« PreviousContinue »
their kegs of white lead “Brooklyn White Lead The Australian Mortgage, Land, and Finance Company Company,” the defendant at first labelled his “ Brook V. Australian and New Zealand Mortgage Company Jyn White Lead, pure, 100 lbs.,” and afterwards (January 17, 1880), in which the Court of Appeal, affirmchanged this to Brooklyn White Lead and Zinc ing the decision of Malins, V.C., refused to interfere Company," and was restrained by injunction. In this with the name of the defendant company, which was case the name lastly adopted was extremely similar to not so similar to that of the plaintiff company as to be that which the plaintiffs used, and the change from the likely to cause deception, besides which it was a more former inscription testified to the defendant's animus. description of the business done by the company, and Besides, the application of the name to the goods sold contained no special catchword. From this review of by the parties, introduced somewhat special considera- the cases will be seen that the measure of success tions. In the case of The London Assurance v. The attained by plaintiff companies has been very moderate London and Westminster Assurance Corporation | indeed, and that litigation in such cases cannot be (Limited) (32 L. J. Ch. 664), Stuart, V.C., did not recommended unless the circumstances pointing to fraud think the case was one in which he would be justified in are unusually strong. The fact is that the choice of granting an injunction ; and in The Colonial Life names by which a new company can desiguate itself, so Assurance Company v. The Home and Colonial as to satisfy the double purpose, of describing the Assurance Company (Limited) (12 W. R. 783, 33 Beav. character of its own operations and distinguishing itself 548), Lord Ronilly, M.R., refused an injunction, and from the companies already in the field, is necessarily said that he considered that the real object of the motion very limited, and the exercise of too great stringency was to obtain a monopoly of the word Colonial.” by the courts might easily result in a monopoly of Next after these cases comes one which has already been various classes of business being practically secured for frequently cited, and which is very much referred to in the old-established companies. practice, that of Lee v. Haley, in which Malins, V.C. (18 The 20th section of the Companies Act, 1862, to W. R. 181), and Lord Justice Giffard (18 W. R. 242, which reference was made above, is in the following L. R. 5 Ch. 155), were of opinion that a limited injunc terms :-“No company shall be registered under a name tion must be granted. There the plaintiffs were coal
identical with that by which a subsisting company is merchants, carrying on business in Pall Mall, under the already registered, or so nearly resembling the same as name of “The Guinea Coal Company,” and the to be calculated to deceive, except in a case where such defendant was a former manager of the plaintiffs', subsisting company is in the course of being dissolved, who set up business in the Strand under the name of and testifies its consent in such manner as the registrar “The Pall Mall Guinea Coal Company," and afterwards, requires; and if any company, through inadvertence or still trading under the same name, removed to Pall otherwise, is, without such consent as aforesaid, Mall, a few doors from the plaintiffs' establishment. registered by a name identical with that by which & The attempt was too barefaced, and an injunction was subsisting company is registered, or so nearly resembling granted, but it was thought that sufficient protection the same as to be calculated to deceive, such firstwould be afforded to the plaintiffs by restricting the mentioned company may, with the sanction of the prohibition to Pall Mall, and the injunction was accord registrar, change its name." This section was fully coningly limited in that respect. In Holmes, Booth, & sidered by the Master of the Rolls in the Merchant Haydens v. The Holmes, Booth, and Atwood Manufac Banking Company's case, in which it was much relied turing Company, two of the principal promoters of the upon by the plaintiffs. Both companies had there been plaintiff company left it, and established the defendant registered, the defendants' name having been selected by company, under a title in which their own names were again the registrar from several submitted to him, and the very prominent. The circumstances connected with the Master of the Rolls laid down that, after registration, formation of the defendant company could not be over the prohibitive provision in the clause did not apply, looked, and the Supreme Court of Connecticut restrained since that was only aimed at the registration of similar the use of the two names. The list ends with four more names, and that where the registration had once been cases which have come before the Chancery Division effected, the Act no longer applied, and the case might be within the last few months, in all of which the plaintiffs treated independently of the Act, and simply with failed. In The London and County Banking Company regard to the probability of deception. The section, he V. The Hampshire and North Wilts Bank (June 7, explained, would prevent the registration of similar 1878), the Master of the Rolls declined to restrain the names for companies, though they carried on quite defendants from changing their name to that of “ The different businesses, but when such cases were brought Capital and Counties Bank,” thinking that deception was before the court apart from the Act, there would be no not probable. In The Merchant Banking Company of equity to entitle the one to interfere with the name of London (Limited) v. The Merchants' Joint Stock Bank the other, since the companies would not clash in their (26 W. R. 847, L. R. 9 Ch. D. 560), after dealing with operations. the provision in the Companies Act of 1862, which will It seems that the name of a company may be registered be noticed presently, the Master of the Rolls again as a trade-mark under the Trade Marks Registration thought that deception was not probable, and refused Act, 1875, though, when the name was not used as & the motion. And it is worthy of note that he specially trade-mark before the passing of the Act, it would have adverted to the fact that the plaintiff company carried to be "printed, impressed, or woven in some particular on business in Cannon-street, and the defendant com. and distinctive manner.
