section gives full power to the Court to make such an order; but it seems to me to leave it absolutely and entirely in the discretion of the Court whether the order shall be made or not. Neither in the section referred to, nor in any other part of the act, so far as I have been able to find, has the legislature in any way defined the circumstances by which the Court is to be guided in the exercise of this discretion. I think, therefore, that, in determining the question whether such an order should be made or not, we must look to the facts on which the application for the order is grounded, and consider whether those facts present a case rendering it proper that the order should be made with a view to putting in force some of the provisions of the act, which would be available if the order be made, but would not be available under a mere voluntary winding-up.

How, then, does this case stand when looked at in this point of view? The case brought forward by this petition rests on the alleged breaches of trust and misconduct on the part of the directors and officers. But these are matters which may be examined into, and, if need be, corrected, without any order for winding up the company under the supervision of the Court. They can be reached, if not under the 165th section, at all events under the 138th section of the act. These charges, therefore, do not seem to me to furnish any ground for an order to wind up under supervision. Nor do I find anything in the circumstances of this case which would render it necessary to put in force any of the provisions of the act applicable to a winding-up under supervision which would not be available in case of a voluntary winding-up. It is to be observed, too, that the legislature clearly intended that the wishes of the contributories should be consulted, as appears by section 149. In this case the voluntary winding-up is under a special resolution of the company; and it is not alleged that the majority of the contributories desires that it should be put under supervision. On the contrary, the evidence, so far as it goes, leads to the opposite conclusion. I am of opinion, therefore, that this petition, so far as it seeks to have the company wound up under the supervision of the Court, was properly dismissed.

I think also that it was properly dismissed, so far as it seeks to have the company wound up by order of the Court. I very much doubt whether it is within the jurisdiction of the Court to make such an order upon the petition of contributories. The 145th section seems to give the right to such an order to creditors only, and, as it seems to me, not without reason, for the contributories must be bound by the resolution to wind up voluntarily; and it would be strange that any of them should afterwards be allowed to destroy that resolution by obtaining such an order.

There remains, then, the question, whether an order ought to have been made on that part of the prayer of the petition which seeks relief against the directors and officers. This question must depend upon the 165th and 138th sections. Looking at it with reference to the 165th section, I am not altogether satisfied that that section was intended at all to apply to the case of a voluntary winding-up, and that the view of the Master of the Rolls, who seems to have thought that it did not apply to such cases, may not be correct. But I think the question open to very considerable doubt; and it does not seem to me to be necessary for us to give any opinion upon it; for, looking both to the words of the section being permissive and not imperative, and to the variety of cases in which the Court might be called upon to apply the section, I am satisfied the Court was intended to have, and has, a discretion, whether the remedy given by the section should be put in force or not. So, if the case be looked at with reference to the 138th section, it is clear that a discretion is given to the Court.

This part of the case, therefore, resolves itself into this question, what the Court ought to do in the exercise of this discretion? Upon the facts of the case, as they stand upon the evidence before us, I am satisfied that no order can properly be made on this part of the prayer of the petition without further inquiry and investigation. I think that the evidence would not justify any immediate order against the parties whose conduct is impeached by the petition; but I am not prepared to say that there are not questions to be tried with these parties, if the appellants desire

might be declared that the contract was valid and binding against the co-heiresses.

The purchasers by their answer submitted whether there was a binding contract by reason of the auctioneer not having signed his name at the foot of the contract.

One of the co-heiresses was an infant when the bill was filed, but she had now attained the age of twenty-one years.

Mr. Malins and Mr. W. W. Cooper, for the plaintiff, contended that the co-heiressesat-law were not necessary parties to the conveyance, inasmuch as they had no estate or interest to convey, the legal estate being in the mortgagees, and the interest in the equity of redemption having already passed to the purchasers by the contract. They referred to

In re Williams's Estate, 5 De Gex, G. & Sm. 515; s. c. 21 Law J. Rep. (N.S.) Chanc. 437.

Mr. Pember, for the co-heiresses-at-law of the vendor, contended that they were not bound to join in the conveyance.

Mr. Nalder, for the purchasers, was only called upon as to the costs occasioned by their objection to the contract.

STUART, V.C.-I think the plaintiff wrong in his contention that the co-heiressesat-law of the mortgagor are not necessary parties to the conveyance: I am clearly of opinion that they are. The contest appears to me to have been raised under some great mistake. Declare that the contract is a valid and binding contract; decree specific performance, and declare that the plaintiff is bound to procure the concurrence of the co-heiresses-at-law of the vendor in the conveyance; the plaintiff to pay the costs of all parties, except those occasioned by the purchasers' objection to the contract, and these must be paid by the purchasers (2).

