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THE

mistake. The court excluded the evidence, but ufactory. "Thorley's Food for Cattle" was a condioffered to allow the plaintiff to amend his complaint,

ment made, according to a particular recipe not invented

by Thorley, first by Thorley, and afterward by his execusetting up the mistake. The plaintiff refused, and

tors, at Thorley's works, but it had not become an artiwas nonsuited. Afterward, and after the lapse of a cle of commerce like ' Liebig's extract of meat. year from the accruing of the claim, he commenced

Subsequently a company, called “J. W. Thorley's Cattle

Food Company,” was started and made a condiment another suit. Held, not maintainable, although the very nearly identical with that made at Thorley's works, defendant's counsel accepted the costs in the first and sold it in packets closely resembling those used by

Thorley and his executors. Held, that tho name assuit, and gave the plaintiff's counsel time to make a

sumed by the company, and tho manner in which they case or exceptions.

sold their goods, showed an intention, and was in fact Buel v. People, p. 492. — The defendant killed a calculated to mislead the public into believing that the

company were the successors in Thorley's business, and woman by strangling her while attempting to com

that their goods were made at Thorley's works; and mit a rape upon her. Held, murder in the first de

that the company must be restrained by injunction. gree, within a statute making the killing of any

Decision of Malins, V. C., in the first action affirmed;

in the second reversed. person, by one while engaged in the commission of a felony, murder in the first degree.

THESE two appeals from Malins, V. C., were heard Flynn v. Equitable Life Insurance Co., p. 568.

together. The defendant's medical examiner, at the request of

In the case of J. W. Thorley's Cattle Food Company

v. Massam, the plaintiffs had moved on the 30th June, an agent of the defendant who had acted to some

1877, for an injunction to restrain'the defendants, the extent as general agent, and occupied defendant's executors of Joseph Thorley, from advertising, or repprincipal office, filled up an application for life in- resenting in their advertisements or circulars, that surance. The applicant made correct answers, but they were alone possessed of the secret for compoundthe medical examiner incorrectly and untruly stated

ing the condiment known as “Thorley's Food for Catsome of them in the application.

tle,” and from representing that the cattle food manuHeld, that in the

factured and sold by the plaintiffs was spurious, or not absence of evidence on the part of the defendant to genuino, or not compounded in accordance with the show the true authority of the agent, a finding that true recipe, of the same ingredients, and in the same he was authorized to depute the medical examiner proportions, and in the same manner as the condiment to fill up the application, was justified, and defend-kuown as "Thorley's Food for Cattle,” manufactured

and sold by Joseph Thorley in his life-time. ant was estopped from taking advantage of the

The advertisement complained of was this: mistakes. See same case, 67 N. Y. 500; 23 Am.

Caution, – Thorley's Food for Cattle. The public, Rep. 134.

and in particular farmers, graziers, dealers, and others Ilurd v. Kelly, p. 588. — A bond was executed by purchasing this world-famed food, are warned that any

food for cattle purporting to be “Thorley's Food for several for the several payment of a certain sum to Cattle,” and not signed with the name Joseph Thorley, a certain savings bank, on a specified day, “or six is not the manufacture of this establishment, carrying months after a demand therefor.” The bank was

on business as Joseph Thorley, the proprietors of

which are alone possessed of the secret for compoundembarrassed at the time, and the real purpose of the ing that famous condiment, and carrying on business bond, which was known to the obligors, was exhib

at Pembroke Wharf, Caledonian road. ition to the bank department as an asset, and to ena

The defendants, the executors, had also issued circuble the bank to pass examination and continue in

lars, warning the public against the course pursued by

the company “in seeking to foist upon the public an business. The expressed consideration was that the

article which they pretend is the same as that manubank should continue in business after the execu

factured by the late Joseph Thorley." tion of the bond. The bank did continue in busi- Malins, V. C., though he was of opinion that the ness for some time, but not until the specified day court had power to restrain these publications, declined of payment, and then failed, and was put in the

to do so upon an interlocutory application. See tho hands of a receiver. Held, (i) that the transaction report, L. Rep., 6 Ch. Div. 582.

