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Court of Appeal in Chancery. May 31.
FARINA v. SILVERWELL.
Trade mark — Injunction - Copyright. The plaintiff filed a bill alleging an exclusive right to use a particular label and wrapper on bottles containing his cologne water, and that the defendant, a printer, was in the habit of making and vending spurious labels and wrappers in large quantities. It appeared that the defendant was in the habit of making and selling labels and wrappers in imitation of the plaintiff's, but there was some evidence tending to show that they were or might be used by the purchasers in trading with the genuine cologne water, much of which was sold without wrappers of this sort.
Held, by the Lord Chancellor, reversing the decision of Wood, V. C., that the plaintiff was not entitled to an injunction.
Where one designates his wares by a particular trade mark, he may restrain all others from selling wares not manufactured by him, with a similar mark, but not from attaching the mark to the genuine wares, which are lawfully in their possession, without the mark.
There is no copyright in a label used as a trade mark.
June 7 and 10. GRAINGER v. SLINGSBY.
Will - Construction. A testatrix, after giving some pecuniary legacies, proceeded :• To my dear brother Edward I leave everything I may be possessed of at my decease, for his life, and should he marry and have children of his own, to those children after; but, should he die a bachelor, at his death I leave the whole of my fortune, now standing in the funds, to E. S., &c."
At the date of her will, and also at her death, the testatrix was possessed of consuls and other government annuities, and also of a barge sum in bank stock.
Held, that the words, "the whole of my fortune,” were restricted by the expression “now standing in the funds,” and that this description did not include the bank stock, which must go to the next of kin.
Prerogative Court. June 9.
FARMER v. BROCK. Probate of will — Proof by one witness Corroborated by circumstances.
The will offered for probate was proved by the two subscribing witnesses; an exception was taken to one of them, and it was proved that he had been tampered with, and could not be relied on. Held, that the will might be pronounced for, on the evidence of the unimpeached witness, there being circumstances to corroborate her evidence.
V. C. Wood's Court. June 28 and July 11.
Doody v. Higgins. Will - Construction - Bequest of personalty to persons “or their heirs
forever.” A testator, by his will, bequeathed the residue of his personal property, “to be divided equally, share and share alike, between the following persons, or their heirs, forever.”
It was heretofore held by Turner, V. C., (9 Hare, App. xxxii.) that the word " heirs” meant next of kin.
Held, that by next of kin, was meant next of kin according to the Statute of Distributions.
V. C. Stuart's Court. June 2.
AIREY v. Hall. Devise of residue — Voluntary settlement afterwards without transfer.
Testator, by his will, gave all the residue of his real and per. sonal estate in trust for his three daughters. By a voluntary settlement made a few months later, and just before his death, he assigned to trustees a large amount of personal property, consisting of cash, standing in his name at his bankers, and consols, upon somewhat different trusts for his daughters and their children. The stocks and cash remained in the testator's name till his death. Held, that as both classes of trusts were voluntary, those of the settlement, which first took effect, must prevail.
June 27. Re Hall. Trustee — Solicitor — Misappropriation of funds. A trustee, who was a solicitor, received a portion of the fund in a check, which he deposited with his bankers. He afterwards gave a certificate in the name of his firm, that the sum had been paid to the trustees and invested by them, but this had not been done at the date of the petition, several months after. Upon petition he was struck from the roll of solicitors.
Court of Session, (Scotland.)
Fenton v. LIVINGSTONE. Legitimacy - Domicil— Marriage with deceased wife's sister. A Scotchman, domiciled in England, was there married to the sister of his deceased wife, and had a son born there in 1809; the husband and wife continued to reside in England until their respective deaths. The son claimed a Scotch inheritance. Held, that his status must be governed by the law of England, and it being shown that in England his legitimacy could not be impeached after the death of his parents, it was held that he must be considered legitimate in Scotland.
V. C. Wood's Court. April 7 and May 7.
Re WRIGHT's Trusts.
Domicil — Legitimacy governed by domicil Construction of will
“Children." A., an Englishman, being much involved in debt, went to France in 1823, and lived there under a feigned name, and there cohabited with B., a French woman. Early in 1824, he was married to her by an English clergyman, but this marriage was admitted to be void, because contracted by him under his assumed name. In December, of that year, he had a daughter born to him by B.; A. continued to live in France until his death, in 1854, but there was no sufficient evidence of his having become domiciled in France before 1832, if at all. He was married to B. at the British embassy, and according to British forms, in 1841, and according to French forms in 1846, and on the latter occasion, an act of legitimization of the daughter was drawn up, but was signed by A. alone; the general rule of French law requiring it to be signed by both parents.
The Vice Chancellor held, that A. was domiciled in England at the time of his daughter's birth, and that this fact must regulate the status of the child. The child, therefore, was English, and even admitting that A. was domiciled in France at the time of his subsequent marriages, and that the act of legitimization was suffi. cient by French law, still these facts could not render the child legitimate who at her birth was an English child, the daughter of an English subject, and illegitimate.
