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through his proper work without raising unnecessary that if the action went to trial, judgment must be in his objections. On Wednesday last, however, counsel favour. Surely, in such a case, it could scarcely be moved before Vice-Chancellor HALL that the Chancery doubted that if the defendant, by notice of motion, Paymaster might be instructed to act upon an affidavit “claimed such relief" as the dismissal of the action, he which he had objected to act ou, because, being made would only be applying “ for such order as he may, in a remote part of America, it purported to be sworn | upon the admissions of fact in the pleadings, be entitled before a person describing himself as a “probate judge.” to," and would, therefore, be strictly within the letter as The affidavit had passed the censorship of the Masters of well as the spirit of ord. 40, r. 11 ? But in Litton v. the Central Office, who had placed it on the file, and that Litton it was expressly decided that “a defendant seekfact alone we should have thought sufficient to show that | ing to dismiss an action in this manner is not a the proper formalities had been complied with. The party applying for relief within the meaning of Vice-Chancellor directed the Paymaster to act upon that rule," and it was held that he must proceed the affidavit. It would be convenient to solicitors under ord. 36, r. 4, or ord. 36, r. 4a, which, in to be informed by what right the Chancery Pay effect, provide that he must wait for six weeks, master considers himself entitled to go behind an and then either set down the action for trial (if the affidavit for such a purpose, and more especially plaintiff fails to do so), or move to dismiss for want of after the proper officer has held it to be sufficient. prosecution. That a defendant whose right to judgment The Masters now file all affidavits sworn before any on the admitted facts is not clear must avail himself of person qualified to administer oaths in foreign coun- one of these provisions we should not dispute ; but, in tries, and so long as the signature is authenticated spite of the decision in Litton v. Litton, we have always by the official seal of this qualified person, no question entertained a strong opinion that, although a defendant is ever raised. In fact this affidavit was rightly filed, whose case is clear on the merits may, if he pleases, and the application to the Vice-Chancellor ought not to proceed under ord. 36, r. 4, or 4a, he ought not to be have been pecessary ; but this brings us to the whole precluded by a narrow and rigid construction of the subject of affidavits required by the Chancery Paymaster. word “relief" from availing himself of the simpler and Take, for instance, an affidavit of residue. The deponent, speedier procedure under ord. 40, r. 11 ; and we welcome who really knows nothing, or pext to nothing, of the Pascoe v. Richards as a decision in accordance with the matter, bas to obtain the facts from the Paymaster spirit of the Rules of Court. himself, and then to go and swear to them. Such an absurdity is a relic of the old days of " unnecessary oaths and affirmations, and ought to be abolished. If the WE HAVE OFTEN had to complain of the delays in residue of a fund has to be ascertained, the Chancery | printing Bills and Acts of Parliament and parliamentary Paymaster's certificate of that fact should take the place papers, and we turned with some interest to the first of an affidavit.
