Gambar halaman

support an action in this State, although the de- "According to the testimony, this appellant and fendant may have been a citizen of Canada, and another, on a quiet Sunday morning, engaged in a although a copy of the bill of complaint was served quiet game of cards, in which fortune seems not to on the defendant in this State, which according to have favored the defendant. One of the defendthe laws of Canada gave the court of that country ant's witnesses who, it seems, was not present at the jurisdiction to render judgment there. The court time, says the first time he saw them, they (the playobserved: “But the learned counsel for the plaintiff ers) put up $1.50. The defendant seems to have urges that the service upon the defendant at Chau- been called Lon, which we suppose to be an abbretauqua county of a copy of the bill of complaint, viation for Alonzo, the Christian name of the deunder the laws of Canada, gave the court jurisdic- fendant; his adversary seems to have been called tion of the person of the defendant. I cannot Tobe; the witness, after mentioning the wager of a agree with him in such contention. No sovereignty $1.50, says: "Tobe won Lon's money; Lon put up can extend its powers beyond its own territorial | his saddle; Tobe won that also, and Lon put up his limits to subject either person or property to its horse, and Tobe won him.' There seems to be some judicial decision. Every exercise of authority of discrepancy between the witnesses as to whether the this sort, beyond this limit, is a nullity. Story on defendant really staked the horse on the game or Conflict of the Laws, $ 539. The jurisdiction of whether he did not sell the horse to Tobe for $25 in State courts is limited by State lines. Ewer v. Cof-money and lost that instead of the horse; be this as fin, 1 Cush. 23. This last case states that “upon it may, whether he staked the horse or the money, principle it is difficult to see how an order of a

Tobe was the winner, either of the horse or the $25." court, served upon a party out of the State in which "If this had been a civil action for the recovery of it is issued, can have any greater effect than knowl

the horse, the argument of counsel and the authoriedge brought home to the party in any other way.'ties cited in support thereof would have been more A citizen of one State or country cannot be com- appropriate. As it is, however, there was evidence pelled to go into another State or country to litigate going to show that the horse was sold by the dea civil action by means of process served in his own fendant and delivered to Green, the alleged owner. State or country. And a judgment obtained upon This was an issue in the case and submitted to the such service, where no appearance is made by the jury for their determination. The jury having person so served, can impose no personal liability determined that issue against the defendant, and which will be recognized beyond the State in which there being testimony to support it, we are of opinthe action originated. Freeman on Judgments, SS ion the conviction was proper, even though the tes564, 567. In Holmes v. Holmes, 4 Lans. 392, it is timony showed that the defendant subsequently to the held that in order that the court have jurisdiction | purchase and sale, did lose the money he received of the person of the defendant, it is necessary that for the horse at cards with the purchaser." the defendant be served with the process of the court, or voluntarily appear in the action, and that such service of process can only be made within the

In Hebblethwaithe v. Hepworth, Illinois Supreme territorial jurisdiction of the court.' Dunn v. Dunn, Court, Sept. 25, 1880, 13 Chic. Leg. News, 19, it 4 Paige, 423; Ex parte Green v. Onondaga Com.

was held that a valid marriage is not contracted by Pleas, 10 Wend. 592; Folger v. Columbia Ins. Co.,

mere verba de futuro followed by cohabitation. The 99 Mass. 267.” “The comity due to the courts of

court said: “ By the common law, if the contract other countries is urged as a ground for a recovery

be made per verba de presenti it is sufficient evidence here upon this judgment. The courts of this State

of marriage, or if made per verba de futuro cum do recognize foreign judgments as binding here, copula, the copula would be presumed to have been when the record shows that the courts rendering a

allowed on the marriage promise, so that at the time judgment had jurisdiction of the subject and of the

of the copula the parties accepted each other as husperson of the defendant, and give full credit to

band and wife. · On this subject the maxim of the such judgments by refusing to retry the matters

law is inexorable, that it is the consent of parties and when once determined in an action where the for

not their concubinage that constitutes valid mareign courts had acquired such jurisdiction. We go riage. The well-being of society demands a strict