The executors of Joseph Thorley had commenced an was not against public policy; (2) that it was not action at about the same time as the company's action ultra vires as to the depositors represented by the was commenced against them, and on tho 14th June, receiver; (3) that it was upon a valid consideration; 1877, moved for an injunction “to restrain the defend(4) that an action was maintainable upon six months'

ant company, their servants, workmen, agents and notice and before the specified day of payment.

travellers, and representatives respectively, from selling, exporting or shipping, or causing or procuring, or

allowing to bo sold, shipped or exported, and from in DECEPTIVE USE OF ONE'S OWN NAME IN any manner representing, or causing or procuring to TRADE.

be represented, any goods manufactured or sold by tho

defendant company as the manufacture or goods of ENGLISH COURT OF APPEAL, APRIL 27, 1880.

the late Joseph Thorley, or of the plaintiffs, his trus

tees and successors in business; and also to restrain THORLEY'S CATTLE Food Co, v. MASSAM. (42 L. T.

the company from using the plaintiffs' trade-mark.”

Malins, V. C., refused the motion, and the plaintiffs Rep. [N. S.] 851.)

gave notice to the company, and discontinued their To advertise a caution to the public against person's action. See the report, 36 L T. Rep. (N. S.) 848; L.

goods offered for sale, on the ground that they are not Rep., 6 Ch. Div. 574. what they pretend to be, and to state that he is foisting Subsequently the executors brought another action a bad article upon the public, is a libel, which, if not justined, will be restrained by injunction. A person is

for substantially the same relief. This was the action

of Massam v. J. W. Thorley's Cattle Food Company, at not entitled to use another's name in describing his goods in trade, though his own name is the same or he

the head of the present report. has assumed the same name, if by so doing he in fact

The two actions came on for trial together, and occurepresents that his own goods are from the other's man- pied several days in Feb. and Nov. 1879.

Malins, V. C., came to the conclusion, upon the evi- ing the cattle food which is being sold by his executors, dence, that the two articles sold by the executors and whereas the only surviving Mr. Thorley (Mr. J. W. the company respectively were substantially the same, Thorley) has no connection whatever with the persons and in J. W. Thorley's Cattle Food Company v. Massam trading under the name of the late Joseph Thorley." he restrained the executors from issuing advertise- The packets in which the article sold by the comments injuring the company in their trade by repre- pany was made up were of the same shape and size, senting in effect that the cattle food sold by the com- and wrapped in the same colored paper as those used pany was spurious. He dismissed the action of Massam by Joseph Thorley and by his executors, and bore the V. J. W. Thorley's Cattle Food Company, being of same directions for use. But it was stated that the opinion that there was not sufficient evidence adduced

company sent out their packets in boxes of a different by the plaintiffs on whom the burden of proof lay, to shape and size from those used by Thorley and his show that the company represented that they were the executors. successors, or were carrying on the business of Joseph

Glasse, Q. C., and Nalder, for the appellants, the Thorley. See the report, 41 L. T. Rep. (N. S.) 542.

executors. The executors appealed from both decisions. The facts proved evidence appear in part in the

Napier Higgins, Q. C., and Townsend. for the reprevious reports. They were briefly these :

spondents, the company Joseph Thorley, the original maker of the cattle food,

In the first case the respondents' counsel were stopdied in 1876, having by his will directed that his busi

ped by the court. In the second, after hearing both ness should be carried on by his executors, with the

sides, the court did not call for a reply. assistance of his son Joseph Thorley.

For the cases relied upon in the arguments, see the J. W. Thorley, whose name was given to the plaint

report below. 21 Alb. L. J. 171. iff company, was a brother of the late Joseph Thorley, and both brothers were equally acquainted with the JAMES, L. J. In the first case we came to a decision secret for compounding the cattle food, which they really, practically and substantially, without hearing had obtained from a person named Fawcett. J. W. the respondents, the moment we had the two docuThorley had at one time been in the employ of his ments read to us, one of them throwing a light upon brother, and being acquainted with the business, he the other. We thought that the executors, the dewas, on the death of Joseph Thorley, induced to join fendants in that action, had said more than they ought in getting up a company, which was registered, with a to have said. They might have given warning by saycapital of 2001. divided into 4,000 shares of 1s. each, J. ing that the company were not carrying on their busiW. Thorley having signed the memorandum of associa- ness, and were different from them, and they might tion as the holder of one share.