report to the Lords of the Treasury of the Controller of the Stationery Office, which has just been published. The
report discloses many weak points in the present printing THE QUESTION as to what "relief " may be applied for and publishing arrangements of the Government. The and given to a defendant on motion under ord. 40, r. 11 magnitude of the transactions of the office is shown by recently came before the Master of the Rolls in Pascoe v the vote which, “in spite of large economies effected by Richards (noted ante, p. 258). The pleadings, including recent contracts,” amounted to nearly £460,000 for special reply and joinder of issue, had been delivered | 1880-81. The main heads are three : “ Printing for and were closed ; and the defendant thereupon moved, Public Departments," " Parliamentary Printing," and under ord. 40, s. 11, to dismiss the action, on the ground “Printing of Acts of Parliament.” The contracts for that the pleadings did not show any case for relief the first were given in 1877 to Messrs. EYRE & SPOTTISagainst him. It appears to have been argued, on the WOODE," after competition, and expire in 1884. The autbority of Litton v. Litton (24 W. R. 962, L. R. 3 Cb. contracts for the second are divided between Messrs. D. 794), that the dismissal of an action was not " relief EYRE & SPOTTISWOODE and Messrs. HANSARD, and expire claimed ” within the meaning of ord. 40, r. 11; and the partly in 1884, and partly in 1886. It is noteworthy fact that the defendant had not made a counter-claim was | that the terms of Messrs. HANSARD's contract for printing relied on in support of the argument that no “ relief” | House of Commons Papers-Bills appear to be printed could be granted to him. The Master of the Rolls, how. by Messrs. EYRE & SPOTTISWOODE-are about twenty-six ever, took a view similar to that which we ventured to per cent. in excess of those admitted for “ book-work" for express (21 SOLICITORS' JOURNAL, 236) when commenting public departments. It is curious that House of Lords on the decision in Litton v. Litton-viz., that the dismissal papers should be intrusted to other contractors-Messrs. of an action was the very best relief that could be EYRE & SPOTTISWOODE (who print the Bills)--and that yet granted to a defendant in the action; and pointed out | others-Messrs. NICHOLLS-should have the turning out that the word “relief” in the Rules of Court i of " Votes and Proceedings," and we are not surprised to should be construed in a wider sense than as being find a suggestion by the controller that“ the employment merely equivalent to the “relief” expressly claimed by of a common printer would perhaps be found not without a pleading. The learned judge distinguished Litton v. economical advantages," especially as each member of Litton ; but it appears to us that his decision must have the House of Commons received through the last the effect of overruling the decision in that case. The Parliament, “according to a moderate calculation," only difference in the two cases was that in Litton parliamentary papers amounting to “about a ton of v. Litton default had been made in replying to a defence printed matter.” Turning to Acts of Parliament, we read “ which, if uncontradicted, corzstituted a good defence to that the whole question of their production and distribu. the claim" (L. R. 3 Ch. D. 794), while in Pascoe v. tion “is one to which your lordships' early attention Richards a special reply, followed by a simple joinder of might, with advantage, be directed.” It seems that the issue, had been delivered ; but the admitted facts responsibility for the arrangements is apparently—“ 80 showed no ground for relief against the defendant. The | far as it can be brought home to any department, divided effect of ord. 29, r. 12, is to put both cases on precisely between your lordships, the House of Commons, the Secthe same footing; for it, in effect, provides that default retary of State for the Home Department, and the Conin reply shall operate as an admission of all statements troller of the Stationery Office." By “ arrangements" here of fact in the defence, and that the pleadings shall be is meant, we suppose, the supplying of the “copy," and deemed to be closed on the expiration of the time limited the fixing of the time for publication, for we read afterfor reply. Therefore, in each case the pleadings were wards that, “by arrangements terminable at your lordclosed, and the admissions on the pleadings showed no ships' pleasure," all Acts of Parliament are edited and case for relief against the defendant; but it was clear printed by Messrs. EYRE & SPOTTISWOODE as private property, so that any other printer may take over the general contract to print the statutes. The chief ADMINISTRATION OF FOREIGN complaint which lawyers have to make in the matter is of the delay which frequently occurs in publication.
ASSETS. An Act of Parliament onght to be accessible to all her
An interesting question was decided by Mr. Justice Fry Majesty's subjects at the earliest possible moment after in the recent case of Eames v. Hacon (29 W. R. 259). it has become law. It is well known that inexcusable | Although the distribution of the personal estate of a delays frequently occur, but to which of the four great
deceased person is to be regulated by the law of the bodies, amongst whom “the responsibility for the ar country in which he was domiciled at the time of his rangements" is divided, these delays are to be attributed
death, yet the administration of such estate is, to a is perhaps more than even Mr. PIGOTT could tell us.
certain extent, in the country in which possession of it is taken and held by lawful authority. The assets in
any particular jurisdiction are liable to pay the debts of WE REPORT elsewhere a Scotch case in which the
the deceased contracted there, and the creditors may question was raised whether section 6 of the Ground
maintain an action for such debts against the local Game Act, 1880, probibiting the cmployment of
administrator (Chambers v. Bicknell, 2 Hare, 536).
