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mistake. The court excluded the evidence, but
offered to allow the plaintiff to amend his complaint,
setting up the mistake. The plaintiff refused, and
was nonsuited. Afterward, and after the lapse of a
year from the accruing of the claim, he commenced
another suit. Held, not maintainable, although the
defendant's counsel accepted the costs in the first
suit, and gave the plaintiff's counsel time to make a
case or exceptions.
Buel v.
People, p. 492. The defendant killed a
woman by strangling her while attempting to com-
mit a rape upon her. Held, murder in the first de-
gree, within a statute making the killing of any
person, by one while engaged in the commission of
a felony, murder in the first degree.

surance.

ufactory. "Thorley's Food for Cattle" was a condiment made, according to a particular recipe not invented by Thorley, first by Thorley, and afterward by his executors, at Thorley's works, but it had not become an arti cle of commerce like "Liebig's extract of meat." Subsequently a company, called "J. W. Thorley's Cattle Food Company," was started and made a condiment very nearly identical with that made at Thorley's works, and sold it in packets closely resembling those used by Thorley and his executors. Held, that the name assumed by the company, and the manner in which they sold their goods, showed an intention, and was in fact calculated to mislead the public into believing that the company were the successors in Thorley's business, and that their goods were made at Thorley's works; and that the company must be restrained by injunction. Decision of Malins, V. C., in the first action affirmed; in the second reversed.

THESE two appeals from Malins, V. C., were heard

together.

In the case of J. W. Thorley's Cattle Food Company v. Massam, the plaintiffs had moved on the 30th June, 1877, for an injunction to restrain the defendants, the executors of Joseph Thorley, from advertising, or representing in their advertisements or circulars, that they were alone possessed of the secret for compounding the condiment known as "Thorley's Food for Cattle," and from representing that the cattle food manufactured and sold by the plaintiffs was spurious, or not genuine, or not compounded in accordance with the true recipe, of the same ingredients, and in the same proportions, and in the same manner as the condiment

Flynn v. Equitable Life Insurance Co., p. 568. The defendant's medical examiner, at the request of an agent of the defendant who had acted to some extent as general agent, and occupied defendant's principal office, filled up an application for life inThe applicant made correct answers, but the medical examiner incorrectly and untruly stated some of them in the application. Held, that in the absence of evidence on the part of the defendant to show the true authority of the agent, a finding that he was authorized to depute the medical examiner to fill up the application, was justified, and defend-known as "Thorley's Food for Cattle," manufactured ant was estopped from taking advantage of the mistakes. See same case, 67 N. Y. 500; 23 Am. Rep. 134.

Hurd v. Kelly, p. 588.- A bond was executed by several for the several payment of a certain sum to a certain savings bank, on a specified day, "or six months after a demand therefor." The bank was embarrassed at the time, and the real purpose of the bond, which was known to the obligors, was exhibition to the bank department as an asset, and to enable the bank to pass examination and continue in business. The expressed consideration was that the bank should continue in business after the execution of the bond. The bank did continue in business for some time, but not until the specified day of payment, and then failed, and was put in the hands of a receiver. Held, (1) that the transaction was not against public policy; (2) that it was not ultra vires as to the depositors represented by the receiver; (3) that it was upon a valid consideration; (4) that an action was maintainable upon six months' notice and before the specified day of payment.

DECEPTIVE USE OF ONE'S OWN NAME IN
TRADE.

ENGLISH COURT OF APPEAL, APRIL 27, 1880.

THORLEY'S CATTLE FOOD Co. v. MASSAM. (42 L. T.
Rep. [N. S.] 851.)

To advertise a caution to the public against a person's
goods offered for sale, on the ground that they are not
what they pretend to be, and to state that he is foisting
a bad article upon the public, is a libel, which, if not
justified, will be restrained by injunction. A person is
not entitled to use another's name in describing his
goods in trade, though his own name is the same or he
has assumed the same name, if by so doing he in fact
represents that his own goods are from the other's man-

and sold by Joseph Thorley in his life-time.