By the United States Tradepany had taken premises in Bloomsbury, which went Marks Registration Act, 1870, the Commissioner of far to nega the probability of an intention to appro Patents was prohibited from receiving and recording any priate the plaintiffs' business. In fact, in this respect proposed trade-mark which was
merely the name of a this case may be advantageonsly contrasted with Lee v. person, firm, or corporation only,” but this probibition Haley. Then in The Armyand Navy Co-operative Society was qualified by the proviso that the section should not v. The Junior Army and Navy Stores (Limited) (January "prevent the registry of any lawful trade mark rightfully 17, 1879), again before the Master of the Rolls, the latter used at the time of the passing of the Act." Under was of opinion that the prefix of the word “junior” to this proviso it has been decided (In re India Rubber the defendants' name was quite sufficient to prevent Comb Company, 8 U. S. Off. Pat. Gage, 905; In qe deception, and he laid stress on the fact, peculiar to this Rubber Clothing Company, 10 Ib. 111) that the names case, of the customers of the plaintiff society belonging of corporations may be registered when they were in to a special class, since by the rules of the society they actual use as trade-marks on July 8, 1870. It is true must be shareholders, or persons introduced through that the American Trade-Marks Registration Act has shareholders, and must, therefore, be well aware of been recently declared by the Supreme Court the identity of the two societies. The last case is United States to be void, as having been enacted out
side the limits set for the Legislature by the Constitution | fines, and the procedure for the recovery of civil of the United States ; but it seems probable that steps | debts, such as rates [. 6, 35]; in the latter will, before long, be taken by which the Act will be case the proceedings are of a civil nature." Mr. substantially re-enacted.
Kennett also, we are glad to observe, draws attention to the violation of the spirit, if not of the letter, of the Act which is involved in the appointment of the
house of a magistrate as an occasional court-house. The Rebie ws.
intention of the enactment that a case shall be tried “in
open court” is obviously to secure a trial in a public TORTS.
place where the prisoner's friends may know that he is
to be tried. Turning to the body of the work, we find WRONGS AND THEIR REMEDIES; BEING A TREATISE ON the provisions of the Summary Jurisdiction Act carefully
THE LAW Of Torts. By C. G. ADDISON. Firth | inserted and explained. On the subject of section 25, EDITION, by Lewis W. Cave, one of her Majesty's with regard to which some learned writers on the Act Counsel. Stevens & Sons.
have raised a doubt whether the defendant may give Mr. Cave has re-arranged his matter, and by omitting
evidence on oath, we observe that Mr. Kennett adopts the parts of the last edition which related to questions of the same view which we took, and holds that the words pleading and the rights and duties of bailors and bailees
" as in the case of any other complaint” refer only to inter se, the duties of carriers in conveying goods, and
the liability to costs. The care and accuracy with which distress for rent, he has considerably diminished the the book has been edited are shown by the fact that the bulk of the present edition. The arrangement of the section relating to police proceedings for penalties in matter on the single basis of the nature of the right relation to dogs which was embedded in the Customs infringed is an unquestionable improvement in the
and Inland Revenue Act of last session is to be found framework of the book ; the next matter needing reform duly noticed at page 117. is the mode of filling up this framework. We cannot say we are altogether satisfied with the mode in which some of the recent cases have been dealt with. Thus, at p. 338, Hurdman v. North-Eastern Railway Company General Correspondence. (26 W. R. 489), is treated as if it involved the same con. siderations as Fletcher v. Rylands (L. R. 3 H. L. C. 330). The well-known statement of principle in the last-men
To CORRESPONDENTS. All letters intended for publicationed case is first cited : “ A person who, for his own
tion in the “ Solicitors' Journal” must be authenti
cated by the name of the writer. The Editor cannot purposes, brings upon his land, and collects and keeps there, water in such quantities as to be likely to do mis.