"A contract of marno further with respect to judgments of a sister adherence to this principle.” State.” The same doctrine was held by the Supreme riage per verba de futuro, while it may give an action, Court of Michigan, on a very careful and extended

is not evidence of valid marriage. Nor are the reexamination, in McEwan v. Zimmer, 38 Mich. 765; lations of the parties changed by the fact that coS. C., 31 Am. Rep. 332.

habitation may have followed the promise to marry at a future time. Port v. Port, 70 Ill. 484. A con

tract of marriage in the future even where the parIn Matthews V. State, Texas Court of Appeals, ties may afterward cohabit, is not understood to June 2, 1880, 4 Tex. L. J. 71, it was held that when constitute marriage, unless when at the time of the a person sells a horse and the purchaser wins back cohabitation the parties accept each other as husthe money at cards, if the former owner take the band and wife, and so conduct themselves that that horse from the possession of the purchaser without relation is understood and acquiesced in by relatives his knowledge or consent, with the intention of re- and other acquaintances. Such was not the case gaining ownership, it is theft. The court said: here. Even the reputation as to the relation of the

THIS Yocan application and statutory construction,

parties was divided in the neighborhood where

wheat at Buffalo. On acceptance of the draft, the they resided. Some thought they were married, but plaintiff delivered the bill of lading to B, with an others did not. But it does not appear the parties, indorsement to the effect that the wheat was or either of them, ever understood they were in fact pledged to it for payment of the draft, and was married. Her admissions clearly and understand placed in B's custody “in trust for that purpose,” ingly made are to the contrary, and we are not at

and was not to be diverted to any other use until liberty to declare otherwise." To the same effect, the draft was paid. B sold and delivered the wheat Peck v. Peck, Rode Island Supreme Court, 21 Alb. L. to C, but did not pay the draft. C knew of the J. 344; 12 R. I. 485.

bill of lading and the indorsement before his purchase. Held, that he was liable in an action for

conversion of the wheat. SEVENTY-EIGHTH NEW YORK REPORTS. People v. Security Life Insurance and Annuity Co.,

p. 114. — An insolvent life insurance company, disMHIS volume contains an unusual number of cases

continuing business and failing to carry its policies,

is liable to policy-holders in damages for breach of and those depending on peculiar and intricate states contract; the policy-holders are creditors for the of fact. We glean the following as the main cases value of their policies at the date of the dissolution of general interest and application:

of the company; and the claims of holders of unPeople ex rel. Francis v. Common Council of Troy, matured policies are not to be postponed to deathp. 33. — A city charter required the common coun- claims maturing before the dissolution. cil to designate not to exceed four newspapers hav- People v. Merchants and Mechanics' Bank, p. 269. ing the largest circulation in the city, in which the - The C. N. Bank cashed a check on the M. and city advertising should be done. A designation M. Bank, and sent it for payment; the latter bank was made, for a year, and acted upon, but the re- sent the former its draft for the amount, charged lator insisted and produced evidence that his news- the check to the drawee's account, which was good, paper had a larger circulation in the city than some and returned him the check as paid. Two days of those designated. The proprietors of the other afterward the M. and M. Bank failed, and was newspapers were not made parties. Held, (1) that the placed in the hands of a receiver. On an applicacourt could not by mandamus compel the designa- tion by the C. N. Bank to have the receiver pay the tion of any particular newspapers in the first in- amount of the draft to it, held, that the transaction stance; (2) that it could not vacate the designation was a simple shifting of indebtedness by the M. and of any already made, nor add the relator's newspa- M. Bank, and did not impress any trust on the per to those already designated; (3) that the year drawer's funds in its hands. having elapsed for which the designation had been Willy v. Mulledy, p. 310. — A statute requires made, this remedy is not appropriate.