The advertisement complained of was this: Caution, Thorley's Food for Cattle. The public, and in particular farmers, graziers, dealers, and others purchasing this world-famed food, are warned that any food for cattle purporting to be "Thorley's Food for Cattle," and not signed with the name Joseph Thorley, is not the manufacture of this establishment, carrying on business as Joseph Thorley, the proprietors of which are alone possessed of the secret for compounding that famous condiment, and carrying on business at Pembroke Wharf, Caledonian road.

The defendants, the executors, had also issued circulars, warning the public against the course pursued by the company "in seeking to foist upon the public an article which they pretend is the same as that manufactured by the late Joseph Thorley."

Malins, V. C., though he was of opinion that the court had power to restrain these publications, declined to do so upon an interlocutory application. See tho report, L. Rep., 6 Ch. Div. 582.

The executors of Joseph Thorley had commenced an action at about the same time as the company's action was commenced against them, and on the 14th June, 1877, moved for an injunction "to restrain the defendant company, their servants, workmen, agents and travellers, and representatives respectively, from selling, exporting or shipping, or causing or procuring, or allowing to bo sold, shipped or exported, and from in any manner representing, or causing or procuring to be represented, any goods manufactured or sold by tho defendant company as the manufacture or goods of the late Joseph Thorley, or of the plaintiffs, his trustees and successors in business; and also to restrain the company from using the plaintiffs' trade-mark."

Malins, V. C., refused the motion, and the plaintiffs gave notice to the company, and discontinued their action. See the report, 36 L. T. Rep. (N. S.) 848; L. Rep., 6 Ch. Div. 574.

Subsequently the executors brought another action for substantially the same relief. This was the action of Massam v. J. W. Thorley's Cattle Food Company, at the head of the present report.

The two actions came on for trial together, and occupied several days in Feb. and Nov. 1879.

Malins, V. C., came to the conclusion, upon the evidence, that the two articles sold by the executors and the company respectively were substantially the same, and in J. W. Thorley's Cattle Food Company v. Massam he restrained the executors from issuing advertisements injuring the company in their trade by representing in effect that the cattle food sold by the company was spurious. He dismissed the action of Massam v. J. W. Thorley's Cattle Food Company, being of opinion that there was not sufficient evidence adduced by the plaintiffs on whom the burden of proof lay, to show that the company represented that they were the successors, or were carrying on the business of Joseph Thorley. See the report, 41 L. T. Rep. (N. S.) 542. The executors appealed from both decisions. The facts proved in evidence appear in part in the previous reports. They were briefly these:

Joseph Thorley, the original maker of the cattle food, died in 1876, having by his will directed that his business should be carried on by his executors, with the assistance of his son Joseph Thorley.

J. W. Thorley, whose name was given to the plaintiff company, was a brother of the late Joseph Thorley, and both brothers were equally acquainted with the secret for compounding the cattle food, which they had obtained from a person named Fawcett. J. W. Thorley had at one time been in the employ of his brother, and being acquainted with the business, he was, on the death of Joseph Thorley, induced to join in getting up a company, which was registered, with a capital of 2001. divided into 4,000 shares of 1s. each, J. W. Thorley having signed the memorandum of association as the holder of one share.

In the action of J. W. Thorley's Cattle Food Company v. Massam, witnesses were examined on both sides upon the question whether the article sold by the defendants was the same as that manufactured by the plaintiffs. Among the witnesses for the plaintiffs were several well-known analytical chemists. The effect of their evidence was that, although the analysis they had made differed in some unimportant items from that of the defendants, the variation was so slight that the two articles, for all purposes of food, were essentially the same. The differences might be traced to the variation in the quality of the ingredients used. On the other side, the evidence went to show that there was an ascertainable difference between the two compounds, and that as the defendants' mixture contained more spice and more sugar, it was likely to be more palatable to the cattle than the plaintiffs' mixture; but it was admitted that if the two mixtures were placed before a cow in the same manger she would, in all probability, be unable to distinguish the difference, and would eat them both. In the second action, by the executors against the company, witnesses were examined upon the question whether or not the travellers sent round the country by the company had or had not represented to the purchasers, or led them to believe, that J. W. Thorley & Co. were the successors to the business formerly carried on by Joseph Thorley, deceased, and that they were, in fact, carrying on that business.