undertake to return MSS. forwarded to him. chief if it escapes," &c., and then follows the decision in Hurdman's case, introduced with a “Thus if any one,"
MORTGAGE OF LAND IN NEW ZEALAND. &c. Now, it is to be observed that in Hurdman's case the
[To the Editor of the Solicitors' Journal.] defendant did not bring upon his land, and collect and keep on his land any water. Again, on p. 333, the
Sir, — As a subscriber to your journal, I shall doctrine in Fletcher v. Rylands prefaces a statement of
feel obliged to you if you will inform me whether, in the decision in Firth v. Bowling Iron Company (26
New Zealand, there is any land registry which requires a W. R. 558). Surely some attempt should have been
mortgage of land there to be registered. made to point out that the bearing of this case on
I am advancing to some clients in England money Fletcher v. Rylands is merely to sbow what may be the
upon the security of their share in certain real and lease. natural consequences of the escape of dangerous or
hold property in New Zealand, and am anxious to know
whether, as a matter of fact, it will be necessary that the noxious matters maintained on lands, on to a neighbour's land. Again, the case of Western Counties Manure
mortgage should be registered in New Zealand. Company v. Lawes Chemical Manure Company (23
The facts are that a mortgage of a share in proW. R. 5) should, we think, have been made the subject
perty in New Zealand, was executed on the 20th of a separate head, “Slander of Goods,” following Slander
of October, 1877, and not registered, and a further of Title, instead of being mentioned in the first chapter.
charge, indorsed on the same mortgage, was executed on We observe with some surprise that no mention is made
the 28th of September, 1878, also not registered, and a of Angus v. Dalton (27 W. R. 623); this case should,
further charge by separate deed is now about to be at least, have been cited as supporting Bower v. Peate
executed. The point is whether, if registration is (L. R. 1 Q. B. D. 321). We are bound, however, to say
necessary, the last charge can be registered without the that, on the whole, the work has been brought into a
previous mortgage and charge, or either of them, being better shape than any in which we have formerly known
registered. If so, what is the form required on the it, and that the effect of the statutory changes has
registration ? Must there be a memorial executed here, been noticed with care.
as in registering deeds in Yorkshire, or in the Middlesex Registry, or must the original mortgages and further
charges be sent to New Zealand for registration ? STONES JUSTICES MANUAL.
E. S. THR JUSTICES' MANUAL; OR, GUIDE TO THE ORDINARY Manchester. DUTIES OF A JUSTICE OF THE PEACE, &c. By the late
[The New Zealand Land Registry Act (24 Vict. No. SAMUEL STONE, Esq. The TWENTIETH EDITION. Edited
27) provides for the registration of mortgage deeds by GEORGE B. KENNETT, Esq., Solicitor. Shaw &
(section 35), and enacts (section 37) that "registered Sons.
charges on the same land shall take priority of all un. Mr. Kennett has prefixed to this edition of Stone a registered charges, and as between themselves shall rank preface in which he deals in a very decided and useful according to the order in which they are entered in the way with some of the difficulties which have been raised register, and not according to the order in which they on the Summary Jurisdiction Act, 1879. He differs are created." It seems from the Land Registration from Mr. R. S. Wright's opinion that the Act has no Ordinance of 1841 that the mode of registration is to application to rates, and points out that the Home Office present the instrument for registration, but we can find is evidently of opinion that the Act extends to rates, or no recent information on the subject. -Ed. S. J.) the circular to justices' clerks (to which we recently referred), would not have said “The Act draws a distinction between the procedure for the recovery of I
declaration that the order of adjudication was not to prejudice Cases of the u0eek.
