not permit one person to appropriate to himself the fruits accruing to another from the results of his literary exertions. Every person, therefore, who has a particular name or title for a particular periodical or magazine, “by his appropriation and user of the name, acquires a property in that name, and has a right to restrain any other person from using the same name in such a manner as would lead, or be calculated to lead, the public to believe that they are purchasing one thing when, in truth, they are purchasing another." So said Vice-Chancellor Malins in Bradbury v. Beeton (18 W. R. 33); and in the same manner Lord Hatherley, when Lord Justice, in Kelly v. Hutton (16 W. R. 1182, L. R. 3 Ch. 703), said that "the proprietor has a right to prevent any other person from adopting the same name for any other similar publication." Nor is it only in England that this principle is recognized. In a case in the Court of Session (In re Edinburgh Correspondent Newspaper, Ct. of Sess. Cas. 1 ser. I. (new ed.) 407n.), Lord Bal

66

gray stated that the publishers of a certain paper had a right to prevent any paper from being published under such title or form as might mislead the public into a belief that it was the former paper." And the same doctrine is acted upon in America.

There is, in fact, a twofold reason why this should be so, and it was with justice that it was said in the New York Court of Common Pleas, in Matsell v. Flanagan (2 Abb. Er. N. S. 459), that "the enforcement of the doctrine that trade-marks (in which titles are includedthe case was, in fact, one of newspaper title) shall not be simulated, does not depend entirely upon the alleged invasion of individual rights, but as well upon the broad principle that the public are entitled to protection from the use of previously appropriated names or symbols, in such a manner as may deceive them, by inducing or leading to the purchase of one thing for another." It is, in fact, obviously for the public benefit that articles should be purchased for what they are, and not for what they are not.

To set the law in operation, however, it is necessary for the proprietor of the literary property to take the initiative in protecting his rights. And what, then, must he prove to show himself to be entitled to the relief he seeks? It was formerly frequently argued that a positive intention to defraud must be established, that an intentional attempt at deception must be shown; but since the Bell's Life case, if not before it, all such contentions have been abandoned, and "the absence of fraudulent intention is no defence against an application to the court for an injunction by the person whose property has been injured" (per V.C. Stuart, in Clement v. Maddick, 1 Giff. 98.) For the question of infringement of a title is a question of injury to property, and, as such, depends upon the injury done to the property, and not upon the mental condition of the infringer. Yet, although fraudulent intention need not be proved, fraud in a sense there must be for the plaintiff to succeed, for unless a probability of deception-of imposition on the public-is established, there can be no cause of complaint. In this sense, therefore, of actual or probable deception of the public, fraud must be established, but it is only in this sense, and by way of test (Hall v. Barrows, 12 W. R. 322, 4 De G. J. & S. 150).

In determining the question whether deception of the public is to be anticipated, it is the ultimate purchaser who is to be regarded, and it may easily happen that deception would be probable in the case of those who receive the book or periodical to which the title is prefixed after it has passed through several hands, when it would not be probable in the case of immediate purchasers who received the publication direct from the publishers, accompanied by such explanations as they thought fit to make. And, therefore, where a music publisher instructed his shopmen to inform purchasers of a particular song that it was not the original one of the same man, an injunction was nevertheless granted, since the statements made by the shopmen would probably not pass on to subsequent purchasers (Chappell v. Davidson, 2 K. & J. 123).

While a fraudulent intention need not be proved to entitle the proprietor of a publication to a remedy, due weight will, nevertheless, be given to evidence of such an intention, and it may turn the scale when the similarity of the titles is questionable, or influence the costs even when the plaintiff fails to succeed, as in Tallcot v. Moore (13 N. Y. Sup. Ct. 106). deception, as in Matsell v. Flanagan, is, of course, practically conclusive.