have said that they were not successors of Joseph In the action of J. W. Thorley's Cattle Food Con- | Thorley; but they went on to make allegations which pamy v. Massam, witnesses were examined on both were really allegations imputing to them that they sides upon the question whether the article sold by the were foisting a bad article upon the public, aud so on, defendants was the same as that manufactured by the stating in substance that it was a fictitious article, aud plaintiffs. Among the witnesses for the plaintiffs were an article calculated to do mischief. We thought Mr. several well-known analytical chemists. The effect of Glasse had not proved his justification of that libel. their evidence was that, although the analysis they | There was a libel if not justified; and having our athad made differed in some unimportant items from tention called to the evidence, we thought the executhat of the defendants, the variation was so slight that tors had failed to prove that there was any foundation the two articles, for all purposes of food, were essen- in point of fact for the assertion that the company were tially the same. The differences might be traced to foisting an article as something they were not entitled the variation in the quality of the ingredients used. to represent it, that is, independently of what I may On the other side, the evidence went to show that call the trade-name or trade-mark. Now in the other there was an ascertainable difference between the two case, which is probably the more important one, I ain compounds, and that as the defendants' mixture con- of opinion that the executors, the plaintiffs in the tained more spice aud more sugar, it was likely to be action, ought to have succeeded, and ought therefore more palatable to the cattle than the plaintiffs' mixture; to succeed before us. In the first place I will dispose but it was admitted that if the two mixtures were of this point which has been raised, that there is any placed before a cow the same manger she would, in thing in the nature of an estoppel, or any thing in the all probability, be unable to distinguish the difference, nature of a bar to the plaintiffs' right to relief on any and would eat them both. In the second action, by ground of this kind by reason of their baving disconthe executors against the company, witnesses were ex- tinued the former action of Massam v. J. W. Thorley's amined upon the question whether or not the travel- Cattle Food Company. The plaintiff's there failed to lers sent round the country by the company had or get an interlocutory injunction, and having failed to had not represented to the purchasers, or led them to do that they discontinued the action and paid the costs. believe, that J. W. Thorley & Co. were the successors That is not a res judicata which can be pleaded or dealt to the business formerly carried on by Joseph Thorley, with as res judicata. All that amounts to is, that the deceased, and that they were, in fact, carrying on that vice-chancellor did not then think a case had been business.

made out for the interference of the court upon interThe company bad issued an almanac in which ap- locutory application. No doubt the vice-chancellor peared a report and analysis by Dr. Hassall of “Thor- gave reasous in his judgment, which reasons he has ley's Food for Cattle," which had been made at the also repeated in the present case, basing his decision request of Joseph Thorley, and on the article made by principally upon a case of James v. James, 26 L. T. him; and a list of the prizes obtained for cattle Rep. (N. S.) 508; L. Rep., 13 Eq. 421. Now I am of through the use of “Thorley's Food for Cattle;" opinion that that application for an injunction ought though in fact the condiment had been that supplied to have succeeded, assuming the facts to have been as by Joseph Thorley.

we are told they were, substantially the same as the There was also in the almanac the following state- facts now before us, because I am clearly of opinion ment: “The executors have continued to manufacture that the defendant company never had a right to use some food and sell it under the name of 'Joseph Thor- the term “Thorley's Food for Cattle.” The right to ley,' which they have registered as their trade-mark. use that wanne depends, or may be supposed to depend, The public may by this ruse be induced to imagine upon what was supposed to have been decided in Burthat Mr. Joseph Thorley is still living and manufactur- gess v. Burgess, 3 De G. M. & G. S96, and afterwarı decided in James v. James. Now, Burgess v. Burgess that peculiar secondary signification to which I havo has really been very much misunderstood, if it has referred. The word 'Glenfield,' therefore, as a debeen understood to say that anybody can always use nomination of starch, had become the property of the his own name as a description of an article, whatever appellant. It was his right and title in connection may be the consequence of it, or whatever may be the with the starch. Now the question is, has that propmotive for doing it, or whatever may be the result of erty been invaded by the respondent? and I take the it. No doubt Knight Bruce, L. J., made a very epi- whole proceedings of the respondent from beginning grammatic judgment, which probably has therefore to end to have been nothing in the world more than a caused it to be recollected more than that of Turner, contrivance for getting the word “Glenfield' associated L. J., who followed him. Knight Bruce, L. J., in his with his manufacture. If that be true, what the rejudgment, said: “All the queen's subjects have a spondent has done has been done malo animo with a right, if they will, to manufacture and sell pickles and view of possessing himself of a denomination which sauces, and not the less that their fathers have done was the property of the appellant." I should like to so before them. All the queen's subjects have a right say a few words on that case of James v. James, which to sell these articles in their own names, and not the the vice-chancellor in this case considered himself less so that they bear the same name as their fathers; bound by. There may be a distinction, which I am nor is there any thing else that this defendant has going to point out, between that case and this, but if done in question before us." Then he goes on: "Ile they be practically the same, which I am bound to say carries on business under his own name, and sells his I think they are, for myself, I cannot concur in the essence of anchovies as ‘Burgess's Essence of An- decision in James v. James, nor in the reasoning which chovies,' which, in truth, it is. If any circumstance led to it, nor in the distinctions which were attempted of fraud now material had accompanied, and were to be taken. Now in James v. James a Lieut. James continuing to accompany the case, it would stand very had invented a thing called a horse-blister —“Lieut. differently, but the whole case lies in what I have James's horse-blister.” It was manufactured by himstated.” But the way in which Turner, L. J., puts it self, and he conveyed it to persons upon trust for some is this, which I take to be much more accurate: “I members of his family. Another person of the name concur in the opinion that this motion should be re- of James, a member of the family, then made it after fused with costs. No man can have any right to rep- the death of Lieut. James, and sold it under the same resent his goods as the goods of another person, but in

