v. Wood , 1892 shall be guilty of an offence under the 'Local Government (Scotland) Act 1889,' section 57, and shall be liable on summary conviction to a penalty not exceeding forty shillings in each case. In March 1892 Abraham States Eastburn, medical specialist, Glasgow, and Thomas Jones, billposter there, were charged in the Justice of Peace Court for the county of Edinburgh, by the Procurator-Fiscal of Court, with having contravened section 1 of the said bye-laws-"in so far as on the eighth day of March 1892, or about that time, the said Abraham States Eastburn did cause to be affixed, and the said Thomas Jones did affix (1) on a wooden hoarding alongside the public road, on the estate of Calder House, in the parish of Mid-Calder and county of Edinburgh, two bills without the consent of the owner and occupier; (2) on a wooden hoarding alongside of the public road leading to West Calder on the estate of Calder House aforesaid, twentyseven bills, without the consent of the owner and occupier; and (3) on a wooden gate at Calder Hall North Gate, in the parish of Kirknewton and county of Edinburgh, three bills without the consent of the owner and occupier." The accused, inter alia, "objected to the competency of the complaint on the ground that the provisions of the section of the bye-laws founded upon were illegal, in respect that they were ultra vires of the powers conferred by the 57th section of The Local Government Act upon the County Council." The Justices repelled the objection, and after a proof convicted the accused, and adjudged each of them to pay £1 of penalty, and in default to be imprisoned for seven days. Eastburn and Jones took a case, in which the following question-at-law was submitted for the opinion of the Court"Whether the County Council were empowered by sec. 57 of the Local Government (Scotland) Act 1889 to make bye-law 1." The appellants argued-This bye-law was ultra vires of the County Council. The bills did not fall under the head of nuisances. A nuisance was something offensive, and there was no proof that these bills were offensive. Argued for the respondent-This bye-law was not in excess of the powers of the County Council under sec. 57 of the statute. The powers there given them were very wide. Anything that annoyed was a nuisance, and the disfigurement of buildings, &c., by sticking bills on them fell under that term. The bye-law in question was taken verbatim from the Glasgow Police Act 1866, sec. 149, and had never been considered extravagant-Kedger v. M'Phee, November 22, 1888, 2 Wh. 107. At advisingLORD YOUNG The question which is before us in this case is whether the County Council of Midlothian had power to make the bye-law No. 1, against which the appellants have been held to have offended. It is an interesting case, because it is the first instance of the making of local legislation which has come before us. Under the 57th section of the Local Government Act the County Council is entitled to make bye-laws, in fact to legislate in regard to certain matters within the county of Midlothian, viz., the prevention of vagrancy, and the prevention and suppression of nuisances within the county. They have made this piece of legislation upon which these two appellants were convicted, and we are asked to say whether it is in the power of the Council to pass such a bye-law. The first question is, whether we have power to determine that question? I am of opinion that we have the power. The question has been frequently raised and decided in the English Courts, and always in the view that the Courts have the power to consider whether the right to make any particular bye-law is within the jurisdiction of the county council. We are therefore asked if it was in the power of the County Council to make this bye-law. Their power depends upon the words of the 57th section of the Local Government Act. That section provides that the County Council may make "such bye-laws as to them seem meet for the administration of the affairs of the county for the prevention of vagrancy, and for prevention and suppression of nuisances not already punishable in a summary manner by virtue of any Act in force throughout the county." This is a limited power of general legislation granted to the County Council for the suppression of vagrancy and nuisances, which are not otherwise punishable summarily by statute. Now, the County Council, in the first of the bye-laws framed by them to this end, enacted that "Every person who writes upon, soils, defaces, or marks any wall, fence, hoarding, or building with chalk or paint or in any other way, or who without authority affixes or causes to