RECENT DECISIONS

Progress, Volume II, Issue 3, 2 January 1907, Page 104

RECENT DECISIONS

Land Transfer Act. Sujbmortgage, Iransliiß Or MORTGAGES SUBJECT TO SUBMORTGAGE. Section 94 of the Land Transfer Act 1885 provideb that "In case of a mortgage by a mortgagee of his estate or interests in a mortgage, the person in whose favour such charge is created shall be deemed the transferee of such estate and interest, and shall have all rights and powers as such. . ." Mr. Laing submortgaged several mortgages to him to Mr. Go vet t and then transferred the mortgages to Mr Pott subject to the submortgage. Mr. Pott presented his transfer for registration, but the District Land Registrar refused to register it, on the ground that the submortgage operated as a transfer of the mortgages. Held* by Cooper, J., that the Registrar was right, and that as long as the submortgage was in existence the original mortgagee was devested of all the powers vested in him under the original mortgages, that the transfer could not be registered, that it was a question whether the transferee had the right to lodge a caveat, but that he could to some extent protect his rights by notice to the submortgagee. In re Transfer Laing to Pott. IX Gaz. L.R. 137.

Contract. Month's Notice. Obligation to provide Workman with Work. — Mr. Deomald was employed as a rollerman at Rosser & Sons' tinplate works in South Wales, was paid by piece work, and by the firm's rules was not to quit or be discharged from the works without giving or receiving 28 days' notice. Owing to the state of the trade Rosser & Sons could not run their works at profit, and on July 20th they closed the wonks. On 3rd August they gave Mr. Deomald notice to terminate his employment on 31st August. He sued them for damages for breach of an implied agreement to provide him with work to the expiration of his notice. They contended that there was no obligation on them to find him work if there was none for him to do, and also that it was a custom of the trade that the employers should be at liberty to close their works without notice, if there were a lack of orders at remunerative prices. Held by the Court of Appeal that there was an implied undertaking by the employers to provide Mr Deomald with a reasonable amount of work as long as his employment lasted the measure of what was reasonable being the average amount of his earnings previous to the stoppage of the works, also that the custom was neither certain nor reasonable, and therefore not good Deomald v. Rossey and Sons 1906 2 K.D. 728.

Trade Union Inducing Workmen to break Contract with Masters. Principal and Agent. On 29th June, 1902, at the instigation of certain officials of the Denaby and Cadeby branches of the Yorkshire Miners' Association, the men in the Denaby and Cadeby collieries struck abruptly, thereby unlawfully breaking contracts which required 14 days' notice to terminate them. The Council of the Association however refused to maintain the strike by giving strike pay, and sent representatives to the collieries who told the men that they had acted illegally in breaking their contracts and must return to work. The men would have resumed work but for the fact that the new contracts presented to them for signature embraced new regulations as to timbering issued by the Home Secretary which the men considered ultra vires. The strike continued and the Association then treated it as a case of lock-out, and granted strike pay down to February 1903, when a member of the Association obtained an injunction against any further grant of strike pa> on the ground that the rules did not permit of this pajment under the circumstances The men in both collieries then submitted and the strike ended in March 1903. The Denaby and Cadeby Main Collieries Ltd then sued the association and others tor damages tor the loss sustained b> the collieries Held by the House ot Lords that the union was not liable, as those who had procured the strike had not been authonsed b} the rules or by the action of the union and that those who helped to maintain the strike by money and counsel were not liable to pay damages to the employers merely because losses had been thereby caused to the employers. Denaby and Cadebv Main Collieries Limited v Yorkshire Miners Association ISIOH A C 384

