THE COURTS-TODAY.

Evening Star, Issue 8609, 1 September 1891, Page 2

THE COURTS-TODAY.

SUPREME COURT-IN CHAMBERS.

(IJefore His Honor Mr Justice Williams.) He Francis Fielding, deceased.—Summons to executor to file accounts (Mr Solomon, for Mr J. Moffet).—Summons dismissed ; costs, LI Is, and disbursements.

Neill v. M'Gavin and another.— Motion to confirm Registrar's report (Pr Fitohett). —Dismissed, withotjt oosts. Re William Daley, deceased.—Motion for commission to executor, with Registrar's report (Mr Hosking).—Confirmed. Prolate was granted re Janet Guffie (Hon. W. D. Stewart) and re Charles Waters (Mr Hoskiog). lie David Scott, deceased.—Motion for lettera of administration, with will annexed (Mr Pinoh).— Accordingly. Be Henry Thomas Ccllen, deceased.— Motion for letters of administration (Mr Siuclair). —Accordingly.

SUPREME COURT-IN BANCO. (Before His Honor Mr Juatice Williams.) .). M. COOTE AND CO. V. W. OKEGO AND CO, Special case stated pursuant to rule 241. Mr Hosking for plaintiff?, and Mr Haggttfc for defendants. His Honor gave judgment herein as follows : The question to be determined in the present case is a question of fact As was said by Lord Watson in Johnston v. Orr Kwing, 7 App. Oases, 219, the observations of judges upon ofcber and quite different facts cannot bear upon the case. The question is Blmply tbia: have the defendants used upon the tea told by them a mark the reasonableand probable result or ccnaequecoo of the use of which would be to lead incautious persons purchasing such tfa to believe that they wero purchasing the plaintiffs' tea (per Bagyallay L.J., in O.r Effing v. Johnston, 13 CD., at p. 451, per Lord Blackburn, Johnßton v. Orr Kw:np, 7 »pp. (.'ase3, at p. 229). It is not stated in the case that any person has been misled. It docs not appear from the eise how long the defendants' teas under their labels have been in the market, but, as they have acquired a trade name, the pvesumptlon is they have been in the maiketaconsiderabletime If, therefore,anyone had been mi.- led, force evidencoof the fact might have been expected to be forthcoming Fnrthor, it is abundantly clear that the mailn of the defendants were not adopted with any intention to mislead. The proof rf an intention to mislead is no doubt unnecessary, bat In all the cases relied on by Mr Hotkicg the existence of such an intention was a reasonable inference from the facts. Here the design, the lettering, the siz2, the whole get-up of the labels of the defendants so completely distinguish them from those of the plaintiff j that in uiy opinion there is no reasonab'e ground for supposing tbat the most incautious person who hid evtr sein the one coud mistake the other for it. It is tuggested, however, that too statements in the foarth and sixth paragraphs of the case show an Infringement by the defendants. These paragraphs state that the plaintiffs' tear, eold under th ir labels, are known as "The Exhibition Blend " and " Ike Eagle Blend," and that the defendants' teas, sold uaoer the labels complained of, are known as "The Exhibition Brand " and " Ihe Eagle Brand." These paragraphs show that different things have oomo to be koown by different names, and that persons are oipable of distinguishing the two labels, aid ctadutinguieh them. It does not appear from the caso that the teas sold under the pliintiffs' labels had acquired their distinctive name before the tea) sold under the defendants' labels C! mo into the market. It U not inconsistent with the statements in the case that the teas sold under the defendants' labels had become known aB "The Exhibition Brand" and " Tbo Eagle Brand " before the teas sold under the plaintiffs' labels had become known as "The Exhibition Blend" and "Ihe Eagle Blond." or indeed bifore the latter teas had come into the market at all. Looking at the complete dissimilarity of the labels, I should hesitate before drawing merely from the bald statements of paragraphs 4 and 6 the conclusion that there was a reasonable probability that purohaserß will be misled. The leading case of Johnston v. Orr Ewing (13 O.D. 434, 7 App. Gate?,| 219) shows the combination of facts necessary to support an action of this k hd. The facts jn the present case fall far short of those there proved. It is hot unimportant, moreover, to noto the observations of Lord Peibwne (j App. Gases, p. 227) in ccnncotiori with the cirpurjjstanoe that the injunotion granted in the Court below was varied by consent in the House cf Lords by omitting that part of It which retrained the defendants from employing any mark or words which would be oilculated to cause their yam to be known in Bombay as the Bh£ kathi yarn. The observations and variation show that the case was pot decided in the flouse of Lords on thp grpund that an injunction will go to restrain the use of a mark sjmply because it may be calculated to c»use goods sold under it to bs called by the name already acquired by the mark of another trader. Ido not think, however, it sufficiently appears that the marks of the defendants in the present case are calcu- j lated to do thip. The answer to the question proposed by the special case will be in the negative.

CJT¥ POLICE CQURT. (Before Mr W. Elder, Jf.P.) A Case Withdrawn. -—Thomas M' Olintock was oharged with, on or about the 14th ult, at South Dunedin, stealing a ferret, yajue Bsa, the property of John B. White.— jsr Callan: J appear for the proseputor, who instrnots me to say that the laying pf the. charge arose through an error, and he instructs me to say to your Worship that he now wishes to withdraw it. He has been in error, and does not wish to proceed farther. —The oase was withdrawn. Damaging a Wheelbarrow. George Oowie pleaded gnilty to a charge of, on the 13th August, at Caversham, Injuring a the property of Thomas thereby doing damage to the extent pf fs jsd.—After evidence Tjad fy> e P given by the proseputor, the accused was ordered to pay for the damage done, with costs (7s), in default forty-eight hours' imprisonment.