be affixed to any church, chapel or school-house, or, without the consent of the owner and occupier, to any other building, or to any wall, fence, hoarding, door, gate, pillar, post, tree, or noticeboard lawfully exhibited, any bill or other notice," should be liable in a penalty. Now, there are three enactments contained in this clause. The first has nothing to do with the question whether authority is given or not, or whether the consent of the owner and occupier is given, which elements are only applicable to the 2nd and 3rd enactments in the clause. Under the first, if anyone is so wicked as to write upon or mark walls with chalk, he is to be punished at once. Now, one would not say that that was a very happy specimen of legislation, and really penal legislation requires more consideration and more skill than has here been resorted to to express it. But the particular enactment in clause 1 with which we are now concerned is the third, "or without the consent of the owner or occupier, affixes or causes to be affixed to any other building, or to any wall, fence, hoarding, door, gate, pillar, post, tree, or notice-board lawfully estab lished, any bill or other notice." So that any person putting up any notice on a tree or dyke within the county of Midlothian, without the consent of the owner and occupier, is to be subject to a penalty of 40s. I Is it within the power of the County Council to make such an enactment? There is nothing said here about nuisance. quite appreciate the desirability of putting a stop to what is popularly called the billsticking nuisance, and I do not think it would require any very great skill to frame an enactment to suppress it, but to say that anybody who puts up a bill upon any fence at the side of the road within the county of Midlothian is to be liable to a penalty of 40s., and in default to imprisonment, is extravagant as a piece of serious legislation. Nuisance may be brought into any case of billsticking by the character or size of the bill, the place selected for putting it up, or other reasons, but to say that every bill stuck upon a fence by the roadside is a nuisance is to say what cannot be maintained as a legal proposition. A notice put up on a fence by the roadside that a charity sermon is to be preached in the parish church for behoof of the destitute sick would be a bill put up in the county of Midlothian, and probably the owner and occupier of the fands enclosed within the fence might not have been convened to give their consent to the putting up of the notice, so that that would be an offence under this section. I may notice that the announcement of such a sermon would of itself be an offence under another of these bye-laws, viz., the 5th. That section provides that "Every person found begging," (it is not said where, except within the county of Midlothian), "or placing themselves, or otherwise acting so as to induce, or for the purpose of inducing the giving of alms," is to be liable to summary conviction, and a penalty of 40s. The purpose of a charity sermon is to induce the giving of alms, and the notice might make the person who put it up liable for the penalty. Now, I think the provisions of the 5th section are just as clearly beyond the powers of the county council as those of the first, although it is not necessary for the Court to decide that point. The practical conclusion I arrive at is, that if the County Council are going to penally legislate upon bill-sticking which may be a nuisance, they must really resort to some-one with intelligence enough to frame the enactment. Bill-sticking may subject those transgressing to a penalty and imprisonment, and may be put down by a bye-law applicable to the case. This bye-law, however, is not limited to any case. It refers to the county of Midlothian, and if the Convener of the county were to ask in his library for charity in support of any object, he would be liable in a penalty upon the law as so expressed. There is another enactment-the 2ndto which I should like to call attention (although it is not within the case), which has regard to what may be called the paper nuisance-a very serious one. It is a very serious one, especially in the streets of Edinburgh, where whole newspapers seem to be thrown down and allowed to blow about, July 14, 1892. and its suppression is worthy of attention. The 2nd enactment runs thus-"Every person who causes any hand-bill, waste or soiled paper, rags, or other similar material to be strewn, laid down, or to fall upon any street, road, or other thoroughfare or adjoining fences," is to be liable in a penalty. One of the first cases which occurs to one