The company had issued an almanac in which appeared a report and analysis by Dr. Hassall of "Thorley's Food for Cattle," which had been made at the request of Joseph Thorley, and on the article made by him; and a list of the prizes obtained for cattle through the use of "Thorley's Food for Cattle;" though in fact the condiment had been that supplied by Joseph Thorley.

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ing the cattle food which is being sold by his executors, whereas the only surviving Mr. Thorley (Mr. J. W. Thorley) has no connection whatever with the persons trading under the name of the late Joseph Thorley."

The packets in which the article sold by the company was made up were of the same shape and size, and wrapped in the same colored paper as those used by Joseph Thorley and by his executors, and bore the same directions for use. But it was stated that the company sent out their packets in boxes of a different shape and size from those used by Thorley and his

executors.

Glasse, Q. C., and Nalder, for the appellants, the executors.

Napier Higgins, Q. C., and Townsend. for the respondents, the company

In the first case the respondents' counsel were stopped by the court. In the second, after hearing both sides, the court did not call for a reply.

For the cases relied upon in the arguments, see the report below. 21 Alb. L. J. 171.

JAMES, L. J. In the first case we came to a decision really, practically and substantially, without hearing the respondents, the moment we had the two documents read to us, one of them throwing a light upon the other. We thought that the executors, the defendants in that action, had said more than they ought to have said. They might have given warning by saying that the company were not carrying on their business, and were different from them, and they might have said that they were not successors of Joseph Thorley; but they went on to make allegations which were really allegations imputing to them that they were foisting a bad article upon the public, and so on, stating in substance that it was a fictitious article, and an article calculated to do mischief. We thought Mr. Glasse had not proved his justification of that libel. There was a libel if not justified; and having our attention called to the evidence, we thought the executors had failed to prove that there was any foundation in point of fact for the assertion that the company were foisting an article as something they were not entitled to represent it, that is, independently of what I may call the trade-name or trade-mark. Now in the other case, which is probably the more important one, I am of opinion that the executors, the plaintiffs in the action, ought to have succeeded, and ought therefore to succeed before us. In the first place I will dispose of this point which has been raised, that there is any thing in the nature of an estoppel, or any thing in the nature of a bar to the plaintiffs' right to relief on any ground of this kind by reason of their having discontinued the former action of Massam v. J. W. Thorley's Cattle Food Company. The plaintiffs there failed to get an interlocutory injunction, and having failed to do that they discontinued the action and paid the costs. That is not a res judicata which can be pleaded or dealt with as res judicata. All that amounts to is, that the vice-chancellor did not then think a case had been made out for the interference of the court upon interlocutory application. No doubt the vice-chancellor gave reasons in his judgment, which reasons he has also repeated in the present case, basing his decision principally upon a case of James v. James, 26 L. T. Rep. (N. S.) 568; L. Rep., 13 Eq. 421. Now I am of opinion that that application for an injunction ought to have succeeded, assuming the facts to have been as we are told they were, substantially the same as the facts now before us, because I am clearly of opinion that the defendant company never had a right to use the term "Thorley's Food for Cattle." The right to use that name depends, or may be supposed to depend, upon what was supposed to have been decided in Burgess v. Burgess, 3 De G. M. & G. 896, and afterward

decided in James v. James.