(2) Note.-See Viscount Downe v Morris, 3 Hare, 394, 404; s.c. 13 Law J. Rep. (N.s.) Chanc. 337; Hoddel v. Pugh, 33 Beav. 489; and note the doubt expressed by the Master of the Rolls as to the effect of the contract converting the land into money, in rendering the concurrence of the heir unnecessary. But in the above case, as well as in Hoddel v. Pugh, the contract appears to have been disputed.

[IN THE HOUSE OF LORDS.]

1865. March 31; April 3, 4; May 12.

THE LEATHER CLOTH COM

PANY (LIMITED) v. THE

AMERICAN LEATHER CLOTH

COMPANY (LIMITED). Trade-Mark-Property in-Colourable Imitation of-Misrepresentation in-Assignability of-Injunction.

Misrepresentations in a trade-mark, amounting to a fraud upon the public, will disentitle the person making such misrepre sentations to protection in a Court of equity against a rival trader; and, as a general rule, a mis-statement of any material fact calculated to impose upon the public will be sufficient for the purpose: e. g., a trade-mark representing an article as protected by a patent, when in fact it is not so protected, or a trade-mark falsely representing an article as the production of an artist of special skill, or of a place of special adaptation.

Though a man may assign his business and the use of his firm and of his trade-mark as belonging thereto, that proceeds upon the ground that the use of the name of the firm is not understood in trade to signify that certain individuals, and no others, are engaged in the concern.

Though a man may have a property in a trade-mark in the sense of having a right to exclude any other trader from the use of it in selling the same description of goods, it does not follow that he can in all cases give another person a right to use it or to use his name, because he cannot give to them the right to practise a fraud upon the public.

What amounts to colourable imitation. The distinction in the case of Edelsten v. Vick commented on.

This was an appeal from a decree of the Lord Chancellor (1), reversing a decree made by Vice Chancellor Wood (2); and the principal questions upon the appeal were, first, whether the appellants were entitled to be protected in the use of a particular stamp or trade-mark; and if they were, then, secondly, whether the respondents, by using another stamp or trade-mark, had infringed the appellants' rights.

The appellants and the respondents were

(1) 33 Law J. Rep. (N.S.) Chanc. 199.

(2) 1 Hem. & M. 271; s. c. 32 Law J. Rep. (N.S.) Chanc. 721.

rival joint-stock companies engaged in the manufacture of leather cloth, and each company uses its said stamp or trade-mark by affixing the same upon its "first quality" goods.

Leather cloth was first made in America, and Messrs. John R. & Caleb Pearson Crockett were among the first manufacturers of it. They carried on business in co-partnership together in the city of Newark, in the county of Essex, in the state of New Jersey, under the style or firm of "J. R. & C. P. Crockett"; and in the year 1852 their leather cloth was introduced into England through Nathaniel Shattswell Dodge and Henry Pomeroy Brewster, who were then carrying on business in copartnership together as merchants, under the style or firm of " Dodge & Brewster," at St. Paul's Churchyard, in the city of London.

The said firm of Dodge & Brewster dissolved partnership in the year 1854, when a new partnership between the said Nathaniel Shattswell Dodge and Lathorpe Solomon Bacon and Raffaelle Louis Giandonati was formed, under the style or firm of "Dodge, Bacon & Company," and the said Nathaniel Shattswell Dodge, Lathorpe Solomon Bacon and Raffaelle Louis Giandonati became partners in the said firm of J. R. & C. P. Crockett, and thereupon the name or style of that firm was changed to "J. R. & C. P. Crockett & Co."

In the year 1855 the said firm of J. R. & C. P. Crockett & Co." was dissolved, and the members thereof, together with certain other persons, established in America a jointstock company (duly incorporated pursuant to an act of the legislature of the state of New Jersey in that behalf) under the style of "The Crockett International Leather Cloth Company," for the purpose of carrying on the manufacture of leather cloth in America and in the kingdoms of Great Britain, France and Germany.

On the 20th of October, 1855, the said Nathaniel Shattswell Dodge obtained letters patent in England for an invention of "Improvements in machinery or apparatus for spreading or distributing waterproofing or similar compositions over webs or sheets"; and on the 14th of January, 1856, he also obtained letters patent in England for an invention of "improvements in the preparation or manufacture

of leather cloth." The leather cloth made according to the last-mentioned invention is a particular species or kind of leather cloth called and known in the trade as " Tanned Leather Cloth," in order to distinguish it from common or ordinary leather cloth, which is not tanned, and is not and never was a patent article. Letters patent for both the said inventions were also obtained in France, and dated respectively the 25th of November, 1855, and the 22nd of March, 1856.

The said firm of Dodge, Bacon & Co. acted as the agents in England of the Crockett International Leather Cloth Company, and the aforesaid patents were in fact the property of that company. The said firm of Dodge, Bacon & Co. procured a lease of a factory and ground at West Ham, in the county of Essex, in England, to be granted to them on behalf of the Crockett International Leather Cloth Company, and thereupon the said company commenced the manufacture of leather cloth at the said factory.

