Appeal from a judgment of Cozens-Hardy J., noted [1901] W. N. 142. Haldane, K.C., Vernon Smith, K.C., H. Fellows, and Eustace Hills, for the plaintiff. Neville, K.C., Macnaghten, K.C., and Jessel, for the defendant. THE COURT (Collins M.R, Romer L.J. and Mathew L.J.) dismissed the appeal, stating that the law applicable to the case was settled, and that the decision of the learned judge on the facts was correct. Solicitors: Rooper & Whateley; Montagu, Mileham & Mon tagu. A. M. Company-Winding-up-Private examination —Attendance of The bank before going into voluntary liquidation commenced an action against Sir George Newnes, Limited, claiming 90,0007. damages for libel contained in a paragraph stating in effect that the bank was in liquidation. Shortly afterwards the bank passed resolutions for a voluntary winding-up. The liquidator in the voluntary winding-up obtained an order for the private Landlord and tenant-Lease-Covenant by lessee to pay and dis-examination under sect. 115 of the Companies Act, 1862, of C. A. FOULGER v. ARDING. March 12. charge impositions-Order by sanitary authority on lessor to construct water-closet-Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s. 4. Appeal from the judgment of a Divisional Court, reported [1901] 2 K. B. 151. A lease for years contained a covenant by the lessee to "pay and discharge all taxes rates including sewers main drainage assessments and impositions whatsoever which now are or may at any time hereafter during the continuance of the said term hereby granted be taxed rated assessed charged or imposed upon or in respect of the said premises or any part thereof on the landlord tenant or occupier of the same premises by authority of Parliament or otherwise howsoever (landlord's property tax and tithe only excepted)." There was no repairing covenant in the lease. Notice was given to the lessor by the Sanitary authority of the district, under the Public Health (London) Act, 1891, to abate a nuisance caused by a foul and offensive privy on the premises, by removing the privy, and constructing a water-closet in accordance with the by-laws of the London County Council. The lessor thereupon did the work required by the notice, and subsequently sued the lessee in the county court to recover the expense incurred by him in so doing. The county court judge held that the lessor was entitled under the before-mentioned covenant to recover the amount claimed. On appeal the Divisional Court (Lord Alverstone C.J. and Lawrance J.) reversed his decision. R. M. Bray, K.C., and Clavell Salter, for the plaintiff. several persons, amongst them being Mr. Haddock, for some time secretary of the bank, and Mr. Hoyle, solicitor to Sir George Newnes, Limited. At the examination of Mr. Haddock, counsel on behalf of the liquidator applied that Mr. Hoyle, the solicitor for the witness, should not be present, on the ground that he was also summoned as a witness in the matter, and Mr. Hoyle accordingly withdrew. Counsel for the liquidator then asked that Mr. Hoyle's managing clerk, an admitted solicitor, should also withdraw. Counsel for the witness objected, when the registrar stated that he would only allow Mr. Hoyle's managing clerk to attend on condition that he treated the matter as entirely private, and only used the information obtained from questions put to the witness for the purposes of re-examination, not communicating any part of the information thus obtained to any other person or persons whatsoever except his counsel, and he required an undertaking in these terms to be given. Counsel for Mr. Haddock objected to any such limitation being imposed, and as the registrar declined to allow him to be present without such an undertaking, and the witness was advised to refuse to answer any questions in the absence of his solicitor, the matter was adjourned to the judge for his consideration. The facts as to Hoyle's Case were as follows:-In the course of the examination of Mr. Hoyle as to certain documents belonging to the liquidator which he had in his possession he was asked, "From whom did you receive these documents?" This question Mr. Hoyle declined to answer, claiming the privilege of a solicitor; and on this point he was supported by the registrar. The liquidator now moved to discharge this ruling, and both questions came on together for argument. Muir Mackenzie and C. Montague Lush, for Haddock and 29 Ch. D. 560; and In re Rymer, [1895] 1 Ch. 19, establishing the Hoyle. BYRNE J. said it had long been decided that the examination of a witness under sect. 115 must be considered in the nature of a secret proceeding; the general right of a witness to be represented at these examinations by counsel and solicitor had not been disputed, but it had been argued for Haddock that he had a right to be