Actual

An intention to deceive may be established from an endless variety of circumstances, but among the most usual of such circumstances may be reckoned a general resemblance of the cover, or wrapper, or title-page of the defendant's work to that of the plaintiff's, including, it may be, similarities in colour and other like details (Spottiswoode v. Clarke, 2 Ph. 154; Clowes v. Hogg, W. N. 1870, p. 268, 1871, p. 40; Tallcot v. Moore); &

similarity in the general style and arrangement of the contents of the book itself (Mack v. Petter, 20 W. R. 964, L. R. 14 Eq. 431; Corns v. Griffiths, W. N. 1873, p. 93); a claim of certain attributes which are known to belong to the original work (Chappell v. Sheard, 2 K. & J. 117; Chappell v. Davidson, Ib., 123); a pretence that the defendant's work is a continuation or new series of the plaintiff's (Hogg v. Kirby, 8 Ves. 215; Constable & Co. v. Brewster, Ct. of Sess. Cas. 1 ser. III. 215); a sudden change from an unobjectionable title, style of publication, and arrangement of contents to a style more closely resembling the plaintiff's (Corns v. Griffiths, W. N. 1873, p. 93); a resemblance in the style in which the name is printed (Chance v. Sheppard, V.C.M., July 30, 1869); undue prominence in type given to a catchword (Metzler v. Wood, 26 W. R. 577, L. R. 8 Ch. D. 606).

The

Still, whether there are or are not any circumstances from which an intention to deceive may be reasonably inferred, where a reasonable probability of deception of the public can be established, the proprietor of the publication is entitled to his remedy. Thus, in Hogg v. Kirby (8 Ves. 215), the proprietor of "The Wonderful Magazine" succeeded in stopping the publication of "The Wonderful Magazine, New Series, Improved." In Edmonds v. Benbow (Seton, 3rd ed., 905), the proprietor of The Real John Bull" was held to be entitled to an injunction to restrain the publication of another paper as "The Old Real John Bull." In In re Edinburgh Correspondent Newspaper (Ct. of Sess. Cas. 1 ser. I. new ed., 407n.) the same name was prevented from being used. Jn Constable & Co. v. Brewster (Ct. of Sess. Cas. 1 ser. III. 215, new ed. 152), it was decided that "The Edinburgh Philosophical Journal" was interfered with by the publication of a "New Series of the Edinburgh Philosophical Journal." So in Chappell v. Sheard (3 W. R. 646, 2 K. & J. 117) and Chappell v. Davidson (2 K. & J. 123), where the plaintiff's song was entitled Minnie," and those of the respective defendants "Minnie Dale" and "Minnie, Dear Minnie." So, again, where the purchaser of "The Britannia newspaper incorporated it with the "John Bull," under the name of "The John Bull and Britannia," and the former publisher of "The Britannia" began to publish True Britannia" (Prowett v. Mortimer, 4 W. R. 419, 2 Jur. N. S. 414). In Clement v. Maddick (1 Giff. 98), the plaintiff's newspaper was called "Bell's Life in London," and the defendants' "The Penny Bell's Life and Sporting News." The "London Daily Journal" was too near to the "London Journal" (Ingram v. Stiff, 5 Jur. N. S. 947). So "The United States Police Gazette" to "The National Police Gazette," commonly known as "The Police Gazette" (Matsell v. Flanagan, 2 Abb. Pr. N. S. 459). So "The Bedfordshire Express and General Advertiser for the County " to "The Bedfordshire Express and General Advertiser for the Counties of Cambridge, Hertfordshire, Huntingdonshire, and Middlesex (Chance v. Sheppard, V.C.M., July 30, 1869). In Clowes v. Hogg (W. N. 1870, p. 268, 1871 p. 40), the former proprietor of "London Society began to publish "English Society," and was restrained. Again, in Mack v. Petter (20 W. R. 964, L. R. 14 Eq. 431), the plaintiff's book was called "The Birthday Scripture Text Book," and the defendant's "The Children's Birthday Text Book." In Corns v. Griffiths (W. N. 1873, p. 93), the plaintiff's paper was called "The Iron Trade Circular (Rylands')," and the defend"The Iron Trade Circular (Edited by Samuel Griffiths)." In Metzler v. Wood (26 W. R. 577, L. R. 8 Ch. D. 606), the plaintiff's book was called "Henry's Royal Modern Tutor for the Pianoforte," and the defendant's Henry's New and Revised Edition of Jousse's Royal Standard Pianoforte Tutor"; and, lastly, in Weldon v. Dicks, the tale was in each case styled "Trial and Triumph."

ant's

In all the above cases the infringement was restrained. In some the evidence of premeditated design to benefit

by another's labours was stronger than in others, but irrespective of this the remedy was granted whenever it appeared that the deception of the public was reasonably to be expected. On the other hand, there have been a number of cases in which plaintiffs, who have considered their property to be injured by the conduct of rival publishers, have failed to establish their case in a court of law.