owners of tenement houses to provide such fireFowler v. Butterly, p. 68. – A husband procured escapes as shall be directed and approved by certain an insurance upon his life for the benefit of his wife, commissioners. Held, that the duty is presently and delivered her the policy. Afterward, without imperative, and the owners must procure such direcconsideration, and without any knowledge on her tion and approval, without waiting for the action of part of the purpose or purport, and without any de- the commissioners. Also, held, that a tenant who sign to part with her property therein, but by the moves into such a house, knowing it has no fireundue influence and control of her husband, she escape, is not guilty of contributory negligence such was induced to execute an assignment of the policy as will defeat his recovery of damages for injury to a third person, who assigned it to a fourth, and through the defect. those assignees paid the premiums. In an action on Hook v. Pratt, p. 371. — The putative father of the policy, wherein the wife was made a party by an illegitimate child drew a draft payable to his own order of interpleader, held, that she was entitled to order, and indorsed it, payable to the order of the the amount of the insurance, independent of the mother, expressly “for the benefit” of the child. question whether the policy was assignable under Held, (1) that the undertaking was not illegal; (2) the statute.

that the draft imported a consideration. Chapin v. Dobson, p. 74. — It was orally agreed by White v. Miller, p. 393. — In an action of damA and B, that A should furnish B with certain ma- ages for breach of warranty on sale of seed, held, chinery at a specified price, and that B should ac- that the proper measure of damages is the differcept and pay for the same in a specified manner, and ence in value between the crop raised and the crop that A should guarantee that the machines should represented, without interest. do B's work satisfactorily. The agreement was re- Arthur v. IIomestead Fire Insurance Co., p. 462. — duced to writing and signed, not including the A fire policy was conditioned that no suit upon it guaranty. Held, that parol evidence was compe- should be sustained unless commenced within a year tent to add the guaranty.

after the claims should accrue. An action was comFarmers and MechanicsNational Bank v. Hazeltine, menced upon it within the year, and on the trial it p. 104. — The plaintiff at Buffalo discounted a draft appeared that in the statement of incumbrances in on B, on delivery as collateral, by B's agent, of a the application, a mortgage had been omitted. The bill of lading of wheat shipped to B at New York, plaintiff offered to show that the defendant's agent the proceeds being used by the agent to pay for the was informed of the mortgage but omitted it by


mistake. The court excluded the evidence, but ufactory. "Thorley's Food for Cattle" was a condioffered to allow the plaintiff to amend his complaint,

ment made, according to a particular recipe not invented

by Thorley, first by Thorley, and afterward by his execusetting up the mistake. The plaintiff refused, and

tors, at Thorley's works, but it had not become an artiwas nonsuited. Afterward, and after the lapse of a cle of commerce like “Liebig's extract of meat." year from the accruing of the claim, he commenced

Subsequently a company, called “J. W. Thorley's Cattle

Food Company," was started and made a condiment another suit. Held, not maintainable, although the very nearly identical with that made at Thorley's works, defendant's counsel accepted the costs in the first and sold it in packets closely reseinbling those used by suit, and gave the plaintiff's counsel time to make a

Thorley and his executors. Held, that the name as

sumed by the company, and the manner in which they case or exceptions.

sold their goods, showed an intention, and was in fact Buel v. People, p. 492. — The defendant killed a calculated to mislead the public into believing that the woman by strangling her while attempting to com

company were the successors in Thorley's business, and

that their goods were made at Thorley's works; and mit a rape upon her. Held, murder in the first de- that the company must be restrained by injunction. gree, within a statute making the killing of any

Decision of Malins, V. C., in the first action affirmed;

in the second reversed. person, by one while engaged in the commission of a felony, murder in the first degree.

CHESE two appeals from Malins, V. C., were heard Flynn v. Equitable Life Insurance Co., p. 568.

together. The defendant's medical examiner, at the request of

In the case of J. W. Thorley's Cattle Food Company

v. Massam, the plaintiffs bad moved on the 30th June, an agent of the defendant who had acted to some