Partnlrship Dj:\th or P\rinlr Business carried on b\ Survivor Messis Bovine and

Grove carried on business in partnership. On the death of a partner, his executors were entitled to his capital with 5 per cent, interest. Mr. Grove died on May 9, 1901. Mr. Bourne continued to carry on business in the partnership name until 3rd December 1902, when he died insolvent. At Grove's death the partnership account with Berwich and Co. was overdrawn to £6476. After Grove's death Bourne continued the account m the firm's name for the purpose of the business. On 7th February 1902 he deposited title deeds of real estate forming part of the partnership property, and signed a memorandum of deposit to secure the overdraft which then stood at £5088. Between Grove's death and 7th February 1902 Bourne had paid into the bank to the credit of the account £10,073 aoid had drawn out £8688. After 7th February 1902 further sums were paid in and drawn out, and at Bourne's death the overdraft stood at £4463 odd. After Bourne's death the business was sold by order of the Court, and the property, the subject of the equitable mortgage was represented by £5300. The Bank and Grove's executors each claimed priority. Held by the Court of Appeal that a surviving partner, for the purpose of winding up the partnership business, may continue it and mortgage the partnership property, both real and personal, to secure a partnership debt, that the bankers were entitled, m the absence to the contrary, to assume that the surviving partner was continuing the account for the purpose of realisation, that therefore their mortgage was a valid security and took priority over the lien of the deceased partner's executors. In re Bourne. 1906, 2 Ch. 427. Landlord and Tenant. Room in Mill let with Machine. Contract to supply Power to work Machine. — Metcalfe & Co., occupiers of mills, let to Bentley Bros., for the purposes of their trade as mungo manufacturers, certain rooms at the mills with the rag machine therein, and agreed to supply power for working of the machine. The power was supplied by an engine, which had a defect in its governor, and in consequence ran at an excessive speed, and caused the drum of the rag machine to revolve at so high a rate of speed that it broke into pieces and killed Dews, one of Bentley & Co.'s workmen. Bentley & Co. had to pay his widow £202 as compensation and sued Metcalfe & Co. lor this amount as damages. Held by the Court of Appeal that the obligations of Metcalfe & Co did not arise as incidents of a demise of property, but arose out of a specific contract to sell and supply " power," and that there was an obligation upon them to see that the power supplied should be reasonably fit for the purpose for which it was to be supplied , that it was not so fit, and Bentley and Co. were therefore entitled to judgment. 1906 2 K.B. 548. Company. Entitled to commence Business Contracts. — Section 99 (3) of " The Companies Act 1903 " provides that any contract made by a company before the date at which it is entitled to commence business shall be provisional only and shall not be binding on the company until that date, and on that date it shall become binding. The Otto Electrical Manufacturing Co (1905) Ltd was registered. Some shares were subscribed for in its memorandum of association, it issued a prospectus inviting the public to subscribe for its shares, but none of its capital was paid up and none of its shares were allotted. The company never had a registered office, was never entitled to commence business, and went into voluntary winding-up. In the liquidation Mr. Jenkins claimed that the company was indebted to him for sums paid for furnishing offices which he took for the company at the request of the directors. Held by Buckley, J., that the section applied to all contracts of a company, whether preliminary or final or in the course of carrying on its business, that the word " provisional " means that the contract is to be read as if it contained a provision that it shall not be binding on the company unless and until the company becomes entitled to commence business. Mr. Jenkins claim was therefore disallowed. In re " Otto " Electrical Manufacturing Company (1905) Limited 1906 2Ch 390 Trade Mark Word having Reference to -.-Character or Quality of the Goods "Century " The Printing Machinery Company made an application to register the word " Century " as a trade mark va. respect of machinery The ComptrollerGeneral refused the application on the ground that the word conveyed the idea that the article to which it was applied included all improvements that had been discovered up to date and therefore had reference to the character or quality of the goods. Held by Farwell, J , on appeal to the Court that the word " Century" was a commendatory phrase and was therefore rightly refused registration. Re The Printing Machinery Company's application 23 Reports of Patent Cases 38 Passing off. Trade Description — Burberry's have for many years manufactured waterproof

garments, which are known and sold in great quantities as " Burberry " and " Burberry Slip-on." Raper & Pulleyn, a firm of makers of waterproof articles, published the following advertisement in the Yorkshire papers —

BURBERRY'S SLIP-ON COAIS. Raper & Pulleyn have now added this Manufacture to their Mackintosh Department. In appearance the coats are identical with Burberry's, and the cloth is equal to theirs in every way, being trebleproofed. The Firm's reputation for Mackintoshes is itself a guarantee to purchasers, lhe price is Two guineas." A farmer, reading the advertisement, and wishing to buy a coat of Burberry's, wrote to Raper and Pulleyn for " one of your Burberry Slip-on Coats at 42s " and received a garment manufactured by Raper & Pulleyn Burberry's brought an action against Raper & Pulleyn for an ni] unction to restrain passing off. Raper & Pulleyn contended that the terms " Burberry" and " Slip-on " did not indicate manufacture by Burberry's' but indicated a coat made by any manufacturer of a particular shape and of a particular class of cloth. Held by Warrmgton, J., that the advertisement was calculated to deceive and actually did deceive, and an injunction was granted restraining Raper & Pulleyn from advertising or selling as " Burberry " or " Slipon " goods not of Burberry's manufacture Bitrbcny'b v. Rapir 6- Pulleyn. 23, Reports of Patent Ccises 170. Highway Dedication User. An intention to dedicate land as a highway will not be presumed from mere usei, if that user is explained by circumstances negativing such an intention A mortgagor cannot, without the consent of the mortgagee, dedicate as a highway part of the land the subject of the mortgage. Resident of the Shire uf Navacan v Leirston 3, Commonwealth L.R. 840