is that of a paper chase. Any boy laying down paper as scent at the part of a fence leading into a field and adjoining a thoroughfare could, under the enactment, be punished by fine or imprisonment although there was no nuisance whatever. That is altogether unreasonable, and the enactment might be quite easily expressed so as to repress the paper nuisance without using language which would comprehend such a case as that. Therefore, upon the case before us, my opinion is that this local bye-law was beyond the powers given to the Act of 1889 to the County Council to suppress nuisances by means of a bye-law. That is sufficient to dispose of the case, and to set aside the conviction. LORD TRAYNER-I am of opinion that this bye-law is beyond the powers of the County Council. The LORD JUSTICE-CLERK concurred. Rhind. Counsel for the Respondent-Gillespie. Agent-George M. Wood, S.S.C. COURT OF SESSION. Thursday, July 14. FIRST DIVISION. STEWART v. BOWIE AND OTHERS. Trust Sequestration of Trust - Estate Appointment of Judicial Factor. Where a deadlock occurred in the administration of a trust in consequence of the trustees being equally divided in opinion in regard to the choice of a lawagent, the Court, on the petition of the party entitled to the liferent of the trust-estate, without removing any of the trustees from office, sequestrated the estate and appointed a judicial factor. Miss Agnes Dalgleish Stewart died on 28th January 1892 leaving a trust-disposition and settlement, whereby she disponed her whole estate to the Reverend David Morrison, John Hunter Bowie, William Hunter Bowie, and William Alexander, the acceptors and survivors or acceptor and survivor, in trust for the purposes mentioned in the deed. In the third place, she directed the trustees to pay the liferent of the whole July 14, 1892. residue of her estate to her niece Dorothea Gordon Stewart, and upon her death to pay and convey the capital to her sisters Mrs John Hunter Bowie and Mrs M'Laren equally, whom failing to their children, declaring that the fee of the residue should vest at the death of the liferentrix. At a meeting of the relatives of Miss Stewart held shortly after her death, for the purpose of having her will read, Mr J. H. Bowie, who was the only trustee present, intimated that he had decided to put the affairs of the trust into the hands of Messrs A. & A. Jenkins, solicitors, Stirling, and on 5th February he requested the Messrs Jenkins to call a meeting of the trustees for the 9th. Mr Morrison was at this time on the Continent, and Mr Alexander did not attend the meeting. The only trustees accordingly present at the meeting were the Messrs Bowie, who accepted office, and passed a resolution appointing Messrs A. & A. Jenkins agents of the trust, and empowering them to take the usual steps to procure confirmation, and to apply to Mr Alexander, who had been Miss Stewart's agent, for the documents belonging to her in his possession. Mr Morrison having returned from abroad on 13th February, Mr Alexander thereafter called a meeting of trustees for the 1st March, which was attended by all the trustees. At this meeting Mr Morrison and Mr Alexander accepted office, and Mr Morrison having moved that Mr Alexander should be appointed agent in the trust, Mr Alexander intimated his acceptance of the appointment. The Messrs Bowie did not agree to this appointment. Mr Alexander subsequently, with Mr Morrison's consent, in order to remove the deadlock which had occurred in the administration of the trust, wrote to the Messrs Bowie waiving his own appointment, and offering to concur with them in the appointment of any of four law-agents named, but to this proposal the Messrs Bowie would not accede. On 29th June a petition was presented by Miss Dorothea Stewart, who was entitled to the liferent of the trust-estate, craving the Court to sequestrate the trust-estate, and if necessary to remove the trustees from office and to appoint a judicial fac tor. The petitioner stated that in consequence of the difference which had occurred among the trustees nothing had yet been done by them in the administration of the trust; that confirmation had not been taken out, and that the revenue accruing on the trust-estate was not being uplifted, with the result that she was being kept out of the enjoyment of her liferent, and that she believed that there was no prospect of the deadlock which had occurred being removed. Mr Morrison and Mr Alexander lodged answers. They admitted the truth of the statements made in the petition, and stated that to allow Messrs Bowie's nominees to be appointed law-agents in the trust would be, in their