name.

Now Lord Romilly, M. R., was of opinion that applications of this kind it must be made out that the although during the life-time of Lieut. James that defendant is selling his own goods as the goods of could not be done, it could be done after his death. I another. Where a person is selling goods under a par- am utterly unable to perceive any ground for that disticular name, and another person not having that tinction. If Lieut. James had the trade-mark, or name is using it, it may be presumed that he so uses it what was equivalent to a trade-mark, during his life, to represent the goods so sold by himself as the goods if Lieut. James had the right to prevent anybody of of the person whose name he uses; but where the de. the name of James or otherwise from selling “Lieut. fendant sells goods under his own name, and it hap- James's horse-blister," I cannot conceive how that pens that the plaintiff has the same name, it does not right was not transmitted to his legal personal reprefollow that the defendant is selling his goods as the sentatives, or why his legal personal representatives goods of the plaintiff. It is a question of evidence in had not the same right as Lieut. James had to enforce each case whether there is false representation or not.” that which was his right of property, to use Lord That I take to be the accurate description of the law Westbury's expression, in connection with the manuwhich was really adopted by the House of Lords, which facture of a horse-blister. It is possible that in that now, of course, has settled the law paramount to all case the Master of the Rolls may have thought that the cases before it in that case of Wotherspoon v. Curs “Lieut. James's horse-blister" being a mere recipe, rie, L. Rep., 5 H. of L. 508, in which the House of anybody who had got the recipe might go and get it Lords differed from the view that I originally took in made up by any chemist or druggist, and therefore that case. I thought myself bound, in Wotherspoon that “Lieut. James's horse-blister" was merely an inv. Currie, to apply what I thought was the rule of law dication that it was made according to Lieut. James's as laid down in Burgess v. Burgess, and some other recipe, which I am bound to say I am unable to concur cases which seemed to have followed it, that a man had in; still there might be that distinction that there the a right to use a name if he was not telling that which recipe was the whole thing. Now I cannot apply that was untrue on the face of it. But the House of Lords to a case like the present, where two people could make came to the conclusion that there were things which the article in question from the same recipe, and yet were marks of fraud in that case. The words used make articles as dissimilar as possible in point of qualwere, “Currie & Co., starch and corn flour manufac-ity. Of course where we are dealing with an article turers, Glenfield.” Now the name of the starch of the of food, a condiment, the merit and the value of the plaintiff was “Glenfield Starch,” and the defendant article depends on the great care which the one man was actually manufacturing starch at Glenfield for the might or might not take in selecting the very best artipurpose of enabling him to say that he was manufac- cles he was compounding together, and in the maniputuring it at Glenfield. There could be no doubt about lation of the articles, and the preservation of them that, and the House of Lords said the mere fact that during the course of manufacture. But I do not think he was really carrying on the manufacture at Glenfield, that there really is any substantial difference between and was not therefore telling a lie in that respect, did the two cases. What, as it appears to me, was in the not exempt him from the consequences of this, that mind of the Master of Rolls at the time, and what led the whole thing was intended and calculated to pro- to the fallacy, was this: there is no doubt that if a man duce on the mind of the purchasers the belief that his takes out a patent for a thing, and the thing is known article was the article of the plaintiffs. Lord West- as his patent, for instance, say “Flavell's Patent bury sums it up in a few words: “I take it to be clear Kitchener," and the patent expires, if the patent was from the evidence that long antecedent to the opera- known as the plaintiff's patent, then anybody else tions of the respondent the word 'Glenfield' had ac- might make the thing as “Flavell's Patent Kitchener," quired a secondary signification or meaning in connec- because Flavell's kitchener then does not mean made by tion with a particular manufacture. In short it had Flavell, but made according to Flavell's patent. What become the trade denomination of the starch made by have we got in this case? In the first place the thing the appellant. It was wholly taken out of its ordinary here was not invented by any Thorley at all, and meaning, and in connection with starch had acquired therefore "Thorley's food cannot signify a food made according to Thorley's invention. The invention is be got into a joint-stock company limited, for the sake said to be by somebody else, whose recipe is said to of selling these goods. Why was that name got in have been purchased by the original Thorley, and there except for the purpose of inducing the world to "Thorley's Food for Cattle” here, according to my believe that it was the same concern, or that it was the view, does not mean food consisting of particular in- | Thorley, that it was the same Thorley whose name was gredients or made up according to a particular recipe, the principal characteristio of the name of the article? because no