1877, for an injunction to restrain the defendants, the extent as general agent, and occupied defendant's executors of Joseph Thorley, from advertising, or repprincipal office, filled up an application for life in- resenting in their advertisements or circulars, that surance. The applicant made correct answers, but they were alone possessed of the secret for compoundthe medical examiner incorrectly and untruly stated

ing the condiment known as “Thorley's Food for Cat

tle," and from representing that the cattle food manusome of them in the application. Held, that in the

factured and sold by the plaintiffs was spurious, or not absence of evidence on the part of the defendant to genuine, or not compounded in accordance with the show the true authority of the agent, a finding that true recipe, of the same ingredients, and in the same he was authorized to depute the medical examiner proportions, and in the same manner as the condiment to fill up the application, was justified, and defend

known as “Thorley's Food for Cattle," manufactured

and sold by Joseph Thorley in his life-time. ant was estopped from taking advantage of the

The advertisement complained of was this: mistakes. See same case, 67 N. Y. 500; 23 Am.

Caution, -Thorley's Food for Cattle. The public, Rep. 134.

and in particular farmers, graziers, dealers, and others Hurd v. Kelly, p. 588. — A bond was executed by purchasing this world-famed food, are warned that any

food for cattle purporting to be “ Thorley's Food for several for the several payment of a certain sum to Cattle,” and not signed with the name Joseph Thorley, a certain savings bank, on a specified day, “or six is not the manufacture of this establishment, carrying months after a demand therefor.” The bank was

on business as Joseph Thorley, the proprietors of

which are alone possessed of the secret for compoundembarrassed at the time, and the real purpose of the ing that famous condiment, and carryiug on business bond, which was known to the obligors, was exhib

at Pembroke Wharf, Caledonian road. ition to the bank department as an asset, and to ena

The defendants, the executors, had also issued circuble the bank to pass examination and continue in

lars, warning the publio against the course pursued by

the company “in seeking to foist upon the public an business. The expressed consideration was that the

article which they pretend is the same as that manubank should continue in business after the execu

factured by the late Joseph Thorley." tion of the bond. The bank did continue in busi- Malins, V. C., though he was of opinion that the ness for some time, but not until the specified day court had power to restrain these publications, declined of payment, and then failed, and was put in the

to do so upon an interlocutory application. See tho hands of a receiver. Held, (1) that the transaction

report, L. Rep., 6 Ch. Div. 582.

The executors of Joseph Thorley had commenced an was not against public policy; (2) that it was not action at about the same time as the company's action ultra vires as to the depositors represented by the was commenced against them, and on tho 14th June, receiver; (3) that it was upon a valid consideration; 1877, moved for an injunction “to restrain the defend(4) that an action was maintainable upon six months'

ant company, their servants, workmen, agents and notice and before the specified day of payment.

travellers, and representatives respectively, from selling, exporting or shipping, or causing or procuring, or

allowing to bo sold, shipped or exported, and from in DECEPTIVE USE OF ONE'S OWN NAME IN any manner representing, or causing or procuring to TRADE.

bo represented, any goods manufactured or sold by tho

defendant company as the manufacture or goods of ENGLISH COURT OF APPEAL, APRIL 27, 1880.

the late Joseph Thorley, or of the plaintiffs, his trus

tees and successors in business; and also to restrain THORLEY'S CATTLE Food Co. v. MASSAM. (42 L. T.

the company from using the plaintiffs' trade-mark." Rep. [N. S.] 851.)

Malins, V. C., refused the motion, and the plaintiffs

gave notice to the company, and discontinued their To advertise a caution to the public against a person's action. See the report, 36 L. T. Rep. (N. 8.) 848; L.

goods offered for sale, on the ground that they are not Rep., 6 Ch. Div. 574. what they pretend to be, and to state that he is foisting Subsequently the executors brought another action a bad article upon the public, is a libel, which, if not

for substantially the same relief. This was the action justified, will be restrained by injunction. A person is not entitled to use another's name in describing his

of Massam v. J. W. Thorley's Cattle Food Company, at goods in trade, though his own name is the same or he

the head of the present report. has assumed the same name, if by so doing he in fact

The two actions came on for trial together, and oocurepresents that his own goods are from the other's man- pied several days in Feb. and Nov. 1879.