To this extent it is incorrect to say, as Lord Westbury spring traps, except in rabbit holes, applies to the
is reported to have said, in Enobin v. Wylie (10 W. R. case of the tenant of a farm having & right to kill
467, 10 H. L. C. 1), that “the administration of the rabbits under a tenancy in existence at the time when the Act came into operation. In other words is the pro
personal estate of a deceased person belongs to the court vision of section 6 applicable to all tenants? We should
of the country where the deceased was domiciled at his
death." have thought that the words of the section, “No person
But to what extent do the powers of the local having a right of killing ground game under this Act or otherwise shall use any firearms, &c., ... and no
administrator go? Who is entitled to receive, and such person sha!), for the purpose of killing ground game,
give a receipt for, the net residue of the personal
estate of the deceased in any country — the legal employ spring traps, except in rabbit holes,” were sufficiently clear on this point. The section is intended to
personal representative constituted by the forum of restrict the destruction both of winged and ground game,
the domicile of the deceased, or the local administra
tor? The observations of Lord Westbury in the case and obviously applies to all persons having a right to kill
above mentioned indicate the answer to these questions. ground game. So it was held in the Scotch case.
He said that the court of the domicile is the forum concursus to which the legatees under the will of a testator, or
the persons entitled to the estate of an intestate are reTHE INTERNATIONAL COURT OF APPBAL in Egypt. of quired to resort, and he pointed out that “confusion which Mr. John Scott, the English delegate, has just / must arise if, when a testator dies domiciled in one been appointed vice-president, is probably the most country, the courts of every other country in which he unique and polyglot court in the world. England, has personal property should assume the right, first of Egypt, France, Germany, Italy, Austria, Russia, and
declaring who is the personal representative, and next of the United States of America all send delegates; and interpreting the will and distributing the personal estate while the law and procedure are French, the languages
situate within its jurisdiction according to that interpre. allowed to be used in court are French, Italian, and
tation. An Englishman dying domiciled in London Arabic.
may have personal property in France, Spain, New York, Belgium, and Russia, and if the course
pursued by the Court of Probate and the Conrt A solicitor writes to ask when the authorities intend
of Chancery in the present case should be adopted by the
courts of those several countries, there might be as many to re-open the gates leading from Carey-street to the
different personal representatives of the deceased, and as Royal Courts of Justice. These gaten, he points out, were closed in August last, when certain excavations
many varying interpretations of his will, as there were were being made with the object of making a lavatory
countries in which he was possessed of personal prop
erty. . . . It is unnecessary to dwell on the evils under the steps. These buildings were completed in
which would result from the conflict of jurisdiction. It December last, and our correspondent states that much
was to prevent them that the law of the domicil was inconvenience and waste of time arises in consequence of
introduced and adopted by civilized nations. I am, the gates still being kept closed.
therefore, of opinion that the (Russian) executors might The following petition has been presented in the have excepted to the jurisdiction of the Court of ChanHouse of Commons by Mr. Gregory : - "To the cery as a court of construction and administration; they Honourable Commons of the United Kingdom of might have insisted that it was the duty of the court to Great Britain and Ireland in Parliament assembled : hand over to the executors the clear English personal The humble petition of the Incorporated Law Society / estate, and to remit the next of kin to the court of the of the United Kingdom showeth,—That your peti- domicil of the testator.” But in that case the executors tioners regard with satisfaction a proposal which is were held to have renounced their rights by submitting now under discussion in Parliament to abolish the to the jurisdiction of the Court of Chancery, and we are offices of the Lord Chief Justice of the Common Pleas not aware that the point has been definitely decided and the Lord Chief Baron of the Exchequer. Your / before the recent case. petitioners desire to express their opinion in favour of In Eames v. Hacon the deceased was assumed to be the abolition of the offices referred to, tending as it does domiciled in Ireland, and letters of administration were to consolidate the various divisions on the common law granted there to his widow. He was possessed of personal side of the High Court of Justice into one division, property in India, and the Irish administratrix executed a thereby placing the whole under one presidency, which power of attorney authorizing a firm in India to take out your petitioners consider to be in conformity with the letters of administration there. These were taken out. object and intention of the Legislature in passing the The firm administered the Indian property, ascertained Judicature Acte. Your petitioners hereby humbly pray the net residue, and remitted it to their agents in London your honourable House to take such steps as may be with instructions to pay it to the person entitleù. The necessary for carrying into effect the proposal above re. London agents declined to pay it to the Irish executrix, ferred to." “ The common seal of the Incorporated Law on the ground that they were liable to the next of kin of Society was affixed hereto in my presence, E. W. WIL the intestate, and that her receipt would not discharge LIAMSON, Secretary."