purchaser would care about that; but The name of the company, I cannot help observing, “Thorley's Food for Cattle” meant that food which was J. W. Thorley & Co., Limited ,and that J. W. Thorfor many years was manufactured at works belonging ley & Co., Limited, is, to my mind, to begin with, a to Joseph Thorley, and afterward was manufactured fiction, an intentional fiction. The meaning of J. W. by his executors carrying on his business at the same Thorley & Co., Limited, that which it would convey to works. The words “ Thorley's Food for Cattle" would any person's mind, is that there was a partnership of indicate, according to my view of the case, to a pur- J. W. Thorley & Co., a real partnership, which had chaser, this: You have always had a very good article been carrying on business in the manufacture of this called “Thorley's Food for Cattle;” any article bear- food for cattle, and that for some reason or other, such ing that name is to you a guarantee that it comes from as we have seen constantly in our experience in this the same place from which that has come with which court, the partnership had been minded to convert you have hitherto been well satisfied and content. itself into a limited company for the more convenient That in truth is the meaning and object and result of transaction of its business. But here the J. W. Thora trade-mark. That is what a trade-mark is; it does ley was not a partner. J. W. Thorley was employed as not signify what it is — whether it is a name, or a sym- an agent, as the manager; and J. W. Thorley's only bol, or a fancy name, or any thing else. It indicates connection with the company, quâ company, is that he this, a warranty that the article to which it is attached had a one-shilling share in it, the company itself hav. has come from the particular manufacturer of the ing a capital of 2001., or something of that kind. To goods with which buyers have been hitherto pleased. my mind that really would be exactly the same thing "Thorley's Food for Cattle" never became an article as if somebody were to establish a brewery at Burton, of commerce as distinguished from the particular finding some one of the name of Bass, or somebody manufactory from which it had proceeded. I referred who would take the name of Bass - because there is in the course of the argument to a case as an illustra- no law to prevent a man assuming any name he likes tion which was the converse of this, the case of Liebig's - and then calling themselves J. Bass & Co., Limited, Extract of Meat Company, where the company wanted or W. Bass & Co., Limited, and advertising Bass & Co.'s to prevent some defendants from selling Liebig's ex- pale ale. I really can see no distinction between Bass tract of meat, or selling any thing of that name, the & Co.'s pale ale, as advertised by such a company got company having got Liebig to assist them and lend up in that way, and “Thorley's Food for Cattle," adthem his name. The answer to that was: Liebig's vertised by the company which has procured a person extract of meat has ceased to be a thing made by of the name of Thorley to be connected with their Liebig, because Liebig has published to the world the company. That of itself, to my mind, is a very strong mode by which it is made, and it has been made and thing to begin with. And then next we have to look manufactured generally, and has got into the Pharma- at the advertisements and circulars, and the almanac. copoeia, into books of cookery, into a dozen places, First of all, as to the packages, could any thing be where a dozen people can make it, and has now become more calculated to deceive? Those are the things by as much known as if it were called “Extract of Meat" which the company really influenced customers. It is alone, or any thing else, and Liebig's extract has ceased said by the defendants that they are very careful, and to have any connection with Liebig as the maker of it they have always been very careful, to avoid any thing for the purpose of the manufacturer, and was merely which could be considered as indications of any inthe description of it as the article known to the medi- tention on their part to pass their goods off as the cal world and other persons who had occasion to use others'. If they had been so very much minded in it. That was the converse of this case. There is that way, why did they not make their packages difnothing like that in this case of “Thorley's Food for ferent—the same shape and the same size it might be, Cattle.” Then we have to consider what was the because it might be convenient; but why did they not animus. It appears to me that that would be almost put them in a scarlet, blue, or orange and blue wrapsufficient to dispose of it; but there is one thing that per, or something that would have immediately shown struck me in this all through. We have had nothing like not only to a person minutely comparing the things a satisfactory explanation of how J. W. Thorley's com- together, but to any person who was in the habit of pany came into existence; how they came to form them- having the things in an orange packet, that it was a selves into a company, unless it was that they thought blue packet? Why did they vot do that, if they were that Thorley was making a very good thing; that they minded, as they say they were, not only to take care thought that Thorley's food was a very profitable thing; that their things should not be mistaken, but that the that it had got a very great reputation, and that some world should know that they were rival manufacturof them would like to steal the reputation which Thor- ers? Then there is the almanac which they have cirley's article had acquired. In