the right of the appellant to prosecute the first petition, and ordered that all proceedings under the adjudication on
the second petition should be stayed until after the first GENERAL POWER OF APPOINTMENT BY WILL-EXERCISE petition should have been heard and disposed of. A trustee BY WILL OF PRIOR DATE-WILLS ACT (1 Vict. c. 26), ss. had been appointed before the appeal was heard by the Chief 24, 27.-In a case of Boyes v. Cook, before the Court of Judge. The Court of Appeal (JAMES, Brett, and Cotton, Appeal on the 12th ingt., the question arose whether a L.JJ.) held the county court judge had full jurisdiction, under general power of appointment by will
, oreated by a deed, rule 48, to hear the second petition first, and to make an bad been executed by a will of prior date. In October, adjudication on it. And they said that the first creditor had 1860, a husband made a will by which he devised and adopted an entirely wrong course of procedure. He had no bequeathed bis real estate and the residue of his personal right to appeal against the adjudication. He was not a estate to trustees, apon trust for the benefit of bis wife person aggrieved by the order of adjudication within the and children, in April, 1861, differences having arisen meaning of section 71. An adjudication was the very thing between the husband and wise, a separation deed was
he was asking for himself. What he was really aggrieved executed, by which the husband vested the balk of bis by was that the conduct of the proceedings under the property, real and personal (the real estate to be converted adjudication up to the appointment of a trustee would be in the into money) in trustees, upon trusts for the benefit of him. hands of the second petitioner and his solicitor. But that self, his wife, and children. The trust as to one-third of did not give him a right to appeal against the adjudication. the settled property was, to pay the income to the husband
His proper course would have been to apply to the county for his life, and after his death to hold that one-third opon
court judge to give bim the conduct of the proceedings under trust for such persons as be should by will appoint. The
the adjudication, and there was full jurisdiction to do that busband died in 1875, without having revoked or altered
in a case where a second petitioner had procured the hearing the will of 1860, and the question arobe whether that will
of his petition first by collusion, just as the Court of Chancery was an exercise of the power given by the settlement.
was in the babit of giving the conduct of an administration Maling, V.C., held that the power bad not been exercised
decree to a creditor who had first instituted a suit, when 8 by the will
. He was of opinion, following his own decision creditor, who had come into the field later, had obtained the in the case of In re Ruding's Settlement (20 W. R. 936, applied to adjudications of bankruptcy. But, a trustes having
decree by collusion with the executors. The same principle L. R. 14 Eq. 266), that the court ought to have regard to the circumstances existing at the time when the settlement
been now appointed, it was too late to give the conduct of the
proceedin to the first creditor. And, as he had adopted a was executed, and that those circumstances showed that the testator could not have intended the will to be an
wrong course, he must pay the costs of both appeals. The exercise of the power, The Court of Appeal (JAMES, allowed out of the estate of the bankrupt.-SOLICITORS,
first petition must be dismissed, but the costs of it would be BRETT, and COTTON, L.JJ.), held that, in construing the Layton f. Jaques ; Nash & Field. will, the only surrounding circumstances which could be looked at were circumstances existing at the time when the will was executed, and they reversed the Vice-Chan. cellor's decision, bolding that the will had exercised the
TRADE-MARK-REGISTRATION—“ SPECIAL AND DISTINC. power; thus in effect overruling In re Ruding's Settlement. TIVE WORD"-TRADE-MARKS REGISTRATION Act, 1875 --SOLICITORS, Munton & Morris ; Lewis & Inder maur ; (38 & 39 Vict. c. 91), ss. 2, 10.-In a case of In re The Saunders of Baker.
Royal Baking Powder Company, before the Court of Appeal on the 12th inst., the company bad applied for the regis
tration of the word “Royal" as tbeir trade mark in rePRACTICE A DJUDICATION BANKRUPTCY — Two spect of baking powder, baking compound, or feast PETITIONS--HEARING of Second PETITION First-COLLU- powder. The registrar refused to register the word SION-POWER OF COURT OVER CONDUCT OF PROCEEDINGS Royal” alone, and his refusal was affirmed by Bacon, APPEAL — " PERSON AGGRIEVED” BANKRUPTCY Act, V.C. The ViceChancellor's decision was affirmed by the 1869, s. 71-BANKRUPTCY RULES, 1870, R. 48.-In a case Court of Appeal (JAMES, BRETT, and Cotton, L.JJ.). Bat of Ex parte Mason, before the Court of Appeal on the 11th their lordships intimated an opinion that an application inst., a question arose as to the practice in bankruptcy when for the registration of the words Royal Baking Powder " two or more petitions are presented by different creditors as a trade-mark might have been taken into consideration. against the same debtor. Rule 48 of the Bankruptcy Roles, ---SOLICITORS, Duffield & Bruty ; Solicitor to the Treasury. 1870, provides that “where two or more petitions are presented to the san:e court against the same debtor, the petition wbich was first presented shall be heard first; and where such first petition shall not have been served, or where