Now, Burgess v. Burgess has really been very much misunderstood, if it has been understood to say that anybody can always use his own name as a description of an article, whatever may be the consequence of it, or whatever may be the motive for doing it, or whatever may be the result of it. No doubt Knight Bruce, L. J., made a very epigrammatic judgment, which probably has therefore caused it to be recollected more than that of Turner, L. J., who followed him. Knight Bruce, L. J., in his judgment, said: "All the queen's subjects have a right, if they will, to manufacture and sell pickles and sauces, and not the less that their fathers have done so before them. All the queen's subjects have a right to sell these articles in their own names, and not the less so that they bear the same name as their fathers; nor is there any thing else that this defendant has done in question before us." Then he goes on: "He carries on business under his own name, and sells his essence of anchovies as 'Burgess's Essence of Auchovies,' which, in truth, it is. If any circumstance of fraud now material had accompanied, and were continuing to accompany the case, it would stand very differently, but the whole case lies in what I have stated." But the way in which Turner, L. J., puts it is this, which I take to be much more accurate: "I concur in the opinion that this motion should be refused with costs. No man can have any right to represent his goods as the goods of another person, but in applications of this kind it must be made out that the defendant is selling his own goods as the goods of another. Where a person is selling goods under a particular name, and another person not having that name is using it, it may be presumed that he so uses it to represent the goods so sold by himself as the goods of the person whose name he uses; but where the defendant sells goods under his own name, and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiff. It is a question of evidence in each case whether there is false representation or not." That I take to be the accurate description of the law which was really adopted by the House of Lords, which now, of course, has settled the law paramount to all the cases before it in that case of Wotherspoon v. Currie, L. Rep., 5 H. of L. 508, in which the House of Lords differed from the view that I originally took in that case. I thought myself bound, in Wotherspoon V. Currie, to apply what I thought was the rule of law as laid down in Burgess v. Burgess, and some other cases which seemed to have followed it, that a man had a right to use a name if he was not telling that which was untrue on the face of it. But the House of Lords came to the conclusion that there were things which were marks of fraud in that case. The words used were, "Currie & Co., starch and corn flour manufacturers, Glenfield." Now the name of the starch of the plaintiff was "Glenfield Starch," and the defendant was actually manufacturing starch at Glenfield for the purpose of enabling him to say that he was manufacturing it at Glenfield. There could be no doubt about that, and the House of Lords said the mere fact that he was really carrying on the manufacture at Glenfield, and was not therefore telling a lie in that respect, did not exempt him from the consequences of this, that the whole thing was intended and calculated to produce on the mind of the purchasers the belief that his article was the article of the plaintiffs. Lord Westbury sums it up in a few words: "I take it to be clear from the evidence that long antecedent to the operations of the respondent the word 'Glenfield' had acquired a secondary signification or meaning in connection with a particular manufacture. In short it had become the trade denomination of the starch made by the appellant. It was wholly taken out of its ordinary meaning, and in connection with starch had acquired

that peculiar secondary signification to which I have referred. The word 'Glenfield,' therefore, as a denomination of starch, had become the property of the appellant. It was his right and title in connection with the starch. Now the question is, has that property been invaded by the respondent? and I take the whole proceedings of the respondent from beginning to end to have been nothing in the world more than a contrivance for getting the word 'Glenfield' associated with his manufacture. If that be true, what the respondent has done has been done malo animo with a view of possessing himself of a denomination which was the property of the appellant." I should like to say a few words on that case of James v. James, which the vice-chancellor in this case considered himself bound by. There may be a distinction, which I am going to point out, between that case and this, but if they be practically the same, which I am bound to say I think they are, for myself, I cannot concur in the decision in James v. James, nor in the reasoning which led to it, nor in the distinctions which were attempted to be taken. Now in James v. James a Lieut. James had invented a thing called a horse-blister -"Lieut. James's horse-blister." It was manufactured by himself, and he conveyed it to persons upon trust for some members of his family. Another person of the name of James, a member of the family, then made it after the death of Lieut. James, and sold it under the same name. Now Lord Romilly, M. R., was of opinion that although during the life-time of Lieut. James that could not be done, it could be done after his death. I am utterly unable to perceive any ground for that distinction. If Lieut. James had the trade-mark, or what was equivalent to a trade-mark, during his life, if Lieut. James had the right to prevent anybody of the name of James or otherwise from selling "Lieut. James's horse-blister," I cannot conceive how that right was not transmitted to his legal personal representatives, or why his legal personal representatives had not the same right as Lieut. James had to enforce that which was his right of property, to use Lord Westbury's expression, in connection with the manufacture of a horse-blister. It is possible that in that case the Master of the Rolls may have thought that "Lieut. James's horse-blister" being a mere recipe, anybody who had got the recipe might go and get it made up by any chemist or druggist, and therefore that "Lieut. James's horse-blister" was merely an indication that it was made according to Lieut. James's recipe, which I am bound to say I am unable to concur in; still there might be that distinction that there the recipe was the whole thing. Now I cannot apply that to a case like the present, where two people could make the article in question from the same recipe, and yet make articles as dissimilar as possible in point of quality. Of course where we are dealing with an article of food, a condiment, the merit and the value of the article depends on the great care which the one man might or might not take in selecting the very best articles he was compounding together, and in the manipulation of the articles, and the preservation of them during the course of manufacture. But I do not think that there really is any substantial difference between the two cases. What, as it appears to me, was in the mind of the Master of Rolls at the time, and what led to the fallacy, was this: there is no doubt that if a man takes out a patent for a thing, and the thing is known as his patent, for instance, say "Flavell's Patent Kitchener," and the patent expires, if the patent was known as the plaintiff's patent, then anybody else might make the thing as "Flavell's Patent Kitchener," because Flavell's kitchener then does not mean made by Flavell, but made according to Flavell's patent. What have we got in this case? In the first place the thing here was not invented by any Thorley at all, and therefore "Thorley's food" cannot signify a food made