represented by a particular solicitor because of the special circumstances of this case, which might make it necessary for this solicitor to use the knowledge thus obtained for collateral purposes, and that the solicitor must therefore be left free to make what use he thought proper of the information thus obtained for the subsequent protection of his client if necessary: this, in his Lordship's opinion, was putting the rights of the witness's solicitor too high, and the registrar was quite justified, in this case, in ordering the managing clerk to withdraw, unless he gave the undertaking required. With reference to Hoyle's Case, his Lordship came to the conclusion that there was nothing in the circumstances of that case to deprive the solicitor of the privilege so claimed. Solicitors: Helder, Roberts, Walton & Thomas, for Simpson & Simpson, Leeds; G. H. Hoyle. W. C. D. Feb. 26. Will-Legacy-Charity-Charitable intention—Non-existence of institution named in will-Lapse — Cy-près- Meaning of "charitable institution." The testatrix by her will gave pecuniary legacies to charities established for a variety of purposes, e.g., to aid consumptive persons, blind persons, orphans, deaf and dumb persons, epileptics, and paralytics. One of the legacies was of a sum of 5007. to "The Home for the Homeless, 27 Red Lion Square, London." After providing that in the event of any question arising as to the designation of any of the charitable institutions, or of any doubt existing as to which one of two or more of them it was intended to benefit, the decision should rest absolutely with her executor, and giving other pecuniary legacies, the testatrix provided that if, after payment of her funeral and testamentary expenses and debts and of legacies free of duty, there should remain any funds derived from the realization of securities or any other residuary moneys, the same should be "divided rateably among the various charitable institutions which are beneficiaries under this instrument." At the date of the will there was not, and there never had previously been in London, any charitable institution known as the "Home for the Homeless." After making the payments above mentioned, there was a fund distributable as residue among the charitable institutions which were beneficiaries under the will. H. M. Humphry, for the executor. H. Terrell, K. C., and W. M. Cann, for the next of kin. rule that if there was a gift to a charitable institution which Solicitors: W. Jessop; Tippetts; Smith, Fawdon & Low; The March 7. Buckley J. In re BORROWMAN'S PATENT. Application to fix a date for the hearing of a petition for revocation of a patent which had been transferred to the general list. Neither of the parties were ready for trial. ¡ A. J. Walter, for the petitioner, asked that the petition should be adjourned till the parties were ready. J. C. Graham, for the respondent. BUCKLEY J. When a petition is presented for the revocation of a patent, it simply goes to be answered in the ordinary way. The respondent is not there; therefore, although it may be almost a foregone conclusion that it must go into the general list, there is no one there to say so. I have inquired into the practice, and there seems to be no means of putting the matter into proper train. The petition goes into the petition list, and counsel are instructed to appear and ask that it should go into the witness list. I am desirous of making that a useful application; and I think that that is the time at which the judge J. M. Stone, for the School for the Indigent Blind, which was should be asked to fix a date at which the petition should be one of the charitable institutions named in the will. R. J. Parker, for the Attorney-General. BUCKLEY J.—after referring to Clark v. Taylor, (1853) 1 Drew. 642; Russell v. Kellett, (1855) 3 Sm. & G. 264; Fisk v. Attorney-General, (1867) L. R. 4 Eq. 521; In re Ovey, (1885) put into the witness list as an effective cause. This was not done in this case, and there is a further application before me, and I am now asked to direct that the petition should not come into the list for hearing until a fixed date. In other words, I am asked to do now what might have been done on the first The combination had been properly used as a trade-mark, though, as frequently happened in these cases, the whole combination was not visible at once. occasion. That is not a reasonable practice. When it comes | Player & Sons' Trade-mark, [1901] 1 Ch. 382, did not apply to into the petition list, as it must do, then in the presence of both an application to remove. parties liberty should be given to either of the parties to put it into the witness list for trial on or after a future day to be then fixed; that is, on a day when they are ready for trial. That has not been done, and counsel