Malins, V. C., came to the conclusion, upon the evi- ing the cattle food which is being sold by his executors, dence, that the two articles sold by the executors and whereas the only surviving Mr. Thorley (Mr. J. W. the company respectively were substantially the same, Thorley) has no connection whatever with the persons and in J. W. Thorley's Cattle Food Company v. Massam trading under the name of the late Joseph Thorley." he restrained the executors from issuing advertise- The packets in which the article sold by the comments injuring the company in their trade by repre- pany was made up were of the same shape and size, senting in effect that the cattle food sold by the com- and wrapped in the same colored paper as those used pany was spurious. He dismissed the action of Massam by Joseph Thorley and by his executors, and bore the V. J. W. Thorley's Cattle Food Company, being of same directions for use. But it was stated that the opinion that there was not sufficient evidence adduced company sent out their packets in boxes of a different by the plaintiffs on whom the burden of proof lay, to shape and size from those used by Thorley and his show that the company represented that they were the executors. successors, or were carrying on the business of Joseph

Glasse, Q. C., and Nalder, for the appellants, the Thorley. See the report, 41 L. T. Rep. (N. S.) 542.

executors. The executors appealed from both decisions. The facts proved in evidence appear in part in the

Napier Higgins, Q. C., and Townsend, for the reprevious reports. They were briefly these:

spondents, the company Joseph Thorley, the original maker of the cattle food,

In the first case the respondents' counsel were stopdied in 1876, having by his will directed that his busi

ped by the court. In the second, after hearing both ness should be carried on by his executors, with the

sides, the court did not call for a reply. assistance of his son Joseph Thorley.

For the cases relied upon in the arguments, see the J. W. Thorley, whose name was given to the plaint

report below. 21 Alb. L. J. 171. iff company, was a brother of the late Joseph Thorley, and both brothers were equally acquainted with the JAMES, L. J. In the first case we came to a decision secret for compounding the cattle food, which they really, practically and substantially, without hearing had obtained from a person named Fawcett. J. W. the respondents, the moment we had the two docuThorley had at one time been in the employ of his ments read to us, one of them throwing a light upon brother, and being acquainted with the business, he the other. We thought that the executors, the dewas, on the death of Joseph Thorley, induced to join fendants in that action, had said more than they ought in getting up a company, wbich was registered, with a to have said. They might have giveu warning by saycapital of 2001. divided into 4,000 shares of ls. each, J. ing that the company were not carrying on their busiW. Thorley having signed the memorandum of associa- ness, and were different from them, and they might tion as the holder of one share.

have said that they were not successors of Joseph In the action of J. W. Thorley's Cattle Food Com- | Thorley; but they went on to make allegations which pany v. Massam, witnesses were examined on both were really allegations imputing to them that they sides upon the question whether the article sold by the were foisting a bad article upon the public, and so on, defendants was the same as that manufactured by the stating in substance that it was a fictitious article, and plaintiffs. Among the witnesses for the plaintiffs were an article calculated to do mischief. We thought Mr. several well-known analytical chemists. The effect of Glasse had not proved his justification of that libel. their evidence was that, although the analysis they There was a libel if not justified; and having our athad made differed in some unimportant items from tention called to the evidence, we thought the executhat of the defendants, the variation was so slight that tors had failed to prove that there was any foundation the two articles, for all purposes of food, were essen- in point of fact for the assertion that the company were tially the same. The differences might be traced to foisting an article as something they were not entitled the variation in the quality of the ingredients used. to represent it, that is, independently of what I may On the other side, the evidence went to show that call the trade name or trade-mark. Now in the other there was an ascertainable difference between the two case, which is probably the more important one, I am compounds, and that as the defendants' mixture con- of opinion that the executors, the plaintiffs in the tained more spice aud more sugar, it was likely to be action, ought to have succeeded, and ought therefore more palatable to the cattle than the plaintiffs' mixture; to succeed before us. In the first place I will dispose but it was admitted that if the two mixtures were of this point which has been raised, that there is any placed before a cow in the same manger she would, ip | thing in the nature of an estoppel, or any thing in the all probability, be unable to distinguish the difference, nature of a bar to the plaintiffs' right to relief on any and would eat them both. In the second action, by ground of this kind by reason of their having disconthe executors against the company, witnesses were ex- tinued the former action of Massam v. J. W. Thorley's amined upon the question whether or not the travel- Cattle Food Company. The plaintiffs there failed to lers sent round the country by the company had or get an interlocutory injunction, and haviug failed to had not represented to the purchasers, or led them to do that they discontinued the action and paid the costs. believe, that J. W. Thorley & Co. were the successors That is not a res judicata which can be pleaded or dealt to the business formerly carried on by Joseph Thorley, with as res judicata. All that amounts to is, that the deceased, and that they were, in fact, carrying on that vice-chancellor did not then think a case had been business.