them from this liability. The Irish executrix sued the agents for the balance, and Mr. Justice Fry held that she But it is not merely legal training that the promoters was entitled to recover it, on the ground that the legal of the tribunal wish to be rid of; they are also desirous to personal representative constituted by the forum of the avoid what Mr. Slagg called “another Charybdis—that domicile of the deceased is entitled to receive the moneys was, they might fall into the hands of solicitors in a belonging to the personal estate of the testator which re. manner that would be very burdensome to them." present the clear net receipts obtained in any country “Solicitors," he continued," he had no doubt, meant wherever it may be, and through the intervention of any well, but what he complained of was the outcome of letters of administration wheresoever granted.
a bad system for which they were not responsible. He maintained that the manner in which their charges were made and imposed on the public was a perfect scandal to our civilization.” Mr. Slagg would probably
be surprised to learn that the solicitors are perhaps more THE MANCHESTER TRIBUNAL.
dissatisfied than any other class with the system on The Manchester Chamber of Commerce bas finally re- which their charges are compelled to be made, and since solved to try the experiment of establishing a tribunal he is a legislator, a bill may probably come under his of commerce. The putative father of the proposal, consideration by which that system, as to a large branch Mr. Slagg, M.P., does not, if one may judge from bis speech of those charges, will be wholly changed. Possibly it might in moving the resolution constituting the tribunal, seem be more rational to join in the attempt to improve the very hopeful of the immediate success of the experiment. system of charges than to attempt to dispense with “If," he said, “ they foundered about somewhat at solicitors, but the latter course is quite in keeping with first, and judgments of a conflicting nature were given, the idea which is at the basis of this tribunal of commerce. not reconcileable with the most scientific law of the age, There are evils and abuses in our legal system, thereyet they might, he hoped, in time become so important, fore let it be swept away; this is the doctrine of the and aggregate such an amount of business, that à legally Manchester prophets. Just as reasonable would it have trained judge might be appointed." So it appears the i been to contend before the Reform Bill, that because the best hopes of the founder of the new system are that it system of representation was full of abuses, we ought, may ultimately lead to the old. The Tribunal of Com- | therefore, to sweep away the House of Commons. merce is to end by becoming a second-rate county court. 1 In truth a tribunal of commerce from which lawyers
We learn, however, from the discussion which took are excluded is a chimera, and we are astonished that place on the proposa!, what it is that the promoters aim sensible and shrewd business men cap pledge the credit at in their scheme. In the first place, Mr. Slagg, of a chamber of commerce to the task of attempting to apparently with reference to some remarks which ap establish such an institution. The probable result of peared in the columns of this journal some weeks ago, such an attempt will be, as & facetious speaker at the said:-“They were told by objectors that there would recent meeting expressed it, “ to create in the chamber be an absence of that quality of legal training a pandemonium of assessors, experts, and other nuiwhich was considered by some so important an element | sances." in the settlement of disputes. He should say that one of the chief objects of the scheme was to get rid of that legal training as much as possible, and the less they had of it, he thought, the better." Why, then, look forward with
REGISTRATION OF TRADEruch hope to the day when the "legally trained judge"
MARKS IN COLOUR. might be appointed ? If we ask why legal training is objectionable in commercial judges, we fail to meet with