are here now and are not If, as suggested, the registration was too wide, the defenready to go on with the petition. I therefore order the petition dants' remedy would be restriction, and not removal. They to be struck out of the list, and I give liberty to either of the had made no application to restrict the mark to the articles for parties to set it down when it shall be ready for trial on or which it was used. The motion would therefore be dismissed. after a day which I will fix now, and not before. Solicitors: W. J. & E. H. Tremellen, for Blair & Seddon, [It was arranged that the day should be the 1st of May, 1902.] Manchester; Woodcock Ryland & Parker, for Tweedale, Sons & Solicitors: Hind & Robinson; Crossman & Prichard. Lees, Oldham. G. R. A. H. C. R. KING'S BENCH DIVISION. Swinfen Eady J. March 6. In re A. & A. CROMPTON & Co.'s TRADE-MARK. Trade-mark-Rectification of register-Combination of devicesEssential particulars-Prior mark-Non-distinctive addition -Simultaneous visibility—Too wide registration-Patents, Designs, and Trade Marks Acts, 1883 (46 & 47 Vict. c. 57), s. 64; 1888 (51 & 52 Vict. c. 50), s. 10. Motion. This was a motion by the defendants to an action for infringing the plaintiffs' trade-mark, asking to remove that trademark from the register on the ground of insufficient statement of the essential particulars, want of subject-matter, non-user as a trade-mark, and a too wide registration. The trade-mark consisted of a combination of three labels, the largest of which was non-distinctive, and the other two, though containing devices, were mere reproductions of a prior registered mark belonging to the plaintiffs. Licensing laws-Offences-Selling without licence—Sale by club to agent of member-Licensing Act, 1872 (35 & 36 Vict. c. 94), s. 3. Case stated by justices for Wolverhampton on appeal from a conviction under sect. 3 of the Licensing Act, 1872, for selling intoxicating liquors by retail without a licence. The appellant was a waiter at a working-men's club, which was found by the magistrate to be a bona fide club, and was not licensed for the sale of intoxicating liquors. The appellant supplied a bottle of stout to the wife of a member upon a written request duly signed by the member; the price was handed to the appellant by the wife, who took the stout home to her husband, and the latter drank it. The justices found that there had been a sale to a non-member, and convicted the appellant. The trade-mark was registered on the 18th of June, 1894, the application, to which the labels were affixed, merely stating, according to the form now officially adopted for combination a applications: "The essential particular of the trade-mark is the combination of devices, and we disclaim any right to the exclusive use of the added matter except in so far as it consists of our own name and address." The plaintiffs had hitherto used the trade-mark by pasting the largest and smallest labels on different sides of the outside wrappers of their bundles of yarn, and the medium label on the inside wrappers, so that the whole combination was never visible at once. It was also suggested that the plaintiffs, while registering the mark for an entire class, only intended to use it for part of that class. Clare and Kerly, for the defendants. SWINFEN EADY J. held that the essential particulars were sufficiently stated within sect. 64 of the Patents, Designs, and Trade Marks Act, 1883, as amended by the Act of 1888, as any one could see the "combination of devices" by looking at the labels on the register. The combination was good subject-matter of a trade-mark within sect. 64, and having been registered could not be removed at the instance of a rival trader merely because it Hobson, for the appellant, contended that as the member of bona fide club had a right to be supplied at the club with intoxicating liquors for consumption off the premises (Graff v. Evans, (1882) 8 Q. B. D. 373), and as the club was found to be bona fide club, the ordinary law of principal and agent applied, and the delivery of the stout to the wife as the member's agent was not a sale to a non-member. a Arthur Powell, for the respondent, contended that there was no power in a member to send an agent to the club to fetch intoxicating liquor for consumption off the premises, and cited Woodley v. Simmonds, (1896) 60 J. P. 150. THE COURT (Lord Alverstone C.J., Darling and Channell JJ.) held with reluctance that the circumstances shewed that there had been merely a transference of property to the duly authorized agent of a member, and not a sale to a non-member, and consequently that no offence had been committed under sect. 3 of the Licensing Act, 1872; they therefore allowed the appeal. Conviction quashed. Solicitors for the appellant: Indermaur & Brown, for A. Turton, Solicitor for the respondent: W. R. Bennett, for Hooper & Adm. PROBATE, DIVORCE, AND ADMIRALTY Collision Damage Control by dock-master, his deputies, or assistants--Harbour Docks and Piers Clauses Act, 1847 (10 Vict. c. 27), s. 53-Co-defendants-Costs. On the 28th of October, 1901, about 2 p.m.