In Spottiswoode v. Clarke (2 Ph. 184), the question was between "The Pictorial Almanack" and "Old Moore's Pictorial Almanack;" in Snowden v. Noah (Hopk. 347), between "The National Advocate" and "The New York National Advocate; " in Bell v. Locke (8 Paige, 75), between "The Democratic Republican New Era" and "The New Era;" in Stephens v. De Cento (30 N. Y. Sup. Ct. 343), between "La Cronica" and "El Cronista." "Punch was the property of the plaintiffs in Bradbury v. Beeton (18 W. R. 33), and "Punch and Judy" of the defendant; in Tallcot v. Moore (13 N. Y. Sup. Ct. 106), the plaintiff's book was "The Little Red Book, New Series, 1875," and the defendant's "The Red and White Book; " and The American Grocer Publishing Association v. Grocer Publishing Company (51 How. Pr. 402), was a similar case. Ledger v. Ray (Ct. of App., May 3, 1877) was a somewhat peculiar case, as the question was not confined to the two titles, "The Era" and "Touchstone," or "The New Era," but Touchstone was also the name of a well-known writer in the plaintiff's paper. And again in Kelly v. Byles (46 L. T. N. S. 623), the plaintiff's compilation was called "The Post Office Directory of the West Riding of Yorkshire," and the defendant's, "The Post Office Bradford Directory."

In these last-mentioned cases it was held that the plaintiff's complaint was not substantiated, and the remedy sought was refused. In some, indeed, evidence of improper motive was not altogether wanting, and in others more or less difficulty may have been experienced in coming to the conclusion that no deception was to be apprehended; but yet, the opinion of the court being adverse to the several plaintiffs, they failed to obtain relief, for where no injury is to be apprehended, no remedy is required.

In Isaacs v. Daly (39 N. Y. Sup. Ct. 511), the motion for injunction was refused on another ground-viz., that the title of the plaintiff's play, "Charity," was a word of such general application that its use by the defendant could not be restrained in the absence of fraud.

Barnard v. Pillow (W. N. 1868, p. 94), was a somewhat different case, as there it was not the actual title of the song which was in dispute, but the words "Song, written by Claribel," which appeared lower down on the title-page, the fact being that the words had been written, but not the music composed, by that author, though in other instances the same author had also composed the music. The court, however, came to the conclusion that no deception was to be anticipated, as the words "written by" were different in signification from the words" written and composed by.' And in this decision Lord Romilly was following the decisions of Lord Hatherley in Chappell v. Sheard and Chappell v. Davidson, that "written by George Linley" was not likely to lead to the supposition that the music was composed by Linley, though he was better known as a composer than as a poet.

The object of the legal doctrines which it has been attempted to elucidate in these articles is, not to protect authors and publishers against wholesome rivalry, or to restrict the sphere of legitimate competition in literature, but to prevent an unscrupulous man from diverting to his own advantage the fruits of another's labour; and the court will not interfere where it is a fair struggle for the public favour in which the parties are engaging, as was laid down and acted on by Vice-Chancellor Malins in Strahan v. King (February 22, 1877), where the proprietors of "The Contemporary Review" endeavoured

but unsuccessfully, to repress the rivalry of the newlyfounded "Nineteenth Century," by attempting to show that the latter was designed to supplant their review by improper misrepresentations. Adequate proof of the plaintiffs' allegations was not forthcoming, and the court declined, as in such case it always does decline, to nterfere.

New Orders, Etc.

RULES OF THE SUPREME COURT.
DECEMBER, 1879.
RULES.

1. These rules may be cited as "The Rules of the Supreme Court, December, 1879," or each separate rule may be cited as if it had been one of the rules of the Supreme Court, and had been numbered by the number of the order and rule mentioned in the margin.

2. These rules shall come into operation on the 22nd of December, 1879.

ORDER XXXV.

3. So much of order 35, rule la, as directs that actions in the Queen's Bench, Common Pleas, and Exchequer Divisions shall not be entered for trial in the district registries is hereby repealed.

ORDER XXXVI.

4. Order 36, rule 15, is hereby repealed, and the following rule substituted.

After notice of trial has been given of any action or issue to be tried elsewhere than in London or Middlesex, either party may at any time before the day next before the commission day enter the action or issue for trial at the next assizes in the district registry (if any) of the city or town where the trial is to be had, or with the associate at the assize town as heretofore.

