..Legal.. Contributed BY H. F. Von Haast, M.A., LL.B.

Progress, Volume I, Issue II, 1 September 1906, Page 317

..Legal.. Contributed BY H. F. Yon Haast, M.A., LL.B.

RECENT DECISIONS. Industrial Conciliation and Arbitration Act, 1905. Payment by Master of less than Minimum Wages Fixed by Award. Workman's Right to Recover Balance. — Mr. Bailhe employed Mr. Reese, an infant, as a workman under a contract at a lower wage than the minimum wage for that trade fixed by the award of the Arbitration Court, and paid him at that lower wage. After some time, Mr. Reese, finding that he was receiving less than such minimum wage, sued his employer for arrears of wages, viz. :—: — the difference between the minimum wage fixed by the Arbitration Court, and the amount that he had actually received. Held by the Court of Appeal that he could recover such arrears, and that the illegal contract to pay the lower wage was no defence to the action. The opinion was expressed by members of the Court that the Statute of Limitations would be no bar to such an action, and that arrears of wages for more than six years could be recovered. — Court of Appeal, 28th July, 1906. The Workers' Compensation for Accidents Act, 1900. Serious and Wilful Misconduct. Disobedience to Orders. Section 5 of The Workers' Compensation for Accident Act, 1900, exempts the employer from liability under the Act in respect of an injury directly attributable to the serious and wilful misconduct of the worker. — Marshall, Sons & Co., Limited, had in their factory a lift leading from one floor to another, and notices posted on the lift and elsewhere allowing no one to use it except in charge of a load. Johnson, one of the Company's workmen, was found in the lift without a load, crushed between the floor of the lift and the top of the doorway by which the lift was reached from the floor above. His widow applied for compensation, which the Company refused on the ground that his death was due to his serious and wilful misconduct. Held by the House of Lords that the burden of proving the misconduct is on the employers, and that, as no injury to any one could be anticipated to result from the breach of the rule, the misconduct was not serious and, therefore, that the widow was entitled to compensation. " Serious misconduct does not mean that the actual consequences of the workman's act in the particular case are serious, but that the act is likely to produce serious consequences to some person or thing, as if a workman whilst -working in a mine on certain seams of coal struck a match and lit his pipe, or if he walked into a gunpowder factory with nailed boots, refusing to use the list slippers provided for him." — Johnson v. Marshall, Sons & Co., Ltd. 22 Times L.R., 565. The Workers' Compensation for Accident Act, 1900. Claim for Compensation. — A claim for compensation under section 12 of the above act need not be in writing. Lowe v. Myers & Sons. 22 Times L.R. 614. Master and Servant. Servant's Authority. Negligence. — The Fiat Motors, Limited, having repaired a motor car for a customer in Yorkshire, sent it back in charge of one of their chauffeurs named Watts ; he invited a friend, a fellow •chauffeur, Biscombe, not in the Company's employment, to accompany him. Watts hearing a noise at the back of the car, entrusted the driving to Biscombe, while he went to see the cause of the noise. While Biscombe was driving the car negligently, it collided with and damaged Harris's van. The Fiat Motors, Limited, was held not liable for the damage to the van, on the ground that a " servant employed for a particular purpose has no authority to delegate the performance of his duty unless there is a necessity for so doing," and that there was no necessity for keeping the car going while Watts examined the machinery, and therefore, no necessity for his entrusting the driving to Biscombe. Harris v. Fiat Motors, Limited. 22 Times L.R. 556. Patent for Haskell Golf Balls held INVALID ON THE GRQUND OF ANTICIPATION — The Haskell Golf Ball C 0.., Ltd., 1898, obtained in England a patent for an improved golf ball, the improvements consisting m forming the balls with a core of about 126 feet, of rubber thread wound under high tension into a spherical form or of analogous material, with or without a central core-section of relatively inelastic material and a closely fitting shell of gutta percha or other material,hard and inelastic relatively to the core. The pressure in the interior is about one ton and