opinion, to virtually surrender the management of the trust into the hands of the Messrs Bowie; that there were special reasons why this should not be; that both the Bowies were undischarged bankrupts, and that Mr W. H. Bowie was indebted to the trust. He therefore submitted that unless the Messrs Bowie would adopt a more reasonable course of conduct, the only alternatives left were either to appoint a judicial factor or to remove the Messrs Bowie from office. The Messrs Bowie, along with Mr J. H. Bowie and Mrs M'Laren, the presumptive fiars of the trust-estate, also lodged answers. They objected to the petition being granted, and submitted that there was no good reason for removing the trustees from office, and that the appointment of a factor was neither necessary nor expedient, as there had been no undue delay on the part of the Messrs Bowie, and they were willing to take whatever steps might be necessary for the due administration of the trust. The petitioner argued-A deadlock had occurred in the administration of the trust, and the petitioner was entitled either to - Adie v. have the estate sequestrated Mitchell, December 19, 1835, 14 S. 185; Forbes v. Forbes, February 14, 1852, 14 D. 498; or to have the trustees, whose unreasonable conduct had caused the deadlock, removed from office--M'Whirter v. Latta, November, 15, 1889, 17 R. 68. The Bowies should not have transacted important trust business without giving Mr Morrison a reasonable opportunity of being present-Wyse v. Abbot, &c., July 19, 1881, 8 R. 983. Argued for the respondents Bowie and others-The question was merely as to the choice of an agent for the trust. These respondents thought that the Messrs Jenkins had been properly appointed, but if they were wrong they would give way. The mere fact, however, that trustees could not act harmoniously was not a sufficient ground for removing the trustees or for Hope v. sequestrating the trust-estate Hope, October 29, 1884, 12 R. 27: Neilson & Others, February 23, 1865, 3 Macph. 559; Lynedoch v. Ochterlony, February 15, 1827, 5 S. 358; Laird v. Miln & Mitchell, December 7, 1833, 12 S. 187. Counsel for the respondents Morrison and Alexander was also heard. At advising LORD PRESIDENT - I think the proper course to take is to sequestrate the estate. It is not necessary to enter minutely into the merits of the dispute between the two sets of trustees. It is probably sufficient to say that a deadlock has occurred in the administration of the trust, and I think the liferentrix-more especially as the cost of the factory will fall upon her-is well entitled to say that it cannot go on, and that the knot should be cut by the appointment of a judicial factor. But perhaps it is right to say that I think the responsibility for the present state of matters rests with the Messrs Bowie. They took up, it seems to me, with precipitation at the outset a position which boded ill for the management of a trust where there were diverse and possibly conflicting interests. Accordingly, I think the other two gentlemen were right in not retiring from the trust, and in resisting the course taken by their colleagues, which was of an arbitrary nature and not likely to inspire confidence in their management. I think Mr Morrison and Mr Alexander were further justified in not leaving this estate, in which there are, as I have said, diverse interests, in the hands of gentlemen who are undischarged bankrupts, and whose interests are identified with those of the presumptive fiars of the estate. I should not therefore contemplate the resignation of Mr Morrison and Mr Alexander as a satisfactory solution of the difficulty which has arisen, and on the whole matter I think the best course is to sequestrate the estate and appoint a judicial factor. LORD ADAM, LORD M'LAREN, and LORD KINNEAR Concurred. The Court sequestrated the trust-estate and appointed a judicial factor. Counsel for the Petitioner-Sym. Agents -Cumming & Duff, S.S.C. Counsel for the Respondents Morrison and Alexander-C. N. Johnston. AgentsCumming & Duff, S.S.C. Counsel for the Respondents Bowie and Others-Wilson. Agents-James Forsyth, S.S.C. Friday, July 15. FIRST DIVISION. [Lord Low, Ordinary. GREAT NORTH OF SCOTLAND RAILWAY COMPANY v. MANN. Trade Name Hotel Variation of Name. Distinguishing Held that a person who had come as tenant to the "Palace Hotel after it had been so named by the landlord, and had occupied it for thirteen years, was not entitled, to the prejudice of the business to be carried on there by the landlord's representatives, to take that name with him to other hotel premises in the same city; and that the prefixing of his own name did