OWNER OF FORESHORE-RIGHT TO REMOVE SAINGLEthe debtor shows cause against the petition, or where delay DEFENCE OF THE REALM AGAINST THE SEA-PREROGATIVE will be avoided, any other petition which has been served AND DUTY OF CROWN.-In a case of The Attorney-Genera! may be heard, and, if the court makes adjudication thereon, v. Tomline, before the Court of Appeal on the 13th inst., an the court shall, after the expiration of the time allowed for important and apparently novel question arose with regard to appeal against the adjudication, dismiss all the other petitions the right of the owner of the foreshore to remove a natural upon such terms as to costs as it shall deem just." Two bank of shingle which protects the adjoining land from thə bankruptcy petitions were presented in a county court inroads of the sea, and as to the prerogative and duty of the against a debtor on the 18th of December, both petitions Crown to preserve the realm from those inroads. The action, alleging as the act of bankruptcy that the debtor had filed
which was an information by the Attorney-General on behalf a liquidation petition, the proceedings under wbich had of the Crown, and an action by the Secretary of State for proved abortive. The petition which was filed first was War, as plaintiff, arose thus:-The Secretary for War was presented by a hostile creditor; the second petition was
the owner in fee simple, in trust for the Crown, of the site of presented by a creditor for whom the same solicitor acted & martello tower and the inclosure surrounding it. This land who had acted for the debtor in the liquidation proceedings. immediately adjoined on one side the shore of the estuary of When be filed the second petition he knew of the filing
a tidal river. The defendant was the lord of the manor, and of the first. The registrar appointed the 8th of January the owner of the foreshore. The plaintiff's land was below for the hearing of both petitions. The first petition was not
the level of the sea at high-water in spring tides. The land served on the debtor till late in the evening of the 18th of
was protected from the inroads of the sea by a natural bank December. Meanwhile, the second petition was served, and
of shingle which formed part of the foreshore. The defendthe debtor, under the provisions of rule 42, consented in ant had been removing shingle from this bank, and, in conwriting to an immediate adjudication, and an adjudication sequence of the removal, the sea had overflowed the plaintif's was accordingly made on the second petition before the first
land. The plaintiff claimed an injunction to restrain the petition had been served. The first petitioner appealed to the
further removal of shingle by the defendant so as to endanger Chief Judge against the adjudication, alleging himself to be the plaintiff's land or to expose it to the inroads of the sea. a person aggrieved by it. There was evidence that the Fry, J., was of opinion (28 W. R. 76, L. R. 12 Ch. D. 214) adjudication had been obtained by collusion between the
that it is part of the prerogative of the Crown, and that it is debtor and the second creditor. The Chief Judge made a
consequently the duty of ihe Crown, to preserve the realm
from the inroads of the sea. The law must take cog- 16 Vict. c. 83, s. 54. The question, therefore, was to be nizance of this duty of the Crown, though it could not determined upon the true construction of the letters pateut enforce the performance of the duty. But, if this themselves. It was upon that construction that Elmslie v. duty existed, it was impossible to suppose that | Boursier was decided. Their lordships saw no reason to the subject should be at liberty to destroy that doubt the conclusions there arrived at-viz., that the sole which the Crown was bound to protect. His lordship, right granted by the Crown to make, use, exercise, and vend: therefore, granted the injunction claimed. The Court of the invention within the United Kingdom, and the right to Appeal (JAMES, BRETT, and COTTON, L.JJ.), affirmed the have and enjoy the whole profit, benefit, commodity, and decision on the same ground. JAMES, L.J., said that in his advantage accruing and arising by reason of the invention, opinion it was the duty rather than the prerogative of included a monopoly of the sale in this country of products the Crown to preserve the realm from the encroach- made according to the patented process, whether made in ments of the sea, and, if so, it was its duty to protect the realm or elsewhere. Any other construction would, in the land, not only by erecting artificial walls where the case of any really valuable invention of a process, render that might be necessary, but also by keeping up the the whole privilege granted by the Crown futile. At the natural protection of a bank of great geological antiquity. time when patents extended only to England, an imitator The bank in question was, therefore, under the protection of would only have had to establish his factory on the other the Royal prerogative in this sense, that any person remov. | side of the