So long as there is no district registry in the places enumerated in the first of the following columns, entries for trial may be made in the district registries in the second of the following columns, i.e., actions and issues for trial at

Birmingham Southampton.

The entry shall be made in a numbered list to be provided by the district registrar in such vacant number as the party entering shall select, and the list shall be open for the inspection of all parties interested therein at all times during office hours. At the time of entry two copies of the pleadings shall be delivered as directed by order 36, rule 17a, one of which shall be duly stamped with the amount of the fee payable on entry of the cause for trial.

When the trial of an action or issue which has been entered for trial has been postponed or withdrawn under order 23, rule 2, or settled, the party who made the entry shall immediately thereupon give notice thereof to the registrar, and such entry shall be expunged from the list.

The registrar shall close the list and transmit a corrected copy of the said list, together with the two copies of the pleadings, to the associate at the assize town in such time that the same may be received at his office before the opening of the commission.

Causes or issues entered for trial by the associate shall be entered in such vacant numbers in the list so transmitted as the party entering may select. The list shall then be re-numbered consecutively, and shall be the cause list for the assizes.

If both parties enter the action or issue for trial, it shall be tried in the order of the plaintiff's entry, and the defendant's entry shall be vacated.

ORDER XLIA.

AMENDMENTS OF JUDGMENTS.

5. Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court or a judge on motion without an appeal.

ORDER LX.

6. The office of Master of the Supreme Court of Judicature shall be deemed to be substituted for the several offices specified in the first part of the first schedule to the Supreme Court of Judicature (Officers) Act, 1879, and all enactments and documents referring to any of those offices, or to any of the persons holding them, shall, unless the context otherwise requires, be construed and have effect accordingly.

ORDER LXA.

CENTRAL OFfice.

8. It shall be the special duty of one of the masters to be present at, and control the business of, the Central Office, and he shall give the necessary directions with respect to questions of practice and procedure relating to the business of the Central Office. The masters shall select five of their number to discharge this duty in turn, according to a rota to be fixed by themselves.

9. A sufficient number of masters, not being less than three, shall, except in vacation, attend each day at the central office to tax costs. In vacation one master shall so attend. The taxing masters shall be selected according to a rota to be fixed by the masters.

10. Every master, and every first and second-class clerk in the filing and record department, shall, by virtue of his office, have authority to take oaths and affidavits in the Supreme Court.

ADDITIONAL RULES AS TO INVESTIGA-
TIONS INTO SHIPPING CASUALTIES.
THE MERCHANT SHIPPING ACT, 1876, 39 & 40 VICT. c. 80.
THE SHIPPING CASUALTIES INVESTIGATIONS ACT, 1879,
42 & 43 VICT. c. 72.

39 & 40 Vict. c. 80, s. 30.

Whereas, by section 30 of the Merchant Shipping Act, 1876, it was provided as follows:-"The Wreck Commissioners, justices, or other authority holding a formal investigation into a shipping casualty shall hold the same with the assistance of an assessor or assessors of nautical engineering or other special skill or knowledge, to be appointed by the commissioner, justices, or authority out of by a Secretary of State." a list of persons for the time being approved for the purpose

"The commissioner, justices, or authority, when of opinion that the investigation is likely to involve the cancellation or suspension of the certificate of a master or mate, shall, where practicable, appoint a person having experience in the merchant service to be one of the assessors."

42 & 43 Vict. c. 72, s. 3 (1).

And whereas, by section 3, sub-section 1, of the Shipping Casualties Investigations Act, 1879, it was thus enacted:

3. (1.) The list of persons approved as assessors for the purposes of formal investigations into Shipping Casualties shall be in force for three years only, but persons entered in any such list may be approved for any subsequent list. The list of those persons in force, at the passing of this Act, shall continue in force until the end of the year one thousnd eight hundred and eighty, but nothing in this section shall affect the power of the Secretary of State to withdraw his approval of any name on any such list or to approve of any additional name.

And whereas the Secretary of State has directed that the assessors shall, so far as in his opinion circumstances permit, be taken in order of rotation within each class or subclass, and has further directed that the assessors placed by him on the list of assessors, on and after the 31st of March next, shall be classified according to their qualifications, as follows:

QUALIFICATIONS.
CLASSES.

Class I.-Mercantile Marine Masters.