not constitute a sufficiently distinctive addition. The late John Keith, merchant, Aberdeen, erected a block of buildings upon ground situated at the corner of Union Street and Bridge Street there. These buildings were called Palace Buildings, and a portion of them has been all along occupied as an hotel, and known by the name of the "Palace Hotel," which name was given to it by John Keith, and was laid in tiles in the main lobby of the hotel. Upon 4th June 1878, on the bankruptcy of the then tenant, Charles Mann obtained from the proprietors a lease of the premises which, after renewal, expired at Whitsunday 1891. At the time when he took the lease Mr Mann purchased from the proprietors of the premises the goodwill, furniture, fittings, and stock-in-trade, and purchased and took over the business as a going concern. During his tenancy the hotel was called the "Palace Hotel," and also "Mann's Palace Hotel." Of the four large signboards, placed one on each of the four sides of the building, two bore "Mann's Palace Hotel," and the other two "Palace Hotel." Large and prominent brass plates affixed to each side of the hotel's two windows opening from Union Street and Bridge Street respectively bore each" Mann's Palace Hotel," and the notepaper supplied for the use of the residents in the hotel was headed "Mann's Palace Hotel." Mr Mann's telegraphic address in Aberdeen was "Palace Hotel." Pre The Great North of Scotland Railway Company purchased from Mr Keith's trustees, with entry at Whitsunday 1890, the whole of the Palace Buildings, for the purpose of carrying on the said Palace Hotel and hotel business upon the expiry of Mr Mann's lease. vious to Whitsunday 1891 Mr Mann took a lease of the Bath Hotel, as from that date, and prior to his removal he took down from that hotel its name and sign and put up on the front and gable respectively two signboards which he had removed from the Palace Hotel, bearing the words "Mann's Palace Hotel" on three separate pieces, one below the other. In removal notices also he advertised his new premises as "The Palace Hotel" and as "Mann's Palace Hotel." Upon 6th May 1891 the Great North of Scotland Railway Company lodged a note of suspension and interdict against Mr Mann complaining of the respondent's actings, and praying the Court "to suspend the proceedings complained of, and to interdict, prohibit, and discharge the respondent Charles Mann, and his agents, servants, and all others acting for him, from publishing, or causing to be published, notices or advertisements of removal in terms set out in statements hereto annexed, or terms of a like import and effect, and from exhibiting or using the name 'Palace Hotel," or "Mann's Hotel,' or any name framed so as to be a colourable imitation of the name by which the complainers' said hotel is commonly known, or mislead the public, as the name of any hotel carried on or to be carried on by him in the premises lately occupied by the Bath Hotel Company, Limited, or in any premises situated in Aberdeen, and from using the name 'Palace Hotel' as his registered telegraphic address in Aberdeen, except while tenant of and in connection with the Palace Hotel in Palace Buildings, owned by the complainers; and to ordain the respondent forthwith to take down and remove the two signboards bearing the name 'Palace Hotel,' put up by him on the front and gable respectively of the said Scotland Ry.Co. 15, 1892 Bath Hotel premises, and to grant interim interdict and decree of removal. They stated-"(Stat. 10) The said actings or threatened actings and representations of the respondent Mann are intended and calculated by him to mislead and deceive the public into the belief that the hotel premises to be occupied or now occupied by him in Bath Street are the same as those formerly tenanted by him as aforesaid, and to deprive the complainers of the benefit accruing from the said distinctive name, and to divert or attract custom to a material extent from the 'Palace Hotel' to his own hotel premises by pirating the said distinctive name, or using some merely colourable imitation of it. In particular, the addition of the name 'Mann to the name 'Palace Hotel' is not sufficient to distinguish the respondent's hotel from the complainers' hotel, but is intended and certain to mislead and deceive the public to the injury of the complainers. In these circumstances his said actings and misrepresentations are illegal. They have already caused, and will continue unless prevented to cause serious injury to the complainers' rights and interests in the said property, and to mislead and deceive the public. Accordingly the present application