border, and now such an imitator would only ing the bank, so as to prevent the Crown from performing have to establish his factory at Boulogne or Ostend, and he its public duty, would be doing an unlawful act, in the same would effectually deprive the inventor of the “whole profit, way as it would be an unlawful act to interfere with an benefit, commodity, and advantage" of his invention. And, artificial sea wall which it was the duty of the Crown to the more valuable the invention the more certain it would maintain. Such an act would be in the nature of a nuisance, be that the prohibition in the letters patent would be thus and any person who was injured by it was entitled to call indirectly avoided-that, is evaded. The appeal was accordupon the court to restrain it. It had been contended before ingly dismissed. — SOLICITORS, Luinley og Lumley; Van Fry, J., that the defendant was only making a natural use Sandar di Cumming. of his land, and that, by analogy to the cases relating to mining operations, a neighbouring landowner could not complain of such a use of the defendant's land, even though PRACTICE-Service OUT OF THE JURISDICTION-CONTRACT the result of it was to divert water on to the plaintiff's land. | MADE WITHIN THE JURISDICTION-MORTGAGE OF SHIPAnd in this point of view Fry, J., was disposed to think Okd. 11, R. 1.-On the 17th inst., the Court of Appeal rethat the defendant was justified in what he was doing. But versed the decision of Bacon, V.C., in the case of McStephens JAMES, L.J., said tbat he thought the authorities as to the v. Carnegie (28 W. R. 385). The question was as to the legal rights and liabilities of landowners in relation to sub-propriety of an order which had been made in chambers, giving terranean works threw no light upon the case of a visible the plaintiffs leave to serve notice of the writ in the action upon baok operating as a protection against the inroads of the some defendants who were foreigners out of the jurisdiction. ocean. The two matters were so remote that the authorities The plaintiffs, MoStephens & Co., were the first mortgagees Telating to the one did not supply any safe analogy as to the of a British ship. The defendant Carnegie was the second other. The appeal was accordingly dismissed.-SOLICI TORS, mortgagee. In June, 1877, the ship arrived at Antwerp W. Tindal Perkins ; W. F. Stokes.
from the Mediterranean, with a cargo consigned to some merchants there, and after she had discharged ber cargo she
came to London. The consignees refused to pay the freight, PATENT-INFRINGEMENT-SALE IN ENGLAND OF GOODS
and the master of the ship, on behalf of the owners, sued MANUFACTURED ABROAD.-In a case of Von Heyden v. Neu
them in the Belgian court. An order for payment was stadt, before the Court of Appeal on the 15th inst., a made, and 10
made, and in July, 1878, the freight was paid to Ruys & Co., Destion as to the infringement of a patent arose appar
of Antwerp. The plaintiffs said that it was paid to Ruys & ently for the first time in that court. The plaintiff was the
Co, as the ship's brokers; the defendant Carnegie said that owner of an English patent, and he manufactured and sold
it was paid to them as his agents. In June, 1877, the master in England goods made according to the patented process.
of the ship had commenced an action against the owners in The defendants imported from Germany, and sold in
the Admiralty Division for wages and disbursements incurred England, goods made according to a process which was,
by him on the voyage. McStephens & Co, intervened in this as the court held upon the evidence, an infringement of
.action, and in September, 1877, the ship was sold, and, the plaintiff's patent. Bacon, V.C., granted an injunction |
| after satisfying the claim of the master, the balance was to restrain the defendants from thus infringing the plain
"I paid to McStephens & Co. in part discharge of their mort
gage. A considerable balance, however, remained due to tiff's patent. In the course of the argument of the appeal
them. Their mortgage contained no express assignment of the court suggested a doubt whether, if an English patent
the freight to them. They had also paid a sum of £220 for is granted for a process only, and that process is imitated
wages of the crew of the ship. By the present action they abroad, the importation of the product so made abroad and the sale of it in England is an infringement of the
claimed to have the freight paid to them in further discharge of
unpaid balance of their mortgage debt, and in payment of patent. In delivering the judgment of the court (JAMES, BRETT, and COTTON, L.JJ.), JAMES, L.J., said that it had
what they had advanced for wages. Rays & Co. claimed to
retain the freight, and satisfy a debt due to them by Carnegie. already been decided by himself, when Vice-Chancellor, in
The Vice-Chancellor held that the plaintiffs were seeking to Elmslie v. Boursier (18 W. R. 665, L. R. 9 Eq. 217), that
enforce a contract made within the jurisdiction, and that, such an importation and sale was an infringement, and