66

according to Thorley's invention. The invention is said to be by somebody else, whose recipe is said to have been purchased by the original Thorley, and "Thorley's Food for Cattle" here, according to my view, does not mean food consisting of particular ingredients or made up according to a particular recipe, because no purchaser would care about that; but "Thorley's Food for Cattle" meant that food which for many years was manufactured at works belonging to Joseph Thorley, and afterward was manufactured by his executors carrying on his business at the same works. The words "Thorley's Food for Cattle" would indicate, according to my view of the case, to a purchaser, this: You have always had a very good article called "Thorley's Food for Cattle;" any article bearing that name is to you a guarantee that it comes from the same place from which that has come with which you have hitherto been well satisfied and content. That in truth is the meaning and object and result of a trade-mark. That is what a trade-mark is; it does not signify what it is- whether it is a name, or a symbol, or a fancy name, or any thing else. It indicates this, a warranty that the article to which it is attached has come from the particular manufacturer of the goods with which buyers have been hitherto pleased. Thorley's Food for Cattle" never became an article of commerce as distinguished from the particular manufactory from which it had proceeded. I referred in the course of the argument to a case as an illustration which was the converse of this, the case of Liebig's Extract of Meat Company, where the company wanted to prevent some defendants from selling Liebig's extract of meat, or selling any thing of that name, the company having got Liebig to assist them and lend them his name. The answer to that was: Liebig's extract of meat has ceased to be a thing made by Liebig, because Liebig has published to the world the mode by which it is made, and it has been made and manufactured generally, and has got into the Pharmacopoeia, into books of cookery, into a dozen places, where a dozen people can make it, and has now become as much known as if it were called "Extract of Meat" alone, or any thing else, and Liebig's extract has ceased to have any connection with Liebig as the maker of it for the purpose of the manufacturer, and was merely the description of it as the article known to the medical world and other persons who had occasion to use it. That was the converse of this case. There is nothing like that in this case of "Thorley's Food for Cattle." Then we have to consider what was the animus. It appears to me that that would be almost sufficient to dispose of it; but there is one thing that struck me in this all through. We have had nothing like a satisfactory explanation of how J. W. Thorley's company came into existence; how they came to form themselves into a company, unless it was that they thought that Thorley was making a very good thing; that they thought that Thorley's food was a very profitable thing; that it had got a very great reputation, and that some of them would like to steal the reputation which Thorley's article had acquired. In order to do that, they seem to have somehow or other got into communication with a gentleman who was a relation of the late Joseph Thorley, and a connection of his executors, and who for some years had been in the service of Joseph Thorley, and during those years, according to his own account, which I take to be true, had acquired a knowledge of the recipe, and had acquired the exact knowledge of the manufacture, but who for several years previous to the existence of this company had never had any thing to do with the manufacture of food for cattle, but was probably gaining his livelihood in some other way; but having the same name of Thorley, which was the distinguishing mark of food for cattle, he either tendered himself for sale, or was found for purchase by some person, in order that his name might

