The managing director of the "Kelvindale Chemical Company" severed his connection with that company and started a similar business in the same neighbourhood under the name of the "Kelvinside Chemical Company." The evidence led went to show that the similarity of the names had led to inconvenience through misdirection of correspondence, but the Court held that the pursuer, who sought interdict, had failed to establish that the name chosen by the defender was calculated to mislead his customers or to divert his business. The Sheriff-substitute, before whom the case first came, and afterwards the Sheriff on appeal, granted the interdict, but the Court recalled. Lord Skerrington said :—“It is trite law that, apart from statute, there can be no right of exclusive property in a name, either a name under which a trader carries on his business or a name which he chooses to apply to his goods. The remedy which the law gives to a person who has used a particular name in trade is, that he is entitled to prevent others from using the same name in such a way as is likely to mislead the public into thinking that the business or the goods so described, is or are the business or the goods of the pursuer."

The Companies (Consolidation) Act 1908 provides (sect. 278), that "where a limited company is plaintiff or pursuer in any action or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by credible testimony that there is reason to believe that the company will be unable to pay the costs of the defendant if successful in his defence, require sufficient security to be given for those costs, and may stay all proceedings until the security is given." This provision is practically the same as that in sect. 69 of the Companies Act 1862, which is now repealed. It may be noted, that although, since the date of the Act of 1862, the section has been frequently

applied against plaintiffs in England, there was, until now, no reported case of a similar judgment in Scotland. The case now referred to is New Mining and Exploring Syndicate Limited v. Chalmers (46 S. L. R. 1002). In point of fact, the earlier case of Horn v. Tangyes ([1906], 8 F. 475), involved exactly the same question, and the same judgment was given, but the report only deals with a preliminary finding as to the competency of the appeal from the Sheriff Court to the Court of Session. It is not to be assumed, however, that prior to 1906 the statutory provision was never brought before the Scottish Courts. On the contrary, the section was frequently pleaded, but, chiefly on account of the existence of counter-claims (rendering it difficult to say which party was pursuer and which defender), no practical application ensued. The provision itself is a very necessary protection to defenders who are sued by an impecunious limited company. In many cases wealthy directors launch an expensive litigation on very doubtful grounds against a defender who, if he is successful, will never recover a farthing of his costs. A trustee in bankruptcy has personal responsibility and proceeds with caution, but a limited company with no assets is a mere puppet to be worked at will, and without risk to the individual wire-pullers.

The extent to which the public is entitled to protection against danger arising from dangerous machines or unfenced localities was considered in Reilly v. Greenfield Coal and Brick Company, Limited (46 S. L. R. 962). We had occasion lately to refer to this subject in connection with other cases (Vol. XXXIV, p. 220), but as the authorities were reviewed at considerable length in this case, the general result may be again referred to. The accident which gave rise to the action was caused by a series of miners' hutches running on a tram line at a point where it crossed a cart road. The tram line was a double line about

six feet wide, worked by an endless wire rope with hutches attached at intervals of forty yards, kept going more or less continuously at a rate of about three miles an hour. The line was unfenced and crossed the road on the level. The road had been used by the public for at least fourteen years either of right or by tolerance. This action was brought for damages for the death of the pursuer's son, aged about four years, who was killed by one of the hutches. It was held that as the hutches were not under the direct control of anyone, but travelled, so to speak, automatically, the tramway was a dangerous machine, placing the defenders under duty to the public to take precautions against its injuring anyone.

In the course of his judgment the Lord President said: "The foundation of this class of case is relationship of duty. A relationship of duty may be to everybody or it may be to a limited class of persons, and that will arise from the circumstances. A man who sends out, by the hands of an unskilled messenger, a loaded gun, has really got a duty to everybody, which in the case I am putting he has neglected. A man, on the other hand, who quite lawfully upon his own premises may have dangerous holes into which a person may tumble, has no duty to the world in general, but he has a duty to those persons whom he invites upon his premises or allows to go there upon ordinary business avocations. . . . I think some confusion of thought arises from the use of the word 'dangerous.' A thing may be dangerous at one time and not at another." As a reductio ad absurdum his lordship instances a proprietor or occupier who has a pebble on ground to which other people are admitted. "The pebble in one sense can hurt nobody; but if a small child takes up the pebble and swallows it, the pebble will be an element of danger to that child. Nobody would be so absurd as to suppose that there could possibly be an action of damages against the proprietor. Again, let

us take the case of artificial or ornamental water, as in Hastie v. The Magistrates of Edinburgh [1907], S. C. 1102, where we held that there was no relevant averment of want of duty against the magistrates. That was not such an extreme case as the pebble, because one might fairly say, using ordinary language, that there was some element of danger in the pond. Then, third and lastly, you get into the other class of things where the thing is actually dangerous in itself that is to say, where there is what I may call active danger in it, such as the case of the loaded gun, poison, or fire."

The element in this case which carried most weight with the Court, was that the haulage of the hutches was automatic, and when once set in motion in the morning had no special supervision until it was stopped at night. There was no person in charge as in the case of a locomotive, the driver of which, if he saw the line encumbered by somebody, would take care not to drive over him. "If you put a machine of that sort in a place where you know the public generally are going to be, you must take precautions to try to prevent them from falling victims."

IRISH CASES.

R. B.

There is a distinction between "reportable cases and "notable" cases. Not many in the last quarter's numbers. of the Irish Reports come properly under the latter class. Deducting those which deal with purely Irish statutes and practice, and which therefore are not very suitable for the pages of the Law Magazine, the residue is not large.

In re Adair ([1909], 1 Ir. R. 311), is a case upon a point which has already several times come up for decision-the effect of a condition in a settlement intended to secure the personal residence of a tenant for life in the mansion-house on the settled estate. The settlement here provided that

every person who should become actually entitled as tenant for life should, for at least six months in each year, dwell and reside in, and keep in good order and condition, the mansion-house on the settled lands; and if any person so entitled should "refuse or neglect" to dwell or reside, the limitation to the use of such person should determine and become void. The actual tenant for life was an officer in the Royal Marines, and as such was liable for service abroad. He proposed to sell part of the lands to tenants under the Land Purchase Acts, and the first question was, whether by so doing he would incur risk of forfeiture. This question was readily answered in the negative a person entitled to sell under the Settled Land Acts can sell under the Land Purchase Acts, and it has been held that such a fetter is void so far as regards a sale under the Settled Land Acts (In re Richardson, L. R. [1904], 2 Ch. 377), although it is valid until such sale (In re Trenchard, L. R. [1902], I Ch. 378). It was further decided-and this does not seem so completely covered by previous authority— that absence from home on military or naval duty would not be "refusal or neglect" within the meaning of the condition. This is partly on grounds of public policy.

Rodgers v. Houston ([1909], 1 Ir. R. 319), is a case on the sometimes difficult subject of implying equitable limitations. A settlor conveyed land to trustees, to hold in trust for named persons as tenants in common. There were no words of limitation of the respective estates of the persons named. The Court (Wylie, J.) held that it was at liberty to look at the intention of the settlor as evidenced by the whole deed. Finding in it sufficient indication of intention to that effect, the persons named were held entitled to equitable estates in fee simple. It is perhaps superfluous to point out that this is one of the matters which prove, in spite of the so-called "fusion" of law and equity, that there are still substantial distinctions between legal and