made out for the interference of the court upon interThe company had issued an almanac in which ap- locutory application. No doubt the vice-chanoellor peared a report and analysis by Dr. Hassall of “Thor- gave reasons in his judgment, which reasons he has ley's Food for Cattle,” which had been made at the also repeated in the present case, basing his decision request of Joseph Thorley, and on the article made by principally upon a case of James v. James, 26 L. T. him; and a list of the prizes obtained for cattle Rep. (N. S.) 568; L. Rep., 13 Eq. 421. Now I am of through the use of “Thorley's Food for Cattle;" opinion that that application for an injunction ought though in fact the condiment had been that supplied to have succeeded, assuming the facts to have been as by Joseph Thorley.

we are told they were, substantially the same as the There was also in the almanac the following state- facts now before us, because I am clearly of opinion ment: “The executors have continued to manufacture that the defendant company never had a right to use some food and sell it under the name of ‘Joseph Thor- the term “Thorley's Food for Cattle." The right to ley,' which they have registered as their trade-mark. use that name depends, or may be supposed to depend, The public may by this ruse be induced to imagine upon what was supposed to have been decided in Bur. that Mr. Joseph Thorley is still living and manufactur- gess v. Burgess, 3 De G. M. & G. 896, and afterward decided in James v. James. Now, Burgess v. Burgess that peculiar secondary signification to which I have has really been very much misunderstood, if it has referred. The word 'Glenfield,' therefore, as a debeen understood to say that anybody can always use nomination of starch, had become the property of the his own name as a description of an article, whatever appellant. It was his right and title in connection may be the consequence of it, or whatever may be the with the starch. Now the question is, has that propmotive for doing it, or whatever may be the result of erty been invaded by the respondent? and I take the it. No doubt Knight Bruce, L. J., made a very epi- whole proceedings of the respondent from beginning grammatic judgment, which probably has therefore to end to have been nothing in the world more than a caused it to be recollected more than that of Turner, contrivance for getting the word 'Glenfield' associated L. J., who followed him. Knight Bruce, L. J., in his with his manufacture. If that be true, what the rejudgment, said: “All the queen's subjects have a spondent has done has been done malo animo with a right, if they will, to manufacture and sell pickles and view of possessing himself of a denomination which sauces, and not the less that their fathers have done was the property of the appellant." I should like to so before them. All the queen's subjects have a right say a few words on that case of James v. James, which to sell these articles in their own names, and not the the vice-chancellor in this case considered himself less so that they bear the same name as their fathers; bound by. There may be a distinction, which I am nor is there any thing else that this defendant has going to point out, between that case and this, but if done in question before us.” Then he goes on: “Ile they be practically the same, which I am bound to say carries ou business under his own name, and sells his I think they are, for myself, I cannot concur in the essence of anchovies as ‘Burgess's Essence of An- decision in James v. James, nor in the reasoning which chovies,' which, in truth, it is. If any circumstance led to it, nor in the distinctions which were attempted of fraud now material had accompanied, and were to be taken. Now in James v. James a Lieut. James continuing to accompauy the case, it would stand very had invented a thing called a horse-blister —"Lieut. differently, but the whole case lies in what I have James's horse-blister.” It was manufactured by himstated." But the way in which Turner, L. J., puts it self, and he conveyed it to persons upon trust for some is this, which I take to be much more accurate: “I members of his family. Another person of the name concur in the opinion that this motion should be re- of James, a member of the family, then made it after fused with costs. No man can have any right to rep- the death of Lieut. James, and sold it under the same resent his goods as the goods of another person, but in name. Now Lord Romilly, M. R., was of opinion that applications of this kind it must be made out that the although during the life-time of Lieut. James that defendant is selling his own goods as the goods of could not be done, it could be done after his death. I another. Where a person is selling goods