The Crockett International Leather Cloth Company affixed upon the "first quality" goods manufactured by them in their trade or business the stamp or trade-mark which the appellant, under the circumstances hereinafter stated, then used, and a copy of which trade-mark is engraved-see page 57, and distinguished as the Appellant's trade-mark.

In the year 1857 the Crockett International Leather Cloth Company resolved to sell their business in England; and by a deed-poll, dated the 2nd of May, 1857, under the corporate seal of the said company, and signed by the president thereof, the said company constituted the said Caleb Pearson Crockett its attorney for the sale of the lease, buildings, machinery, tools and fixtures belonging to the said company, situate at West Ham aforesaid, with the trade-marks and goodwill of the business of the company carried on there; and also all goods manufactured and unmanufactured, and in the process of being manufactured, and all materials used for manufacturing, and other things at the West Ham factory belonging to the said company, and also all patents issued in England or France owned by the said company, or to which the said company was entitled, or in which it had any interest.

The appellants, the Leather Cloth Company (Limited), were formed for the purpose of buying and carrying on the business in England of the Crockett International Leather Cloth Company, and were duly incorporated under the Joint-Stock Companies' Act, 1856, and a certificate of the Registrar of joint-stock companies in that behalf, bearing date the 22nd of May, 1857.

By an agreement in writing, dated the 21st of May, 1857, and made between the said Lathorpe Solomon Bacon, Nathaniel Shattswell Dodge, Raffaelle Louis Giandonati and one Jean Baptiste Athanase Lorsont, for themselves jointly and severally, and the said Caleb Pearson Crockett, as the attorney of and for the Crockett International Leather Cloth Company, of the one part, and John Murray, of Whitehall Place, in the county of Middlesex, gentleman, as agent for and on behalf of the then intended "Leather Cloth Company (Limited)," of the other part, it was agreed that the said Lathorpe Solomon Bacon, Nathaniel Shattswell Dodge, Raffaelle Louis Giandonati, Jean Baptiste Athanase Lorsont, and Caleb Pearson Crockett (thereinafter called the parties of the first part) should sell to the said intended company when incorporated, and that the said intended company should purchase, at the price or sum of 20,000l. and other the considerations therein mentioned, all those the letters patent obtained in France and in England, dated the 20th of October, 1855, the 25th of November, 1855, the 14th of January, 1856, and the 22nd of March 1856, for the manufacture of American leather cloth, and then belonging to them the said parties of the first part, and the full benefit and advantage thereof, and also the exclusive right of soliciting similar patents in Belgium and in all other countries in Europe, together with all the processes of manufacture used by them or their agents or workmen up to the day of the said agreement. And it was also agreed that the said parties thereto of the first part would not directly or indirectly carry on, nor would they to the best of their power allow to be carried on by others, in any part of Europe, any company or manufactory having for its object the manufacture or sale of productions in any way similar to the productions which were the subject of the said letters patent and then manufactured in the business or

manufactory so carried on at West Ham as aforesaid, and would not communicate to any person or persons the means or processes of such manufacture, so as in any way to interfere with the exclusive enjoyment by the said intended company of the benefits thereby agreed to be purchased.

Assignments of the said several patents, and of the lease, were afterwards duly made to the appellants, by two several indentures, each dated the 8th of July, 1857; and by one of such indentures, which was made between the said Nathaniel Shattswell Dodge of the first part, the Crockett International Leather Cloth Company, by the said Caleb Pearson Crockett, of the second part, and the appellants of the third part, the said several patents were assigned unto the appellants; and by the second indenture the said Caleb Pearson Crockett, as such agent and attorney as aforesaid, and by virtue of the power granted to him as aforesaid, granted and assigned unto the appellants all the machinery, tools and fixtures belonging to the Crockett International Leather Cloth Company at West Ham aforesaid, and the goodwill of and in the business theretofore carried on by them at West Ham aforesaid, together with full power and authority to and for the appellants to use all and singular the trade-marks theretofore used by the Crockett International Leather Cloth Company in the course of their business at West Ham.

Upon the establishment of the appellants' company and the completion by them of the aforesaid purchase from the Crockett International Leather Cloth Company, the appellants commenced and have ever since continued to carry on at West Ham aforesaid the business of leather cloth manufacturers, previously carried on by the Crockett International Leather Cloth Company, and the appellants adopted and have ever since continued to use in their said business, for the purpose of stamping their first-quality goods, the aforesaid stamp or trade-mark previously used for the same purpose by the Crockett International Leather Cloth Company.

The Crockett International Leather Cloth Company afterwards discontinued its business in America, and the said Messrs. J. R. & C. P. Crockett, with others, then established another company in America, called "The Crockett Leather Cloth Com