a half. When this ball was first brought out it was not a success for, according to Collins M. R., " the experts who played 'in Scotland chiefly looked on its high degrees of elasticity simply as expedients resorted to by incompetent people to put them somewhere near the standard attained by other people without the aid of such expedients. For these reasons, these sturdy champions of golf, pursuing their game in the solitude of Scotland, were not prepared to take on these appliances for substituting a bad game with a more elastic ball for a good game with the existing one. They were, therefore, reluctant and altogether opposed to the introduction of those expedients and devices for assisting incompetent persons to play golf more to their own satisfaction. Those causes seem to have operated from 1898 to 1902, when the Haskell ball became a success. By that time the whole condition of things had been changed. Scotland had annexed England, to say nothing of America, and the proportion of incompetent players to skilled persons was extraordinarily greater. Therefore, the result was that the incompetent majority were too much for the minority of experts and overbore their opposition, and the ball became a success." Such being the case, Messrs. Richard Hutchison and John Main, desirous of participating in the profits which the Haskell Company vvas reaping manufactured and put upon the market a similar ball with a cover of " Sprmgvale material " which they called the " Sprmgvale Eagle Hawk & Kite." The Haskell Company, indignant at the action of the owners of these birds of prey, brought an action for infringement of their patent. Numerous defences were set up, but Mr. Justice Buckley held that the Haskell specification was good, that the commercial success of the Haskell balls went far to show subject matter for a patent, utility and novelty, and that if the patent were valid, the Sprmgvale balls would be infringements. But the evidence of two witnesses — Captain Stewart and Mr. George Ferine, proved fatal to the Haskell patent. Captain Stewart, in spite of his seventy years, and a heckling in cross examination covering some 500 questions, proved clearly that about 1870 he made a ball which was to all intents and purposes a Haskell ball ; he first tried for his core short threads of india-rubber taken from an elastic-sided boot, then he bought hanks of indiarubber thread and wound them with as much pressure as he could put on them consistently with winding them and not breaking them, and then he covered this core with a gutta percha cover. Subsequently he made and patented a composition ball, although he thought his rubber ball was better , the latter, however, like the Haskell ball at first, did not " take on " although it would travel further ; it was " too bouncy, hopped about too much and had no click," (the defects for which golfers first condemned the Haskell ball) and golfers would have nothing to do with it. Captain Stewart played openly with his rubber cored ball from 1871 up to 1879 and in the course of his narrative, mentioned a long shot he made in 1878 with his rubber cored ball, and a subsequent reference to the record book of the Musselburgh Club proved the correctness of his memory and went far to convince the Court of the accuracy of his statements. Mr. Ferme made his balls by cutting india-rubber football bladders into thin strips, winding each strip round the core and fastening it with a piece of string and including the whole in a gutta percha covering. They were very lively but cracked, so he sold the invention to his brother for £5 Held by Buckley, J., that the balls made by Captain Stewart and Mr. Fernie had anticipated the Haskell ball, that Captain Stewarts action had proceeded beyond mere incomplete experimental user, that the commercial failure of the balls made by Fernie arose merely from imperfection of manufacture, and that the Haskell patent was therefore invalid. The Haskell Company appealed. Held by the Court of Appeal that the patent had been anticipated by the balls made by Captain Stewart and Mr. Fernie, (by Collins M.R. and Cozens-Hardy L.J.) that it was invalid also on the ground of want of subject matter, as toy balls (for all practical purposes wound in the same way as what is called the core of the Haskell ball and covered with a suitable covering (usually leather) were well known and sold in thousands. The Haskell Golf Ball Co., Ltd. v. Hutchison. 23 Reports of Patent Cases, 125.

Passing off Goods as those of Another Firm. No Actual Deception Proved — Joseph Rodgers & Sons, Ltd., and their predecessors in business, have manufactured cutlery for over 200 years, and their cutlery has a world wide reputation as " Rodgers." Messrs. F. M. Hearnshaw and W. F. Hearnshaw, who carried on business as edged tool manufacturers in Sheffield bought in 1887 a business of joiners' tool makers from Henry Brown Son & Co., and ;n; n 1889 a business of edged tool manufacturers of Rodgers Bios., which had never carried on a cutlery business.