under a par- am utterly unable to perceive any ground for that disticular name, and another person not having that tinction. If Lieut. James had the trade-mark, or name is using it, it may be presumed that he so uses it what was equivalent to a trade-mark, during his life, to represent the goods so sold by himself as the goods if Lieut. James had the right to prevent anybody of of the person whose name he uses; but where the de. the name of James or otherwise from selling “Lieut. fendaut sells goods under his own name, and it hap- James's horse-blister," I cannot conceive how that pens that the plaintiff has the same pame, it does not right was not transmitted to his legal personal reprefollow that the defendant is selling his goods as the sentatives, or why his legal personal representatives goods of the plaintiff. It is a question of evidence in had not the same right as Lieut. James had to enforce each case whether there is false representation or not.” that which was his right of property, to use Lord That I take to be the accurate description of the law Westbury's expression, in connection with the manuwhich was really adopted by the House of Lords, which facture of a horse-blister. It is possible that in that now, of course, has settled the law paramount to all case the Master of the Rolls may have thought that the cases before in that case of Wotherspoon v. Cur- “Lieut. James's horse-blister" being a mere recipe, rie, L. Rep., 5 H. of L. 508, in which the House of anybody who had got the recipe might go and get it Lords differed from the view that I originally took in made up by any chemist or druggist, and therefore that case. I thought myself bound, in Wotherspoon that “Lieut. James's horse-blister” was merely an iny. Currie, to apply what I thought was the rule of law dication that it was made according to Lieut. James's as laid down in Burgess v. Burgess, and some other recipe, which I am bound to say I am unable to concur cases which seemed to have followed it, that a man had in; still there might be that distinction that there the a right to use a name if he was not telling that which recipe was the whole thing. Now I cannot apply that was untrue on the face of it. But the House of Lords to a case like the present, where two people could make came to the conclusion that there were things which the article in question from the same recipe, and yet were marks of fraud in that case. The words used make articles as dissimilar as possible in point of qualwere, "Currie & Co., starch and corn flour manufac-ity. Of course where we are dealing with an article turers, Glenfield.” Now the name of the starch of the of food, a condiment, the merit and the value of the plaintiff was "Glenfield Starch," and the defendant article depends on the great care which the one man was actually manufacturing starch at Glenfield for the might or might not take in selecting the very best artipurpose of enabling him to say that he was manufac- cles he was compounding together, and in the maniputuring it at Glenfield. There could be no doubt about lation of the articles, and the preservation of them that, and the House of Lords said the mere fact that during the course of manufacture. But I do not think he was really carrying on the manufacture at Glenfield, that there really is any substantial difference between and was not therefore telling a lie in that respect, did the two cases. What, as it appears to me, was in the not exempt him from the consequences of this, that mind of the Master of Rolls at the time, and what led the whole thing was intended and calculated to pro- to the fallacy, was this: there is no doubt that if a man duce on the mind of the purchasers the belief that his takes out a patent for a thing, and the thing is known article was the article of the plaintiffs. Lord West- as his patent, for instance, say "Flavell's Patent bury sums it up in a few words: "I take it to be clear Kitchener," and the patent expires, if the patent was from the evidence that long antecedent to the opera- known as the plaintiff's patent, then anybody else tions of the respondent the word 'Glenfield' had ac- might make the thing as "Flavell's Patent Kitchener," quired a secondary signification or meaning in connec- because Flavell's kitchener then does not mean made by tion with a particular manufacture. In short it had Flavell, but made according to Flavell's patent. What become the trade denomination of the starch made by have we got in this case? In the first place the thing the appellant. It was wholly taken out of its ordinary here was not invented by any Thorley at all, and meaning, and in connection with starch had acquired therefore "Thorley's food" cannot signify a food made

« SebelumnyaLanjutkan »