is rendered necessary. The complainers reserve all claims of damage competent against the said respondent.' The complainers pleaded-"(1) The complainers being proprietors of and holding a licence for their said hotel known by the distinctive description or designation of the 'Palace Hotel,' are entitled to interdict against the use or exhibition of the name 'Palace Hotel,' or any colourable imitation thereof by the respondent Charles Mann, as the name of his said hotel premises in Bath Street or as his telegraphic address. (2) The addition of the name 'Mann' to the name 'Palace Hotel' not being distinctive, but framed by the respondent in order to mislead the public, and unfairly attract custom to his hotel premises, the respondent should be interdicted from exhibiting or using Mann's Palace Hotel' as the name of his said hotel premises. (3) The respondent's said actings or threatened actings and representations being intended or calculated to mislead and deceive the public and wrongously attract custom from the complainers' Palace Hotel to the respondent's hotel prrmises, interdict should be granted in terms of the prayer of the note." The respondent explained that "the name 'Palace Hotel' was given to the hotel in question by the respondent's predecessor in the tenancy, who originated the business therein carried on. The respondent purchased the goodwill of that business, and by his own efforts and expenditure of money he very greatly increased its size and reputation; and inasmuch as the complainers had not purchased the goodwill of the said business, but merely the premises as described in their title-deeds, the respondent considered that he was entitled to appropriate the said name for his new hotel." VOL. XXIX, He offered (Ans. 8) "to abandon the use of the name Palace Hotel' standing alone, and to confine himself to the use of the name 'Mann's Palace Hotel,' under reservation of all his pleas." He pleaded-(1) The complainers' averments are irrelevant and insufficient to support the prayer of their note. (2) The complainers' averments being unfounded in fact, the note ought be be refused. (3) In respect that the complainers are not the proprietors of the goodwill of the said hotel business, and have no right to use the name 'Palace Hotel,' interdict ought to be refused. (4) The respondent's actings complained of being legal and not in violation of the complainers' rights, the note ought to be refused. (5) In respect of the offer contained in Ans. 8 this action should be dismissed." Upon 22nd May 1891 the Lord Ordinary (Low) passed the note, and on caution as offered interdicted the respondent from "publishing or causing to be published notices or advertisements of removal in the terms set forth in statements appended to the note, or in terms of like import and effect, and from exhibiting or using the name Palace Hotel,' or Mann's Palace Hotel,' by signboards or otherwise, and from using the name 'Palace Hotel' as his registered telegraphic address in Aberdeen." The respondent reclaimed to the First Division, who on 2nd June 1891 pronounced the following interlocutor-"Interdict the respondent from exhibiting or using by signboards or advertisements the name 'Palace Hotel' without some distinctive addition, also from using the name 'Palace Hotel' as his registered telegraphic address in Aberdeen: Quoad ultra recal the interim interdict, and decern." A record having been made up, Lord Low upon 28th November 1891 allowed the parties a proof of their respective averments. "Opinion. The complainers have purchased, with entry at Whitsunday 1890, a block of buildings at the corner of Union Street, and Bridge Street, Aberdeen, which have been called 'Palace Buildings,' and which were built by the late John Keith, merchant, Aberdeen. The complainers aver that ‘a portion of these buildings has been all along occupied as a hotel, and known by the distinctive name of the Palace Hotel,' which name was given to it by the said John Keith, and was laid in tiles in the main lobby of the hotel.' The complainers acquired the property for the purpose of carrying on a hotel business in the hotel, and in the Licensing Court held in April 1891 they obtained a hotel licence. "The respondent was tenant of the hotel under a lease which expired at Whitsunday 1891. He then removed to the Bath Hotel, which is in the immediate vicinity of the Palace Hotel. The respondent has altered the name of the Bath Hotel, which he now calls the 'Palace Hotel,' and 'Mann's Palace Hotel.' It appears there were signboards on the Palace Hotel with the words 'Palace Hotel' painted on some of them, and the NO. LIV. |