be got into a joint-stock company limited, for the sake of selling these goods. Why was that name got in there except for the purpose of inducing the world to believe that it was the same concern, or that it was the Thorley, that it was the same Thorley whose name was the principal characteristic of the name of the article? The name of the company, I cannot help observing, was J. W. Thorley & Co., Limited,and that J. W. Thorley & Co., Limited, is, to my mind, to begin with, a fiction, an intentional fiction. The meaning of J. W. Thorley & Co., Limited, that which it would convey to any person's mind, is that there was a partnership of J. W. Thorley & Co., a real partnership, which had been carrying on business in the manufacture of this food for cattle, and that for some reason or other, such as we have seen constantly in our experience in this court, the partnership had been minded to convert itself into a limited company for the more convenient transaction of its business. But here the J. W. Thorley was not a partner. J. W. Thorley was employed as an agent, as the manager; and J. W. Thorley's only connection with the company, quâ company, is that he had a one-shilling share in it, the company itself having a capital of 2001., or something of that kind. To my mind that really would be exactly the same thing as if somebody were to establish a brewery at Burton, finding some one of the name of Bass, or somebody who would take the name of Bass-because there is no law to prevent a man assuming any name he likes -and then calling themselves J. Bass & Co., Limited, or W. Bass & Co., Limited, and advertising Bass & Co.'s pale ale. I really can see no distinction between Bass & Co.'s pale ale, as advertised by such a company got up in that way, and "Thorley's Food for Cattle," advertised by the company which has procured a person of the name of Thorley to be connected with their company. That of itself, to my mind, is a very strong thing to begin with. And then next we have to look at the advertisements and circulars, and the almanac. First of all, as to the packages, could any thing be more calculated to deceive? Those are the things by which the company really influenced customers. It is said by the defendants that they are very careful, and they have always been very careful, to avoid any thing which could be considered as indications of any intention on their part to pass their goods off as the others'. If they had been so very much minded in that way, why did they not make their packages different the same shape and the same size it might be, because it might be convenient; but why did they not put them in a scarlet, blue, or orange and blue wrapper, or something that would have immediately shown not only to a person minutely comparing the things together, but to any person who was in the habit of having the things in an orange packet, that it was a blue packet? Why did they not do that, if they were minded, as they say they were, not only to take care that their things should not be mistaken, but that the world should know that they were rival manufacturers? Then there is the almanac which they have circulated, and in which they put things which were paid for by Thorley-Dr. Hassall's description and report, and things of that kind, and other passages · - for the purpose of implying that they were the persons for whom Dr. Hassall's report had been obtained, and that Dr. Hassall's report was a report on their manufacture. Then there is this again. they put, "It is the best cattle food in the world. Upward of 95,000l. has been awarded to horses and cattle fed on Thorley's food for cattle. It has gained the diplomas from the Pennsylvania State Agricultural Society and of the Royal Agricultural Society," and so on, all of which was true of the article which was manufactured by Joseph Thorley, but was not true of the article which was manufactured by them; that is to say, their article had not received any of these things. They may say

their article is the same or as good, but in my opinion the representation is not, "We are making an article as good or the same as Thorley's, which gained the prize," but "This is the thing, we are the persons who are selling the thing, the produce of the manufactory, which has obtained those prizes." There are other things which I need not stop to dilate upon. On the parol evidence I am satisfied, and I agree very much with what Mr. Townsend said with regard to the witness Stillweli, who was a traveller for the company, and who went to people and said, "I come from Thorley's; Joseph Thorley is dead; the persons I represent are carrying on the business." I have not the slightest doubt that, being well warned that he was not to say any thing which could be construed into a positive assertion that the company were carrying on the same business, at the same premises, or were the successors in business, he took care to say that they were carrying on the business of manufacturing food for cattle. It might be said, it was true that they were carrying on the food for cattle business; but the intention and the effect of that, in my mind, was to cause a belief to be entertained by the persons to whom it was addressed, who all say they did form that belief from it, that it was the same concern; that the company were carrying on the same manufactory from which the things used to be distributed to the world. I am therefore of opinion that, in this case, what the defendant company have done has been calculated to deceive, and I am bound to say in my judgment I have no doubt was from the first intended to deceive, the persons purchasing their article, into the belief that they were purchasing the article which Joseph Thorley had formerly manufactured at the works which had obtained the great reputation which Thorley's manufacture appears to have obtained from the purchasers of those condiments. I am of opinion that the order should have been granted very much in the general words in which it was asked.