-the weather being fine and clear, with a fresh breeze from the S. W., and the tide the last of the flocd-the plaintiffs' screw steamship William Adamson, of 1986 tons gross register, arrived off the entrance of the Victoria Dock, of which the defendants the London and India Docks Company are the proprietors. The dock-master was standing on the upper pier-head, and gave the necessary directions for the vessel to enter the dock. At the same time a lock foreman in uniform on the lower pier ordered the ketch Mystery, belonging to the other defendants, aud which was lying, head down river just below the lower pierhead, to pass her stern rope ashore, so that it might be made fast, and with that rope over her port quarter, to haul on it so as to swing round with the tide and be in a position to enter the dock. By a second (and as it was found, improper) order, the lock foreman ordered four barges, outside which the ketch had been lying, to pass their stern ropes ashore, and swing in the same way, with the result that the ketch, being unable to check herself by the forward rope which had been fast to the outermost of the four barges, swung too rapidly, and, being caught by the wind on her port bow, came into contact with the stern of the William Adamson, the bowsprit of the ketch damaging the wheel of the steamer. Court against the owners of the Mystery to recover the damage sustained, and the London and India Docks Company were subsequently added as second defendants. The learned judge, who was assisted by nautical assessors, gave judgment against both defendants, on the ground of the improper order of the official of the dock company, and the absence of any statutory exemption relieving the owners of the ketch from liability for the tort committed. On appeal : THE COURT (Sir F. H. Jeune P. and Gorell Barnes J., assisted by two of the Elder Brethren of the Trinity House) held that the second defendants (the dock company) were alone liable for the damage sustained by the plaintiffs' vessel, on the ground that the lock foreman was a deputy or assistant of the dock-master within the meaning of rule 2 of the company's by-laws, whose orders those in charge of the ketch were bound under the provisions of the Harbour Docks and Piers Clauses Act-to obey, and that the relationship of master and servant did not exist between the dock official and the other defendants, the owners of the ketch, so as to render them responsible for his negligent order. THE COURT further held-following The River Lagan, (1888) 6 Asp. M. L. C. 281-that the plaintiffs acted reasonably in joining both parties as defendants, and that, as the defendant dock company threw the blame on the other defendants, but were themselves alone to blame, the plaintiffs' costs again! both defendants, and the costs of the owners of the ketch in the Court below and on appeal, must fall on the dock company. Scrutton, K.C., and Dawson Miller, for the appellants (defen dants), the owners of the ketch Mystery. Pickford, K.C., and Bucknill, for the appellants (defendants) the London and India Docks Company. Aspinall, K.C., and Balloch, for the respondents (plaintiffs) the owners of the William Adamson. Solicitors: Clarkson, Greenwell & Co.; Turner, Son & Foley T. L. M. The plaintiffs commenced an action in the City of London Charles E. Harvey. NOTICE TO SOLICITORS. SATURDAY, March 15. Ford & Co. v. Bembrose & Sons, Limited. Appeal from Kennedy and missed. TUESDAY, March 18. Ford & Co. v. Bembrose & Sons, Limited. Appeal from Kennedy and With the view of insuring the greatest possible accuracy and rapidity in the various publications connected with the Law REPORTS, the Council will be obliged, if the Solicitors to whom Sidebottom v. Hooton Park Club, Limited. Appeal from Jelf J. Disapplication is made by any Reporter acting for the Council will as soon as possible after application furnish the necessary Papers, together with any information in their power as to the Frangopul & Co. v. Lomis & Co. Appeal from Kennedy J. Part names of the various Solicitors engaged in the case. At the same time, the Council thankfully acknowledge the assistance they have already received from so many members of the Profession in furnishing the papers required to prepare accurate reports. TABLE OF CASES. heard. WEDNESDAY, March 19. In re Trade Mark "Uneed," No. 221,736. Appeal from Cozens- Appeal from Cozens-Hardy J. Cur. adv. vult. 60 North Queensland Insurance Company, Limited v. Rhenish Westphalian |