In 1902 Messrs. Hearnshaw commenced a cutlerybusiness and selected for if the- style of Rodgers Bros. They marked their goods with a figure of John Bull, the words " John Bull " and " Rodgers Bros.", — except small pen knives, on which there is no room for the " John Bull " figure and words. From the outset of the business, they used a label describing themselves as " Rodgers Bros., Sheffield, manufacturers of celebrated cutlery, tools, electro-plate." Joseph Rodgers & Sons, Ltd., brought an action against the Messrs. Hearnshaw to restrain them from passing off their goods as those of the Company. No case of actual deception was proved. Held by Buckley, J., that the words " Rodgers Cutlery " had acquired the secondary meaning of inferring cutlery made by the well-known Joseph Rodgers & Sons, Ltd., that although the cutlery trade, who know the different marks, would not be deceived by a knife marked " Rodgers Bros. " with the John Bull on it, yet that the word " Rodgers " as used by Messrs. Hearnshaw was calculated and intended to deceive, and used by them for the purpose of enabling dishonest retailers to pass off the goods marked with the word " Rodgers " as those of Joseph Rodgers & Sons, Ltd. An injunction and enquiry as to damages were, therefore, granted. Joseph Rodgers, &> Sons Ltd. v. F. M. Hearnshaw dv W. F. Hearnshaw. 23 Reports of Patent Cases 349. Patent Granted in New South Wales. Action for Infringement brought in Victoria. Jurisdiction. — Mr. Potter brought an action in Victoria against The Broken Hill Proprietary Co., Ltd., a Victorian Co. carrying on mining operations in N.S.W., alleging that he had obtained in N.S.W. a patent for a new process for separating metals from sulphide ores, that subsequently the Company's manager had applied for, and in spite of his opposition, obtained a patent for what was alleged to be also a new process for separating the metals in sulphide ores from the crude ores, but which was only a colourable imitation of Potters'. Mr. Potter alleged that the Company had infringed in N.S.W. his patent, and claimed an injunction and damages. The Company alleged that Potter's patent was invalid on the ground of want of novelty and want of utility. Held by the High Court of Australia that the grant of Letters Patent is an exercise of the Sovereign power of the State and that, therefore, the validity of the grant is not examinable in the Courts of another State, and the operation of this rule is not excluded by the circumstance that patent rights cannot be enforced against a person who can prove that the invention was not novel. Held that the Courts of Victoria had no jurisdiction over the plaintiff's cause of action. Potter v. The Broken Hill Proprietary Co., Ltd. 3 The Commonwealth L.R. 479. Auctioneers. Authority of Partner. Bill of Exchange. — Mr. Smithers and his partner carried on business as auctioneers. The partner without his knowledge, or authority, accepted in the name of the firm, a bill of exchange drawn on the firm m respect of a joint adventure outside the partnership business. Mr. Wheatley, the holder of the bill, sued Mr. Smithers without success, for it was held that auctioneers are not " traders " within the meaning of the law affecting bills of exchange, so as to make one partner liable upon a bill of exchange accepted in the firm's name by his partner without the former's knowledge or authority. Wheatley v. Smithers, 22 Time", L.R. 591. Architects Plans, Right of Cltent. — " The Exhibition authorities have been advised by their solicitor that Mr. J. C. Maddison has no legal claim to photographs of the front elevation of his plans of the main building of the Exhibition. The advice is based on a decision of the Court of Appeal in England on the 4th March, 1909. Gibbon v. Pease." In view of the above question having arisen in connection with the Exhibition, the following note of Gibbon and Pease may have some interest for the readers of Progress. Mr. Gibbon employed Mr. Pease, an architect, to design and carry out the conversion into fiats of the upper parts of certain houses owned by Mr. Gibbon m London, the architect to receive for his services a fee of 5% on the contract price. The plans and specifications were prepared and the work completed. Mr. Gibbon paid Mr. Pease his fees and asked for the plans and specifications, with which, however, Mr Pease refused to part, on the ground that he was entitled by a custom of the profession to retain them. In an action for their recovery, it was argued that the contract made by an architect was not a contract to sell a plan, but for work and labour, and evidence was tendered of a custom m the profession by which plans and specifications were the property of the architect. Held by the Court of Appeal, that if such a custom existed, it was unreasonable, that the evidence was inadmissible, and that the plans and specifications belonged to the building owner.