BAGGALLAY, L. J. The first of the two appeals which was opened to us was against the judgment in the action in which Thorley's Cattle Food Company were the plaintiffs. The vice-chancellor declared that the defendants were not entitled to advertise or represent that they or the proprietors of the establishment carrying on business as Joseph Thorley were alone possessed of the secret for compounding the condiment known as "Thorley's Food for Cattle," and proceeded to grant an injunction restraining the defendants from advertising or representing, or inserting or suggesting in their advertisements or circulars, that they were alone possessed of the secret, and from representing or suggesting, or doing any thing calculated to represent or suggest, that the cattle food manufactured and sold by the plaintiffs was spurious, or not genuine, or not compounded in accordance with the true recipe. I need not read the remainder of it. I agree with the lord justice in thinking that that appeal should be dismissed. The company having been founded in March, 1877, these advertisements were inserted in the newspapers, and the circulars issued in the latter part of the month of June in the same year. The advertisement was in fact in the form of a caution: "The public, and in particular all farmers, graziers, dealers and others, purchasing this world-famed food, are warned that any food for cattle purporting to be Thorley's Food for Cattle, and not signed with the name of Joseph Thorley,' is not the manufacture of the establishment carrying on the business as Joseph Thorley." Thus far no objection could be raised to it; but it goes on, "The proprietors of which are alone possessed of the secret of compounding that famous condiment, and carry on business at Pembroke wharf, Caledonian road. "In the circular which was the second subject of complaint, they said that they had sent

round circulars of warning to the effect that the company were seeking to foist upon the public an article which they pretended was the same as that manufactured by the late Joseph Thorley. I do not think that the defendants in that action were justified in issuing either the one or the other. In my opinion they had no right to state that they were alone possessed of the secret, nor had a right to say that the plaintiffs in that action were seeking to foist upon the public an article which they pretended was the same as that manufactured by the late Joseph Thorley. It is unnecessary to go through the evidence in the case, but I feel bound to say that, in my opinion, the burden was on the defendants in such a case to show that there was some difference, and I think something more than a mere nominal difference, some substantial difference between the article made by the plaintiffs and the article made by the defeudants. In my opinion, having very carefully gone through the several analyses in each case, there does not appear to be any substantial difference. There may be a little more of the spice in the one than in the other, and so far as there might be a little excess of spice the article may be perhaps a little more useful, but there is no substantial difference between the constitution of the contents of the two packets. But passing from the appeal in that case to the appeal in the action in which the executors of Joseph Thorley are the plaintiffs, I am of opinion that the question for determination by us is this: Have the company, in offering for sale the article manufactured by them, made representations which were calculated to induce a reasonable belief on the part of those to whom the offers were made that the article was manufactured by the successors of Joseph Thorley? In my opinion that question must be answered in the affirmative, and, being so answered, it appears to me that an injunction ought to issue substantially in the form in which it is mentioned in the writ. Now, the circumstances under which this manufacture was commenced by the company in the year 1877 cannot be disregarded. Down to that period the manufacture of the article known as "Thorley's Food for Cattle" had been carried on for twenty years, first of all by Joseph Thorley, and after his death by his executors. He had acquired the recipe for the manufacture of this article from a person, I think, of the name of Fawcett twenty years before the time when the company was formed. No doubt, after a time, when Fawcett had fully instructed him in the manufacture of the article, his brother, J. W. Thorley, was taken by him as clerk or as some other servant, into his employment, and whilst in that employment he acquired a knowledge of the way of compounding this condiment. But he had left his service for ten years before Joseph died in 1876, and then, his business having been confined to Joseph Thorley and his executors, within nine or ten months after Joseph Thorley's death we have this company formed under circumstances which are very suggestive of an endeavor to get the benefit of the sale, or the good repute which the manufacture and sale of this article had produced to Joseph Thorley. We have a company formed and called "J. W. Thorley's Cattle Food Company, Limited." The only excuse for having the name "J. W. Thorley" introduced into the description of the company is this, that he took a share to the extent of one shilling, the shares of this company being one shilling only. He took one share of one shilling in the company, and was then employed by the company as the manager of their business. I say this company was started under circumstances of a very suspicious character. We have had a good deal of argument as to the right to use the name "Thorley's Food for Cattle," and whether any person at the present time could use that name except the executors of Joseph Thorley. I think the passage which James, L. J., has referred to

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