order to do that, they culated, and in which they put things which were paid seem to have somehow or other got into communica- for by Thorley — Dr. Hassall's description and report, tion with a gentleman who was a relation of the late and things of that kind, and other passages — for the Joseph Thorley, and a connection of his executors, and purpose of implying that they were the persous for who for some years had been in the service of Joseph whom Dr. Hassall's report had been obtained, and that Thorley, and during those years, according to his own Dr. Hassall's report was a report on their manufacture. account, which I take to be true, had acquired a knowl- Then there is this again. they put, “It is the best catedge of the recipe, and had acquired the exact knowl- tle food in the world. Upward of 95,0001. has been edge of the manufacture, but who for several years awarded to horses and cattle fed on Thorley's food for previous to the existence of this company had never cattle. It has gained the diplomas from the Pennsylhad any thing to do with the manufacture of food for vania State Agricultural Society and of the Royal cattle, but was probably gaining his livelihood in some Agricultural Society," and so on, all of which was true other way; but having the same name of Thorley, of the article which was manufactured by Joseph which was the distinguishing mark of food for cattle, Thorley, but was not true of the article which was he either tendered himself for sale, or was found for manufactured by them; that is to say, their article purchase by some person, in order that his name might had not received any of these things. They may say their article is the same or as good, but in my opinion round circulars of warning to the effect that the the representation is not, “We are making an article company were seeking to foist upon the public an as good or the same as Thorley's, which gained the article which they pretended was the same as that prize,” but “This is the thing, we are the persons who manufactured by the late Joseph Thorley. I do are selling the thing, the produce of the manufactory, not think that the defendants in that action were which has obtained those prizes.” There are other justified in issuing either the one or the other. In things which I need not stop to dilate upon. On the my opinion they had no right to state that they were parol evidence I am satisfied, and I agree very much alone possessed of the secret, nor had a right to say with what Mr. Townsend said with regard to the wit- that the plaintiffs in that action were seeking to foist ness Stillweli, who was a traveller for the company, upon the public an article which they pretended was and who went to people and said, “I come from Thor- the same as that manufactured by the late Joseph ley's; Joseph Thorley is dead; the persons I represent Thorley. It is unnecessary to go through the evidence are carrying on the business.” I have not the slightest in the case, but I feel bound to say that, in my opindoubt that, being well warned that he was not to say ion, the burden was on the defendants in such a case any thing which could be construed into a positive to show that there was some difference, and I think assertion that the company were carrying on the same something more than a mere nominal difference, some business, at the same premises, or were the successors substantial difference between the article made by the in business, he took care to say that they were carry- plaintiffs and the article made by the defendants. In ing on the business of manufacturing food for cattle. my opinion, having very carefully gone through the sevIt might be said, it was true that they were carrying eral analyses in each case, there does not appear to be on the food for cattle business; but the intention and any substantial difference. There may be a little more the effect of that, in my mind, was to cause a belief to of the spice in the one than in the other, and so far as be entertained by the persons to whom it was ad- there might be a little excess of spice the article may dressed, who all say they did form that belief from it, be perhaps a little more useful, but there is no subthat it was the same concern; that the company were stantial difference between the constitution of the carrying on the same manufactory from which the contents of the two packets. But passing from the things used to be distributed to the world, I am there- appeal in that case to the appeal in the action in which fore of opinion that, in this case, what the defendant the executors of Joseph Thorley are the plaintiffs, I company have done has been calculated to deceive, and am of opinion that the question for determination by I am bound to say in my judgment I have no doubt us is this: Have the company, in offering for sale the was from the first intended to deceive, the persons article manufactured by them, made representations purchasing their article, into the belief that they were which were calculated to induce a reasonable belief on purchasing the article which Joseph Thorley had for- the part of those to whom the offers were made that merly manufactured at the works which had obtained the article was manufactured by the successors of the great reputation which Thorley's manufacture ap- Joseph Thorley? In my opinion that question must pears to have obtained from the purchasers of those be answered in the affirmative, and, being so answered, condiments. I am of opinion that the order should it appears to me that an injunction ought to issue subhave been granted very much in the general words in stantially in the form in which it is mentioned in the which it was asked.