(a.) Five years' service as a master in the merchant service, of which two years must have been service in command of a sailing ship, with a certificate of competency.

(b.) Five years' service as a master in the merchant service, of which two years must have been service in command of a steamship, with a certificate of competency.

Class II.-Mercantile Marine Engineers. Five years' service as an engineer in the merchant service, with a first-class certificate of competency.

Class III-Royal Navy.

Rank of admiral or captain and three years' service in command of one of her Majesty's ships at sea, or rank of staff commander and three years' service in that rank in one of her Majesty's ships at sea.

Class 1V-Persons of Nautical Engineering or other special Skill or Knowledge.

(a) Such qualification as is in the opinion of the Secretary of State requisite for ordinary cases.

(b) Such qualification as is in the opinion of the Secretary of State requisite for special cases.

42 & 43 Vict. c. 72, s. 3 (2, 3).

And whereas it was further provided by section 3, subsections 2 and 3 of the same Act, as follows:

(2) The assessor or assessors for each such investigation shall, instead of being appointed by the commissioner, justices, or other authority holding the investigation, be appointed in such manner and according to such regulations as may be from time to time prescribed by general rules made under section 30 of the Merchant Shipping Act, 1876. 39 40 Vict. c. 80.

(3.) Where any such investigation involves, or appears likely to involve, any question as to the cancelling or suspension of the certificate of a master, mate, or engineer, it shall be held with the assistance of not less than two assessors having experience in the merchant service.

Now, under the authority of the above-mentioned Acts, I, the Right Honourable Hugh MacCalmont, Earl Cairns, Lord High Chancellor of Great Britain, hereby make the following general rules:—

5. If any investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of a master, mate, or engineer, then, in order to satisfy the aforesaid statutory requirement of not less than two assessors having experience in the merchant service, there shall be appointed from the list not less than two assessors from class I. and class II., or from either of those classes.

6. Subject to any special appointment or appoint ments which the Secretary of State may think it expedient to make in any case where special circumstances appear to him to require a departure from these rules (the requirements of rule 5 being always complied with), assessors shall be appointed as follows :

(1.) Where the investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of a master or mate, but not of an engineer, at least two assessors shall be appointed from class I.

(2.) Where the investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of a master or mate of a sailing ship, one at least of the assessors shall be appointed from sub-section (a) of class I, and where the investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of a master or mate of a steamship, oue at least of the assessors shall be appointed from sub-section (b) of class I.

(3.) Where the investigation involves, or appears likely to involve, the cancelling or suspension of the certificate of an engineer, one at least of the assessors shall be appointed from class II.

7. The Board of Trade shall inform the Secretary of State when assessors are required, and shall state from which of the aforesaid classes assessors ought, in their opinion, to be appointed, in order to give due effect to the aforesaid classification and these rules; but the Board of Trade shall not request the appointment of any individual

assessor.

8. An appointment made by the Secretary of State of any assessor or assessors for an investigation shall not be open to question on the ground that it was not in accordance with these rules, or does not give full effect to the requirements of these rules.

9. Whereas it is necessary to make temporary provision for the appointment of assessors until the classification referred to in these rules can be effected. Therefore, rules. 5 to 7 (both inclusive) shall not come into operation until the 31st of March, 1880, and until those rules come into operation the statutory requirements as to the appointment in certain cases of two assessors having experience in the merchant service shall be deemed to be complied with by the appointment of persons who, in the existing list, appear as qualified by service in the mercantile navy.

Dated this 20th day of December, 1879.

CAIRNS, C.

So far as regards the Queen's Bench Division, says the Times reporter, the principal common law division which has the Crown business in addition to the private business, the state of business presents a great contrast to what it used to do of old. There are, we believe, no arrears in the Crown Paper, the important case of prohibition to the Railway Commissioners having been argued, and there being only one or two other cases to be heard. Of the appeals from inferior courts, which are allotted between the three common law divisions, only about seven, we understand, remain of those already entered for hearing. There are sixteen applications for new trials pending, and five special cases. At the Guildhall sittings, the number of cases in the list standing for trial on December 1 was 456. Of that number some 230 have been tried out or withdrawn by the parties, and about 140-including seventy-eight actions against Mr. Albert Grant and Messrs. Clark & Punchard-have been stayed for commissions, &c. Some fifty cases have been made remanets by order or consent, but the only actions which there was no time to try consisted of one special jury and about thirty common jury cases.