therefore, rule 1 of order 11 gave jurisdiction to allow service that decision was approved of, adopted, and followed by on Russ & Co. out of the jarisdiction. The Court of Appeal the Court of Exchequer in Wright v. Hitchcock (L. R. 5 (JESSEL, M.R., and Brett and Cotton, L.JJ.) held that Ex, 37). Those decisions bad never been questioned, and the plaintiffs' claim was not founded on contract at all, but their lordships saw no ground for digsepting from them. was founded either on their right to take possession of the It was true that the Statute of James only mentioned “ the ship, which was an incident of their ownership as mortsole working or making of any manner of new manufactare
gagees, or on an equitable right to contribution in respect within this realm." But that statate gave no right to the of what they had paid for wages, and on an equitable right to inventor: it was a statute for abolishing and forbidding the marshalling of securities. Consequently, rule 1 of order monopolies, and the 6th section, under which the Crown | 11 did not apply. The order for service was accordingly acted in granting patente, was a mere proviso excepting discharged. -SOLICITORS, Lyne & Holman; W. W. Wynne. from the operation of the Act certain patents or grants of privileges, which were to be “of such force as they should be if this Act had never been made, and of none other." Every patentee derived his monopoly from the ancient power and PRACTICE-ARBITRATION-- AGREEMENT FOR SUBMISSION prerogative of the Crown thus saved and preserved. What TO BE MADE A RULE OF DIVISIONAL COURT-RULE OF the Crown could lawfully do, and had lawfully done, after QUEEN'S BENCH Division-MOTION IN CHANCERY DIVISION that statute, was shown by the uniform tepor of the letters to SET ASIDE AWARD.-In a case of In re Lomar's Arbitrapatent which had been since issued, the validity of which tion, before the Master of the Rolls on the 12th inst., had never been called in question, and that form of letters an agreement was made between the parties by which all patent bad now been expressly authorized by the Act 15 & matters in difference were referred to an arbitrator, and it
was agreed that he should exercise all the powers given by the two tonements; (4) a wall divided longitudinally into the Common Law Procedure Act, 1854, to a sole arbitrator, wo moieties, belonging to the two owners respectively, each and it was provided that the submission should be made a rule moiety being subject to a cross-eagement in favour of the “of any divisional court of the High Court of Justice.” By other owner. If the second meaning was given to the an order made on the 31st of Jangary, 1880, and entitled words, this difficulty would arise, that each owner would “In the High Court of Justice, Queen's Bench Division," it be entitled to pare away his own moiety of the wall, and was ordered that the agreement should " be made an order the moiety that was left might be of very little use to the of this division.” The arbitrator baving made his award, other owner. And, even if the wall belonged to the two asa motion was now made before the Master of the Rolls to set joint tenants, it might be partitioned longitudinally, and it aside, and the preliminary objection was taken that the i then the same difficulty would arise. However, the cases motion should have been made in the Queen's Bench of Wiltshire v. Sidford (1 Man. & R. 404) and Cubitt v. Division. In support of the motion reliance was placed Porter (8 B. & C. 257) showed that the first was the primary upon the statute, which enables the parties to agree and ordinary meaning of the words, and his lordebip bad that their submission may be made a rule of any court of come to the conclusion, on the oonstruction of the convey. record, and it was submitted that there was no court of ance, that the words were used in that senge in the present record except the High Court of Justice, and, therefore, that and that being so, the cages of Cubitt v. Porter (8B. the motion would rightly be made in any branch of the & C. 257) and Stedman v. Smith (8 E. & B. 1) showed that High Court. Jessel, M.R., said that though the agree the plaintiff was not entitled, without the consent of the ment would have been more properly worded if it had defendant, to raise the height of the party-wall, and that the provided that the submission should be made a rule of the
defendant's only remedy was to koock down the new High Court of Justice, Queen's Bench Division, still that
brickwork. The plaintiff was therefore not entitled to the the objection to the motion was a good one, and that the relief wbich he claimed.-SOLICITORS, E. Peacopp; Hope & parties, under the Judicature Act, conld make the submission
Co. à rule of any division which they thought fit. As the submission had been made a rule of the Queen's Bench Division, he considered the application to set aside the award ought PRACTICE-NOTICE TO THIRD PARTY BY DEFENDANTalso to be made in that division, and he therefore refused the ORDER POR DIRECTION-POWER OF MASTER AS TO Costsmotion. As it was intimated that the motion would now be ORD. 16, RR. 18, 19, 21.-In The Yorkshire Wagon Company made in the Queen's Bench Division, he said he should dis v. The Newport, fc., Coal Company, application was made miss the motion, with costs, except the costs of the evidence. on the 15th inst., to set aside an order of Lush, J., „SOLICITORS, Dollman & Pritchard (for Boote & Edgar, | under the following circumstances:--The action was brought Manchester); Pritchard, Englefield, & Co.