II. any attempt at an answer : the net result of Mr. Slagg's | The cases on the present subject are not very numerspeech is this: -legal proceedings, as at present con- | ous as yet, though it is to be anticipated that they will ducted, are expensive and tedious; let us do away with soon be multiplied ; but they do serve to afford some the whole of them. So be it; but will not the machinery indications as to the working of the present system. In of a tribunal of commerce, with its “registrar," its the first place we may refer to In re Orr Ewing (26 “arbitrators," its rules of procedure, its precedents, itsW , R. 259, L. R. 8 Ch. D. 794), in which a point was assessors and experts, also be expensive and tedious ? raised before the Vice-Chancellor which turned on Precedents, says Mr. Slagg, will be gradually accumu- colour, but which a simple explanation prevented from lated for the guidance of the arbitrators; these must be reaching the higher courts. Among the marks to which searched for, and examined by, or on behalf of, the the Committee of Experts objected, as wanting in dislitigants. Rules of procedure, “even down to the most tinctiveness, was an oval mark, which they treated as minute points," will, says Mr. Slagg; be made; these being a mere blotch, but the objection had to be at once will have to be carefully considered by, or on behalf of, withdrawn on its being explained that in practice this the litigants. Will John Jones, merchant, of Manches. blotch was always gilded so as to represent a golden egg. ter, take it upon himself to search the precedents, and | Thus we have here an instance of litigation occasioned construe the “minute" rules of procedure ? Being a | by the restrictions in respect of colour. But on other busy man, unaccustomed to searching precedents, we | points the case went up to the Court of Appeal and the trow he will not. Will he then rush into the tribunal House of Lords, and by reference to the reports of this without having had the precedents searched and the case (26 W. R. 777, L. R. 8 Ch. D. 794, L. R. 4 App. “ minute” rules examined. Being a shrewd man who Cas. 479), as well as to those of Orr Ewing v. Johnston wishes to win his cause, we trow he will not. Will (27 W. R. 575, 28 Ib. 330, L. R. 13 Ch. D. 434), it will the arbitrators act gratuitously? Will they sacrifice all be readily understood that much assistance would have business engagements to fulfil their duties at the Tri. been rendered to the court if the marks had been bunal ? We imagine they will not. Well, then, here is | registered in their colours, as the common use of a green expense and delay for John Jones, even in this new. colour for the triangular labels affected by the yarn trade fangled legal cure-all. If the Chamber of Commerce would have been at once apparent. Then we come to want to be rid of expense and delay, the only plan is the case of Nuthall v. Vining (28 W. R. 330), in which to constitute their porter the tribunal, and provide the Court of Appeal is reported to have laid down that that he shall decide all cases by the method taught colour would not be regarded in questions of infringeby the light of nature from the earliest times-namely, ment of trade-marks registered in black and white. The by first balancing on his thumb and forefinger a coin of report does not pretend to give the judgment in detail, the realm, and after presenting to the litigants the and it seems rather doubtful whether any such sweeping option of "heads” or “ tails," tossing the coin in the assertion was made, especially having regard to the air, and deciding the case according to the result. decision in In re Worthington (28 W. R. 747, L. R. 14 Ch. D. 8); but at all events it seems clear enough that Then we come to the case of Mitchell v. Henry (L. R. 15 an additional obstacle was thrown in the way of a trades. Ch. D. 181), in which a trade-mark for worsted stuff was man, who was not unreasonably complaining of the use registered by deposit. The description of the mark in of a label similar in many respects to his own, by the the Trade Marks Journal was: “A white selvage on restrictions as to registration in colour.
