SETTLEMENT-continued.

place on the happening of which the gift over
was to take effect :-

Held, that, as the Education Act, 1902, had
abolished school boards and all representative
educational bodies elected or constituted for
educational purposes, and had transferred all
the powers which would have resided in an
elected body under the Education Acts to the
existing county authorities, and made them the
educational authorities within their areas, no
school board or other representative body under
the Education Acts had been formed for the
parish of Alcester, that the gift over had not
taken effect, and that the income was payable to
the managers of the schools. In re SMALLWOOD.
GOTHARD . CHAPMAN
Parker J. 272

7.

-

Tenant for Life-Power to appoint
Portions · Disentailing Deed Mortgage of
Settled Estates-Covenant for Quiet Enjoyment—
Appointment of Portions-Priority-Derogation
from Grant-Implied Release of Power.

Under a marriage settlement made in 1832
estates stood limited in 1854 to the use of A.
for life, remainder to the use of trustees for a
long term of years to secure 20,000l. as portions
for the younger children of the marriage, with
remainder to B. (A.'s eldest son) in tail male,
with remainders over; and the settlement con-
tained a power for A. by deed or will to appoint
the further sum of 10,000l. as portions for
younger children. In 1854 B., with A.'s con-
sent, executed a disentailing assurance by which
the estates were assured (subject to the uses and
estates created by the settlement anterior to B.'s
estate tail and to all powers to such precedent
estates annexed) to such uses as A. and B.
should by deed jointly appoint. Thereupon A.
and B., in exercise of their joint power, created
a mortgage over the estates; they also created a
further mortgage over the estates partly by the
exercise of their joint power and partly by a
grant of A.'s life estate. In each case, upon the
construction placed by the Court upon the
mortgages, the lands were assured by the
operative part subject to the power to appoint
the further sum of 10,000l. as portions. Each
mortgage contained a joint and several covenant
by the mortgagors for quiet enjoyment, "and that
free and clear and freely and clearly acquitted
and exonerated or released" or otherwise indem-
nified of, from, and against (inter alia) former
or other gifts, leases, jointures, portions, and all
other incumbrances whatsoever. A. died, having
by his will charged the estates with the further
sum of 10,000l. as portions for younger children.
Questions of priority having arisen as between
these further portions and the mortgages :-

Held, that the covenant for quiet enjoyment
did not enlarge the operation of the security
and did not amount to a release by A. of his
power to appoint further portions; and there-
fore that the further portions had priority over
the mortgages.

Scrope v. Offley, (1736) 1 Bro. P. C. 276.
Decision of Neville J., [1909] 2 Ch. 647,

affirmed.

NOTTIDGE . DERING. RABAN . DERING
C. A. 297

A country solicitor is entitled, under s. 37 of
the Solicitors Act, 1843, as "the party charge-
able," to an order of course for taxation of his
London agent's bill of costs without bringing
any sum of money into Court.

Smith v. Dimes, (1849) 4 Ex. 32, followed.
Ward v. Eyre, (1880) 15 Ch. D. 130, dis-
tinguished. In re WILDE (A SOLICITOR)

Neville J. 100

57 Geo. 3, c. xxix., s. 80-Michael Angelo Taylor's

Act
See STREETS.

1830.

35

11 Geo. 4 & 1 Will. 4, c. 47, s. 3—Debts Recovery

See MORTGAGE. 3.

588

223

11 Geo. 4 & 1 Will. 4, c. 65, s. 32-Infants Property
See PRACTICE. 3.

1837.

See STREAM.

-

See INDUSTRIAL AND PROVIDENT
SOCIETY.

56 & 57 Vict. c. 53, s. 35, sub-s. 1 (ii.) (a)—

Trustee

--

See PRACTICE. 3.

223

56 & 57 Vict. c. 63, s. 3-Married Women's

Property

-

See POWER OF APPOINTMENT.

57 & 58 Vict. c. 30-Finance

1894.

See REVENUE. 2.

1896.

-

157

-

564

458 59 & 60 Vict. c. 25, s. 8, sub-s. 1; s. 70, sub-ss. 1,
2, 3; s. 71, sub-s. 1; s. 74-Friendly
Societies
See FRIENDLY SOCIETY.

-

-

-

38 & 39 Vict. c. 60, s. 22—Friendly Societies 513 60 & 61 Vict. c. 65—Land Transfer –

1897.

See REVENUE. 2.

Sched. I.-

228

See VENDOR AND PURCHASER. 3.

1899.

257 62 & 63 Vict. c. 29, s. 2-Baths and Washhouses
See LOCAL GOVERNMENT.
347

INDEX,

account sent by them to the plaintiff contained
a charge of "84d. net." The shares were carried
over in this way every fortnight until January,
1906, the "net rate varying with the market
price of the shares. The plaintiff having failed
to pay the balance against him on the mid
October, 1905, carry over, they pressed for pay-
ment, and the plaintiff deposited with them as
security a certificate for 390 gas shares, and
106 signed a blank transfer of the same. The
fortnightly balances continued adverse to the
plaintiff and were not paid by him, and, after
repeated applications to the plaintiff for pay-
ment, the brokers, in January, 1906, closed the
account with a balance of 697. 10s. against him,
and sold the 390 shares for 1627. 10s.