to recover possession of certain railway wagons. The defendants, on the action being brought, gave notice, under
ord. 16, r. 18, of the Judicature Act, to a third party, from PRACTICE_TAXATION-COSTS TO BE THOSE OF SUCCESS
whom they (the defendants) had purchased the wagons, that JUL PARTY IN ANY EVENT-INTERLOCUTORY APPLICATIONS.
they should hold them liable. The third party appeared, In a case of Jackson v. Wood, before the Master of directing, amongst other
things, that " all costs should be left
and an order was made by a master under ord. 16, 1. 21, the Rolls on the 12th inst., a motion was made seeking to discharge an order for discovery of certain letters alleged to subsequently gave notice to a fourth party, from whom the
to the discretion of the judge at the trial.” The third party be privileged, on the ground that they had been written by third party had purchased and who appeared, and
a similar the plaintiff to an intended witness for the purpose of order was made by the master with regard to the fourth getting up evidence for his case. JESSEL, M.R., refused the motion with costs, on the ground that the affidavit in party. The fourth party thereupon gave notice to a fifth opposition to the summons for discovery was not sufficient likewise appeared and with regard to whom the master
party, from whom the fourth party had purchased, who to bring the case within Anderson v. Bank of British again made a similar order. At the trial a verdict in Columbia (24 W. R. 624, L. R. 2 Ch. D. 644). It was asked
taken for the defendant on the evidence of the fifth by the defendant that the costs might be immediately taxed and paid, as a previous summons by the defendant had been
party, who proved a bona fide sale to himself of the wagons dismissed, with costs to be at once taxed. Jessel, M.R., by the vendor to the plaintiff
, anterior to the sale of them to the plaintiff, which
a fraudulent act said that the previous order must have been drawn up inadvertently, as his practice was now, except under special tried, made an order, at the trial, that the costs of the
of the vendor. Lush, J., before whom the action was circumstances, to make the costs of all interlocutory applica- fourth and fifth parties should be borne by the third tions those of the successful party "in any event," so as to avoid more than one taxation. The costs of the present the learned judge made an order that the defendants should
party. Subsequently, on the application of the third party, application would, therefore, be the defendant's "in any event."-SOLICITORS, Bower of Cottun ; Layton & Jaques.
pay all the costs of the third party, including those costs of the fourth and fifth parties, which they had been previously ordered to pay. Against this order the defendants now appealed, and
contended that it was ultrà vires, and if not it was wrong on PARTY-WALL-RIGHTS OF ADJOINING OWNERS—TRESPASS. the merits. The court (COCKBUKN, C.J., and Lush and - In a case of Watson v. Gray, before Fry, J., on the 11th MANISTY, J.J.) granted the application, on the ground that inst., a question arose as to the meaning of the term the orders of the master leaving the question of costs to the "party-wall," and the rights of two adjoining landowners judge at the trial, and from which he derived his jurisdic
. with respect to a wall which had been thus designated. tion, were ultrd vires. The master had no power under ord. The plaintiff and the defendant were the owners in fee of 16, r. 21, to make terms imposing costs on others than those two adjoining houses. Each of thom had acquired bis prop who applied in each case under that order.-SOLICITORS, erty by purchase from the same common owner of both, the Keighley & Gething; E. Doyle ; Hunt f Sons. conveyance to the plaintiff being the earlier in date. At the back of each of the houses was a yard, and the two yards were divided by a wall. The conveyanco to the plaintiff contained a declaration that this wall should be and
Obituary. remain a party-wall. The plaintiff bad commenced build. ing a shed in his yard, and bad, for the purpose of snpporting the roof of this sbed, placed some new brickwork on
MR. JOHN OSTELL. the top of the party-wall. The defendant bad knocked Mr. John Ostell, solicitor, died at his residence, 3, Cavendown this brickwork. The plaintiff claimed an injunction dish-place, Carlisle, on the 9th inst. Mr. Ostell was a native and damages. Fry, J., said that the term “party-wall” of Carlisle, and was born in 1829. He served his articles
, of Carlisle, and was admitted a two adjoining owners were tenants in common ; (2) a wall solicitor in 1851. He had practised in the city of Carlisle divided longitudinally into two moieties, one belonging to for about twenty-eight years, and had a very good business. each adjoining owner ; (3) a wall belonging
exclusively to A few years ago he succeeded the late Mr. Daniel MoAlpin in one of lhe owners, but subject to an easement in the other the office of clerk to the city magistrates, and held that office to have the wall maintained as a dividing wall between until his death. His accurate legal knowledge and the sound