each side of the piece, having a red and white mottled The case of In re Worthington (28 W. R. 747, L. R. thread interwoven the full length of the selvage, between 14 Ch. D. 8) was a registration case, and here the next the edge of the piece and the edge of the selvage." The point came up for decision whether registration should deposited specimen of the plaintiffs' goods, showing be allowed to a mark which might be rendered extremely their mark, was undyed, and in that condition it preeimilar to one already registered by the application of sented a light gray appearance with a white border, a colour, on the ground that there was sufficient distinc- red and white line running through the border. In tion between the two in black and white, or whether it practice the goods were dyed before being exposed for should be refused to a mark which, as advertised in sale, and in that condition the goods appeared to be black and white, was sufficiently distinctive, on the ground black, the selvage rather lighter than the rest of the that a similarity might be produced by the addition of piece, and the red and white thread had become dingy, colour, a matter to which no allusion was to be found in but was still perfectly distinguishable. The defendants the rules. Cotton, L.J., taking what is perhaps the used a mottled thread of three colours, but when their more logical view, thought that the former alternative was goods were dyed they were scarcely distinguishable from to be preferred, and that the mark should be admitted to the plaintiffs', except that their thread was differently registration, leaving any subsequent production of simi- | placed, and their selvage was somewhat lighter. The larity by the application of colour to be dealt with at a Master of the Rolls held that the selvage of the plainlater date as a matter of fraud; but the majority of the tiffs' goods, as used by them, was not white, as described court, affirming the decision of the Master of the Rolls, in the advertisement; that the three colours of the defend. took the course which was possibly less logical, but was ants' thread differed sufficiently from the two colours of certainly more in the interest of traders, of refusing the the plaintiffs' tbread; and that the different position of registration. James, L.J., said, “It appears to me that the thread supplied another sufficient distinction. On the intention of the Legislature was to prevent a person all these grounds he decided, on motion, in favour of the having a trade-mark from being liable to be injured by defendants. The Court of Appeal, however, took the another trade-mark, which might be used to imitate bis, contrary view, holding that the question as to the whiteor be passed off as his. Now the proposed trade-markness of the selvage was to be decided by the understand. of Messrs. Worthington, no doubt, as it stands in blacking of the trade, apd that the other questions were also and white, seems to be very substantially different from to be decided on the evidence of experts, and that the that of Messrs. Bass & Co. But then, I think, we must motion must stand till the hearing. Thus, even when a look at this, that the Trade-Marks Act says nothing trade-mark is registered in colour, the actual appear. about the colour, and the appellants might use exactly ance of the goods is not necessarily conclusive of the the same colour upon their trade-mark which Messrs. trade-mark proprietor's rights. So that, at all events Bass have used upon theirs; that is to say, each of the with regard to some classes of trade-marks, not only marks might be a mass of red, on one of which masses is the colour of so much consequence as to require of red there would be a design of a church. Of what registration by deposit, but expert evidence is requisite colour that design of a church might be, I do not know; to explain the effect of that registration. it might be red of the same shade or a different red; but The last case to which we propose to draw attention is there migbt be a mass of red with a design on it which that to which allusion was made at the opening would be, with that difference, the same as Bass's of our first article on this subject, that of In re Robintriangular mass of red.” And Brett, L.J., going still son (29 W. R. 31), before the Master of the Rolls on the farther into the question of principle, said, “It is obvious | 5th of June last. In that case the question had reference that there is nothing in the statute to prevent the trade to the proposed registration of the representation of a mark which is registered from being used in any colour. gold coin, called a mohur, for certain cotton goods. Therefore it seems to me that the proper construction Another firm had already registered the representation is that where a trade-mark is registered, it is not merely ! of a silver rupee, and it was contended that if the rule the oatline or design as printed in the advertisement in laid down in In re Worthington, that the Trade Marks black, or black and white, which is to be protected, but Act did not protect colour, was to be applicable in all that which is to be protected is the trade mark as