Throughout the above transactions the plain-
130 tiff thought that the "net" rate charged for every
carry over represented only the jobber's con-
tango; but it included also, in fact, a charge by
the brokers for arranging the carry over which
they did not disclose to the plaintiff. It appeared
that the "net" rate was well known on the
Stock Exchange to indicate that with the

8 Edw. 7, c. 69, ss. 7, 45, 48, 69; Table A, art. 4 jobber's contango was included the broker's

See under PRINCIPAL AND SURETY.

SURRENDER — Appointor's life interest
Immediate possession - Death of ap
pointor-Hotchpot

See SETTLEMENT.

2.

See under SOLICITOR.

-

78

Kekewich J. having granted, at the instance
of the Attorney-General, a perpetual injunction
to restrain a public drainage board from dis-
charging sewage water into a river in contra- TAXATION-Solicitor's costs.
vention of s. 17 of the Public Health Act, 1875,
the defendants appealed; but upon the appeal
they did not contest that the injunction was
properly granted on the facts existing at the
trial. The defendants, however, obtained suc-
cessive adjournments of the appeal to enable TENANT FOR LIFE-Death of-Assignment by

them to complete certain sewage works upon
which they were engaged in order to comply
with the section. The works having been com-
pleted at an enormous cost, and there being a
conflict of evidence as to their sufficiency, the
Court referred the matter to an expert to report,
and he reported in favour of the defendants.

In these circumstances, it appearing that
there was no longer any breach of the section,
and the defendants undertaking to use their best
endeavours to prevent any future breach, the
Court discharged the injunction, the appellants
to pay the costs of the appeal.

The Attorney-General, complaining that a
public body is committing an offence against a
statute, is not entitled as a matter of right, on
proving his case, to an injunction.

Dicta of Farwell J. in Attorney-General v.
Wimbledon House Estate Co., [1904] 2 Ch. 34,
42, and of Vaughan Williams L.J. in Attorney-
General v. London and North Western Ry. Co.,
[1900] 1 K. B. 78, 87, approved.

Dictum of Kekewich J. overruled.

Appeal from a decision of Kekewich J.,
[1908] 2 Ch. 551. ATTORNEY-GENERAL

DRAINAGE BOARD

".

TENANT-Landlord and.

See under LANDLORD AND TENANT.

TRADE MARK-Registered Mark - Innocent
BIRMINGHAM, TAME, AND REA DISTRICT Infringer-Injunction-Whether Plaintiff also
C. A. 48 entitled to Compensation-Practice· Register
of Trade Marks-Notice-Trade Marks Registra-
STREETS-Compulsory Purchase - Widening tion Act, 1875 (38 & 39 Vict. a 91), 8. 3-Trade
Street-Notice to Treat Withdrawal Com-Marks Act, 1905 (5 Edw. 7, c. 15), ss. 7,39.
pensation-Local Government-Michael Angelo
Taylor's Act, 1817 (57 Geo. 3, c. xxix.), s. 80.

Where a landowner has been served with a
notice to treat under the compulsory powers of
Michael Angelo Taylor's Act, he must either
treat the notice as good or repudiate it as a
whole; he cannot accept it in part and repudiate
it in part.

Where a landowner has declined to accept or
has repudiated the validity of a notice to treat,
the local authority is entitled to withdraw it
altogether, and cannot be compelled to proceed
with that part of it which is acceptable to the
landowner.

In such a case no compensation by way of
damages will be given to the landowner.

Decision of Eve J., [1909] 2 Ch. 287, affirmed.
WILD v. WOOLWICH BOROUGH COUNCIL

C. A, 35
SUB-LETTING Lease - Forfeiture, Relief
against- Breach of covenant not to
sub-let without consent Effect of
negligence
777

-

See LANDLORD AND TENANT. 2.

When a registered trade mark is innocently
infringed the proprietor of the trade mark is
entitled to an injunction against the offender,
but not to an account of profits or an inquiry as
to damages unless the offender continues to
infringe after notice of the proprietor's right.

The principle of Edelsten v. Edelsten, (1863)
1 D. J. & S. 185, applied.

The register of trade marks does not operate
as notice to the public of the existence of a
registered mark. SLAZENGER & SONS
SPALDING & BROTHERS

2.

257

Registration Distinctive Mark
Perfection Adapted to distinguish
User Evidence Trade Marks Act, 1905
(5 Edw. 7, c. 15), s. 9, sub-s. 5.

The word " Perfection" applied to soap is
prima facie not a distinctive mark or “adapted
to distinguish the goods of the proprietor of the
mark from those of other persons so as to be
capable of registration as a trade mark under
s. 9, sub-s. 5, of the Trade Marks Act, 1905.