writ. Now, the circumstances under which this man

ufacture was commenced by the company in the year BAGGALLAY, L. J. The first of the two appeals | 1877 cannot be disregarded. Down to that period the which was opened to us was against the judgment in manufacture of the article known as “Thorley's Food the action in which Thorley's Cattle Food Company

for Cattle” had been carried on for twenty years, first were the plaintiffs. The vice-chancellor declared that of all by Joseph Thorley, and after his death by his the defendants were not entitled to advertise or rep- executors. He had acquired the recipe for the manuresent that they or the proprietors of the establish- facture of this article from a person, I think, of the ment carrying on business as Joseph Thorley were name of Fawcett twenty years before the time when alone possessed of the secret for compounding the con- the company was formed. No doubt, after a time, when diment known as “Thorley's Food for Cattle," and Fawcett had fully instructed him in the manufacture of proceeded to grant an injunction restraining the de- the article, his brother, J. W. Thorley, was taken by fendants from advertising or representing, or inserting him as clerk or as some other servant, into his employor suggesting in their advertisements or circulars, that ment, and whilst in that employment he acquired a they were alone possessed of the secret, and from rep- knowledge of the way of compounding this condiment. resenting or suggesting, or doing any thing calculated But he had left his service for ten years before Joseph to represent or suggest, that the cattle food manufac- died in 1876, and then, his business having been confined tured and sold by the plaintiffs was spurious, or not to Joseph Thorley and his executors, within nine or ten genuine, or not compounded in accordance with the months after Joseph Thorley's death we have this true recipe. I need not read the remainder of it. I company formed under circumstances which are very agree with the lord justice in thinking that that appeal suggestive of an endeavor to get the benefit of the should be dismissed. The company having been sale, or the good repute which the manufacture and founded in March, 1877, these advertisements were in- sale of this article had produced to Joseph Thorley. serted in the newspapers, and the circulars issued in We have a company fornied and called “J. W. Thorthe latter part of the month of June in the same year. ley's Cattle Food Company, Limited." The only exThe advertisement was in fact in the form of a caution: cuse for having the name “J. W. Thorley” introduced “The public, and in particular all farmers, graziers, into the description of the company is this, that he dealers and others, purchasing this world-famed food, took a share to the extent of one shilling, the shares are warned that any food for cattle purporting to be of this company being one shilling only. He took one Thorley's Food for Cattle, and not signed with the share of one shilling in the company, and was then name of 'Joseph Thorley,' is not the manufacture of employed by the company as the manager of their the establishment carrying on the business as Joseph business. I say this company was started under Thorley.” Thus far no objection could be raised to it; circumstances of a very suspicious character. We but it goes on, “The proprietors of which are alone have had a good deal of argument as to the right possessed of the secret of compounding that famous to use the name Thorley's Food for Cattle," and condiment, and carry on business at Pembroke wharf, whether any person at the present time could use Caledonian road. "In the circular which was the sec- that name except the executors of Joseph Thorley. I ond subject of complaint, they said that they had sent think the passage which James, L. J., has referred to

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