it may cases, the mark proposed for registration might deceive, be used or will be used in the ordinary course of trade for it might be used without colour or with any colour. that is, in any colour. That being so, it seems to me The Master of the Rolls, however, pointed out that the that the proper test is this : assume both trade-marks to two marks, both old ones, being used in respect of cotton to be registered, and let it be supposed that each person goods, both would be registered in their colours by registering is ignorant of the other's trade-mark, would deposit at South Kensington, and he went on to say:any fair use of the second be calculated to deceive ? I “ The only trade-mark which is protected by the Act of quite agree that we ought not to take into consideration Parliament is the regietered trade-mark, and where it is an obliteration or a fraudulent alteration of the seconda cotton mark which is deposited and advertised, design. The question is whether any fair use of the the only trade-mark registered is that of which the second would be calculated to deceive. Now, if the first representation can be seen at the places mentioned in may be used in any colour, so also the second, if the advertisement, and no other is ever registered, and registered, may be used in any colour, and supposing the the register refers to the deposited trade-mark which parties to be ignorant of, each nther's marks, they might remains in the possession of the registrar and can be both with a perfectly fair intention use them of the same produced.” And he further added :-“That which colour. The question would then be whether, supposing would have been an infringement of a trade-mark as them both to be registered, and supposing them both regards that registered thing before the Act is still an to be fairly used with the same colour, would the second infringement, and nothing else." The Master of the be calculated to deceive any person who only used Rolls, therefore, held that the different colours of the ordinary observation ? That brings us to a matter of two coins constituted an essential difference between fact to be considered in each particular case." From them, a difference so important as to outweigh any this decision it follows that, though colour is not to be considerations derived from the similarity of the design, registered in connection with a mark, it is nevertheless the Oriental character, &c. to be treated in registration cases as forming a potential These, then, are the facts at which we have arrived. In element, and a not unimportant element, in a registered cases of trade-marks not applied for in respect of cotton mark-a scarcely logical position.
goods, and not possessing special characteristics, colour
will be disregarded in registration, and the marks will acknowledges his obligations to Mr. Cohen, Q.C., who. be advertised and registered in plain black and white. he says, "has, in the midst of his laborious occupations. The marks being registered only in black and white, found time to read through the proof-sheets, and to give protection will be refused in cases where, on the mere the author many valuable suggestions and criticisms." comparison of the registered design with that used by an The combination of two such authorities as Mr. Lowndes alleged infringer, differences are found to exist, even and Mr. Cohen on the subject of marine insurance could though by the adoption of a similar colour those differ. hardly fail to produce a work of interest and importance ; ences are removed to a considerable extent. On the and the result, we are happy to say, does not fall short other hand, if application is made for the registration of of our expectations. It is rarely, indeed, that we have a somewhat similar design, the possibility of that design been able to express such unqualified approval of a new being assimilated to the registered one by the use of legal work. Contrasting favourably in its terseness with colour will be taken into consideration adversely to the other more pretentious text-books, the author's style is applicant. When, however, the trade-mark is one used at once lucid and exact, whilst he deals with the subject in respect of cotton goods, or one which, for special from a thoroughly practical point of view, and at the reasons, it has been decided to register by deposit, the same time with a logical coherency which leaves nothing colour will be treated as an integral part of the trade to be desired. mark, and registered as such, and it will be necessary for We do not pretend in every case to agree with his the registered proprietor, in proceeding against infringers, conclusions. For instance, we doubt whether Dickenson to show that the mark of which he complains is too simi V. Jardine (16 W. R. 1169, L. R. 3 C. P. 639) is an lar, not to the mere design in the abstract, but to the authority for the whole breadth of the proposition for design as represented in a particular manner and colour, which it is cited on page 192. Mr. Lowndes is there and which manner or colour, it may be, expert assistance discussing the subject of general average, and the may be required to rightly interpret.