Evidence that the user of the word as a trade
mark has rendered it in fact distinctive of the

TRADE MARK-continued.

proprietor's goods to many persons in certain
large areas of the United Kingdom, but not to
many other persons in those areas, and to
scarcely any one outside those areas, is not
sufficient to make the mark "distinctive" or
"adapted to distinguish" within the section.
In re JOSEPH CROSFIELD & SONS, LIMITED
Swinfen Eady J. 118

3.

See next Case.

Registration-Special Application-
Distinctive Word-User-Laudatory Epithet-
Geographical Name-Misspelling of Descriptive
Word-Trade Marks Act, 1905 (5 Edw. 7, c. 15),
8. 9, sub-s. 5; ss. 11, 44.

A mere laudatory epithet cannot acquire by
user the quality of distinctiveness within s. 9,
sub-s. 5, of the Trade Marks Act, 1905, so as to
render it capable of registration as a trade mark.
A word not being an invented word ought
not to be put on the register if the spelling is
phonetic and resembles in sound a word which
in its proper spelling could not be put on the
register.

Per Fletcher Moulton L.J.: The Court has
jurisdiction under s. 9, sub-s. 5, to permit regis-
tration of words having a direct reference to
the character or quality of the goods, as well as
geographical terms, but it is for the applicant to
prove that words prima facie unsuitable for
registration have acquired distinctiveness, and
the extent to which the Court will require the
proof of this acquired distinctiveness to go will
depend upon the character of the word. In
determining whether a word prima facie de-
scriptive ought to be admitted to registration as
a trade mark the Court ought to consider whether
the registration will cause substantial difficulty
or confusion in view of the provision in s. 44
that no registration shall interfere with the use
by any person of any bona fide description of
the character or quality of his goods.

Upon a special application to register the
word" Perfection" as a trade mark for common
soap it was proved that for many years past the
applicants had advertised their soap under that
name, and had also used the name upon the
cakes of soap sold by them, but always in con-
junction with their own name, and that in many
parts of England the applicants' soap had
become known to a large extent as "Perfection "
soap:-

Held, that the word ought not to be admitted
to registration.

Decision of Swinfen Eady J., [1910] 1 Ch.
118, affirmed.

A special application to register the words
"California Syrup of Figs" for an aperient
medicine was referred by the Board of Trade to
the Court. The evidence established a prima
facie case of the words having become identified
by long user with the goods of the applicant :-
Held, that the application ought to be allowed
to proceed.

Decision of Warrington J., [1909] 2 Ch. 99,
reversed.

An application was made to expunge from
the register several trade marks consisting of the
word "Orlwoola," registered under the Patents,
VOL. I. 1910.

TRADE MARK-continued.
Designs, and Trade Marks Acts, 1883 and 1888,
for (amongst other things) woollen goods, with a
disclaimer in each case of the words "all wool."
These marks had been extensively used for many
years in connection with unshrinkable woollen
goods:-

Held, that "Orlwoola" was merely a mis-
spelling of "all wool"; that if the goods to
which the word was applied were entirely com-
posed of wool the word was descriptive, and, if
not, was deceptive; and that the trade marks
were not registrable either under the Act of 1905
or under the previous Acts and ought to be
expunged.

Decision of Eve J. reversed.
CROSFIELD & SONS, LIMITED.
FORNIA FIG SYRUP COMPANY.
BROCK & CO., LIMITED

In re JOSEPH
In re CALI-
In re H. N.
C. A. 130

TRADE NAME-Passing-off Action-Parties—

Practice-Injunction.

For many years the plaintiffs manufactured
and sold tyres for cycles and motor cycles under
the name of "Warwick," and by the year 1905
that name was distinctive and meant to the
trade and to the public tyres of their manu-
facture. In 1905 they transferred their business
with the exclusive right to manufacture and sell
Warwick tyres to the Dunlop Company for a term
of years, but did not assign the goodwill in their
trade name of "Warwick" to that company.
The plaintiffs never manufactured or sold tyres
for motor cars, nor did the Dunlop Company
sell such tyres under the name of Warwick."
The defendants manufactured and sold only
tyres for motor cars, and in 1908, the name of
their managing director being Warwick, com-
menced to sell their motor tyres under the name
of "Warwick motor tyres." In an action by the
plaintiffs to restrain the defendants from using
the name "Warwick" in connection with the
sale of the defendants' motor tyres on the ground
that such user was calculated to lead the public
to believe that the defendants' motor tyres were
tyres of the plaintiffs' manufacture:-

Held, on the evidence, that the plaintiffs
were entitled to an injunction.

Held, also, that the plaintiffs, although they
were not themselves manufacturing or selling
their Warwick tyres, were the proper parties to
sue, as they had not parted with the goodwill in
their trade name "Warwick," and that the
Dunlop Company were not necessary parties
to the action. WARWICK TYRE COMPANY,
LIMITED v. NEW MOTOR AND GENERAL
RUBBER COMPANY, LIMITED - Neville J. 248

TRANSFER Company Debenture stock-
holder's action-No condition protect-
ing transferees against equity-Reten-
tion of shares of stockholder and his
transferees
239

3 M