A testator bequeathed stock to A. for life, and then to “his children” living at his death. A. died, leaving two legitimate children, and one born under the circumstances above stated. Held, that the latter could not take any portion of the bequests.
February 14 and March 11. JOHNSTONE v. Hall. Lessor and sub-lessee - Reversioner — Remedy in equity by reversioner
Special damage. A. demised land to B. for 999 years, and B. covenanted not to carry on trade, &c., &c., and that the premises should be used solely for private dwelling-houses. A. by will devised all his real estate to C. for life, with remainder to D. for life, and then to her eldest son in tail. C. was unmarried. B., the lessee, underlet to E., who underlet to F., who converted the premises into a boardingschool for young ladies. (The covenant and alleged breach were very similar to those in Wickenden v. Webster, ante, p. 166.)
D. and E. as entitled to the first inheritance in reversion, filed a bill to restrain F. from such a use of the premises; the bill made C. the tenant for life, a party defendant, and alleged his privity with F. in the improper use of the premises.
Held, the bill must be dismissed with costs, because the injury to the property was of so minute a character that this court would not interfere by the extraordinary remedy of injunction in favor of a reversioner out of possession, unless special damage to his inheritance were shown.
Exchequer. May 27 and June 10.
RACKARON v. MARRIOTT. Statute of Limitations -- Acknowledgment or new promise. The plaintiff called the attention of the defendant to his debt, on the ground that the Statute of Limitations would soon attach to it. The defendant replied in writing :—“I beg to say that I do not wish to avail myself of the Statute of Limitations to refuse payment of the debt alluded to in your note; but I have not the means of settling it, and must crave a continuance of your indulgence. My situation, as a salaried clerk, does not afford me the means of laying up a shilling; but in course of time, if I continue in my present employment, I may reap the benefit of my services in an augmentation of my salary, to enable me to propose some satisfactory arrangement with you."
Held, that this letter contained no sufficient promise or acknowledgment to bar the statute.
May 29 and June 10. Brown v. BACHELOR.
Guarantee whether for past or future credits. “In consideration of credit given to A. and B., I hereby agree to guarantee payment of all bills drawn by A. and accepted by B.; also, I agree to guarantee all balance that may be due from A. to B. This guarantee to include all bills now running, as well as the balance of account at this day.”
Held, per Pollock, C. B., and Martin, B., to apply to future as well as then existing bills and balances.
Bramwell, B., thought it confined to the latter.
May 22 and June 10. HULL v. BOLLAND.
Patent - Practice Notice of objections. A statute, (15 & 16 Vict. c. 83, s. 41,) provides that the de. fendant in an action for infringement of a patent, shall deliver with his pleas particulars of his objections, and at the trial, no evidence
shall be given of any objection impeaching the validity of the letters patent, which shall not be contained in such particulars; that the place or places in which the invention is alleged to have been used, shall be stated in the particulars, and that a judge in Chambers may allow an amendment of the particulars on such terms as to him may seem fit. The defendant filed particulars alleging a previous general user of the invention in all corn mills, but not specifying any place.
Held, the defendant might give evidence at the trial of a user in a mill, in a certain place, the plaintiff not having applied to a judge to have the particulars amended.
May 30. Stokes v. Cox. Insurance — Description of premises — Subsequent alteration of premises.
The defendants insured for the plaintiff a range of buildings “comprising offices, warehouses, curriers' shops, drying rooms, having a stock of oil not exceeding 100 gallons, and tallow not exceeding 500 cwt., deposited therein, part of the lower story of such building being used as a stable, coach-house and boiling. house. No steam engine employed on the premises, the steam from said boiler being used for heating water and warming the shops.” At the end was a note :
“ N. B. — The process of melting tallow by steam in said boilerhouse, and the use of two pipe stoves, are hereby allowed; but it is warranted that no oil be boiled, nor any process of japanning leather be carried on therein, or in any building adjoining thereto." On the policy was indorsed a clause that no alteration made after the insurance was effected should affect the policy, except the risk was thereby increased.
After the policy was made, the plaintiff, without notice to the defendants, erected a steam engine on the premises, and worked it by steam generated in the existing boiler. A fire occurred. The jury found that the risk had not been increased.
Held, that the description of the premises “no steam engine employed,” &c., amounted to a warranty, or showed that the fact was deemed material, and that the alteration, therefore, suspended the risk, and as the fire occurred during the continuance of the alteration, the plaintiff could not recover. The case chiefly relied on was Gillem v. Thornton, 3 Ell. & Bl. 868. Bramwell, B., dissented.
Queen's Bench. June 3 and 11.
Job v. Langton. Shipping — General and particular average. A vessel, loaded with coal, was stranded at Newfoundland; the cargo was discharged and transhipped, and the vessel was afterwards got off, and taken to Liverpool for repairs.