proposition which he bases upon Dickenson v. Jardine This is how the matter stands at present, but it may is that “ the loss cf property as it exists before distribu. reasonably be expected that it will not rest here. tion-whether it be of cargo jettisoned or otherwise These refinements appear to be unnecessarily minute sacrificed, or of a mast cut away, or the like-is reand perplexing, and it is difficult to see why, if it is a coverable by the owner of the thing sacrificed from his real advantage for a manufacturer to have the design of underwriters, just as if it had been destroyed by the his trade-mark protected against use in any colour winde and waves." Now, in Dickenson v. Jardine the cotton manufacturers and others, whose trade-marks are sacrifice was by jettison, which, as is always the case registered by deposit, should be limited to protection in a Lloyd's policy, was one of the perils expressly insured against use in a particular colour; or why, if it is bene- | against; and all that the court decided was that, the ficial to have a trade-mark registered in the form and loss being by jettison, the amount was recoverable colour in which it is used in practice, all but cotton | as a total loss from the underwriters in the first instance, manufacturers and some few others should be deprived notwithstanding the fact that an indemnity might afterof that advantage. As the matter is now explained by | wards be obtained in respect of a portion of the value of the Master of the Rolls, it turns out that the whole the jettisoned goods from the other persons interested in elimination of colour from registration was the result of the adventure. The court by no means decided that if some more or less substantial practical difficulties in the the loss had been by a peril not in terms insured against way of an efficient system of advertisement; but those -for example, as in the case of Stewart v. West India difficulties have been got over in the case of the whole and Pacific Steamship Company (21 W. R. 381, L. R. 8 important class of cotton marks, and it seems that the Q. B. 362), by water poured down a hold to extinguish & extension of the system of registration by deposit could | fire-such loss would have been directly recoverable hardly overtax the resources of the Trade-Marks | in full, in the first instance, from the underRegistry. In several cases of application for registration, writers. Possibly it miglit, but Dickenson V. Jardine especially where the application has had reference to | does not, in our opinion, decide that it would have been marks to be placed on metal goods, the court has pointed so recoverable. Again, though we have not space to disout the importance of testing the question of similarity | cuss the question, the recent decision in Greer v. Poole by a comparison of the marks as they appear in actual (28 W. R. 582, L. R. 5 Q. B. D. 273) seems to us to be use on the metal, and such a comparison would be much well distinguishable from Dent v. Smith (L. R. 4 Q. B. facilitated, and the necessity of travelling outside the | 414), though Mr. Lowndes, at p. 214, seems obviously registered mark removed, if the stamped metal were de- | to consider that the latter case is inconsistent with the posited, instead of a mere paper representation of the former. mark being advertised and registered. Uniformity in These, however, are matters of detail. It is indeed such matters is much to be desired.
refreshing to note the powerful way in which Mr. Lowndes grapples with the decisions, and, instead of noting them up, enunciates and explains the principles upon which they appear to be based. A remarkable
instance of this will be found in the discussion, on page REVIEWS.
230, of the recent important decision in the West India
Telegraph Company v. Home and Colonial Insurance MARINE INSURANCE.
Company (29 W. R. 92, L. R. 4 Q. B. D. 51), where,
for the first time, so far as we are aware, in England, A PRACTICAL TREATISE ON THE LAW OF MARINE INSURANCE.
the question was raised and decided as to the liability By RICHARD LOWNDES. Stevens & Sons.
of underwriters on an ordinary Lloyd's policy for the loss It is no secret that, in the recent case of Attwood v. of a vessel caused by the explosion of a ship's boiler, Sellar (28 W. R. 604, L. R. 5 Q. B. D. 286), Mr. such explosion having been due to the fact that the Lowndes' views of the law were supported by the Court of boiler from age and neglect had become too thin to Appeal against the almost universal practice of average resist ordinary pressure of steam. On the whole we constaters. But, notwithstanding that decision, the law of gratulate Mr. Lowndes on the successful way in which marine insurance is based to so large an extent upon he has treated a difficult subject, and can cordially recustom, that a treatise on the subject by a gentleman
commend his treatise to either lawyer or layman who who has made average stating his profession is pretty
desires to have presented to him an intelligent and intelsure to be of practical value. Mr. Lowndes, who has &
ligible view of the law of marine insurance. wide reputation as an average stater, and whose work on General Average is well known, has just brought out this small volume on Marine Insurance, and in his preface |