RECENT DECISIONS

Progress, Volume II, Issue 5, 1 March 1907, Page 184

RECENT DECISIONS

Libel. Trade protection agency Privileged communication. Malice. —R. G. Dun and Co., a trade protection society in Sydney, furnished to a subscriDer, in response to a request trom the latter, a confidential report on Macintosh & Sons, a firm of hardware mercnants containing damaging statements as to the firm's commercial standing and financial position. Macintosh & Son sued Dun & Co. for libel. Held by the High Court of Australia that the occasion was pnvileged and that malice was negatived by the nnding oi tne jury that Dun & in publishing the report, consisting mainly of matters of rumour and repute, acted from a sense of duty to their subscriDers, and exercised care to ascertain whether the statements in the report were true or false that Dun and Co. were entitled to give evidence that the rumours referred to did exist, and that the buidt.ii of proof was on Macintosh & Sons to prove that the rumours either did not exist or were untrue to the knowledge of Dun & Co., and that a document dated some months later than the reports and found m Dun & Co.'s possession, instructing its officers to call in and cancel previous reports on the firm in consequence of fresh information received from one of the firm was properly rejected as irrelevant and affording no evidence that three months before Dun & Co. knew that what they then said was untrue Judgment was therefore given for Dun & Co. Dun v. Macintosh. 3 Com monweaUh L.R. 1134.

Road. Destruction by river. Way of necesSITY.—Mr. Miller owned land bounded by a public road running along the bank of the Mataura river, Southland. The river changed its course and washed away part of the road, so that travellers, unless they took another and more circuitous road, would have to pass over Mr. Miller's land to proceed on their journey. The Southland County Council brought an action against Mr. Miller, claiming that, the river having altered its course, the course of the road was altered and that the public were entitled to a public road, of the width of the original road, along the existing bank of the river, and that Mr. Miller must shift his fences and continue to shift them, as the river changed, so as always to allow a line of road along the bank of the river of the width of the original one. Held by Cooper, J., that the public had no such right and that it was very doubtful whether any individual wayfarer has, when the road becomes impassable, by flood , snow or other obstruction, a right to go on the adjoining land to avoid the obstruction. Attorney-General and Southland County v. Miller. IX Gaz. L.R. 145.

Company. Incidental Business. Ultra, vires The Mersey Railway Company owns an electric railway running under the river Mersey from Liverpool to Birkenhead and certain extensions and connecting railway lines in those towns. The Corporation of Birkenhead owns a ferry across the Mersey to Liverpool. The traffic on the railway line and on the ferry are to a considerable extent in competition. The Corporation owns a system of tramways which runs conveniently for the ferry boat, but not for the railway. The Railway Company instituted in December, 1905, bona fide for the purpose of obtaining traffic on the railway, a service of motor omnibuses for passengers at Birkenhead between the residential part of the town and the station near the river. The omnibuses took up not merely passengers to and from the station, but also " pick-up" passengers, who alighted at intermediate points. The fares varied according to the distance travelled, and included fares specially fixed for journeys between intermediate stopping places between the station and the other terminus The Corporation seeing; that a fare given to the buses was a fare taken from the trams and the ferry, instituted an action through the Attorney General for an injunction to restrain the Company from ruumng the buses on the ground that it was ultra vires. Wamngton, J., granted the injunction holding that the Company could not carry on an omnibus service at all. The Com pany appealed. Held by the Court of Appeal that the running of omnibuses for the sole purpose of carrying passengers to and from the station was incidental to the business of the railway and therefore not ultra vires ; by Vaughan Williams, and Moultor, L.J.J., that the conveyance of passengers between intermediate points was ultra vires, and

that therefore what the Railway Company was actually doing was ultra vires, and that the Company must in future decline to take persons other than passengers or intending passengers on their railway, and all fares must be fixed as fares to or from the railway station, by Buckley, L.J , that the omnibus service was run bona fide for the use of passengers, its employment did not become ultra vires by the Company taking to a leasonable extent extraneous traffic which added to the commercial prosperity of the undertaking and that therefore the omnibus ser\ice as run was not ultra viies. The Railway Company was therefore allowed to continue the omnibus service subject to its giving an undertaking as suggested by the majority of the Court Attorney Ge> e>al v Mersey Railway Co 23 Tima L R 129.

Tradf Name Secondary Meaning. Passing orr " Bile Beans "—" Bile Beans " for Biliousness has been adveitised with " damnable iteration " all over the world by The Bile Bean Manufacturing Co. Ltd , whose advertisements have stated that the basis of the beans was an Australian herb discovered bv Charles Forde, an eminent scientist after long research The statements, like many others in the advertisements, were false, but enabled the Company to build up an extensive business Mr Davidson, an Edinburgh chemist, saw no reason why he also should not sell antibihous pills as " bile beans," and did so m boxes of a different size and marked by a label of a different colour on which his own name and not that of the imaginary scientist, Charles Forde, appeared. The Company promptly sued him in Scotland asking that he should be interdicted from selling as Bile Beans pills not made or supplied by them and claiming that the term " Bile Beans " had acquired a secondary meaning and denoted only the pills sold by the Company Held by the Court of Session that the false and fraudulent misrepresentations bv which the Company had built up its business disentitled them to have that business protected by the Court, that the Company had not any right to the exclusive use of the words " Bile Beans," and that such words did not denote their manufacture alone so as to exclude the use of them bv other traders, and the interdict was refused The Lord Justice Clerk said " The evidence in this case disclosed the history of a gigantic and too successful fraud The complainers, who ask interdict gainst others, do so to protect a business which they have brought to enormous proportions by a course of lying which has been persisted in for years. .. . The complainers cannot succeed in obtaining assistance from the Law for a business based on unblushing falsehood for the purpose of defrauding the public into a totally false belief as to the origin and materials of the goods they sell."

Judgment in Australia. Enforcement in England Jurisdiction. Partnership —Mr. Symon in 1895 was residing in Western Australia and became a partner in a syndicate to work a gold mine. After going backwards and forwards between Australia and England, he in 1899 left the colony and from that time resided in England In 1901 the other partners brought an action against him in Western Australia claiming that the partner ship should be declared to be dissolved, the lease of the mine sold, and accounts taken He was served with the writ in England, and was kept informed about the course of the action, but did not appear. Judgment was pronounced as claimed The mine was sold under the order of the Court at a price which left a deficiency, and accounts were taken by which the defendant's share of the liabilities of the syndicate was fixed at The other partners then sued Mr Symon in England upon the judgment of the Court of Western Australia to recover that sum He defended the action on the ground that, as at no time during the suit he was domiciled in Western Australia, he was not bound by the judgment. Held by Channell, J , that by joining the partnership for the working of the mine in Western Australia Mr Symon thereby contracted that partnership disputes, not merely those arising during the partnership, but also those on its termination, should be settled in the Courts of that colony, and that therefore he had submitted to the jurisdiction of the Colonial Court, which was binding upon him A question having arisen as to the date of the dissolution of the partnership Channel, J., explained that it was a question of considerable doubt since the Partnership Act whether the assignment of shares by one partner to another partner dissolved a partnership Emanuel v. Symon 23 Times L.R. 94.

Company Liability or Receiver upon unexecutfd Contract —Bell, Harrison &. Co Ltd , colliery timber merchants, had a contract to supply Nixon's Navigation Company, Ltd , with certain quantities of pit props. The Company became m arrears with the deliveries and the time was ex tended to 30th June, 1906 In November, 1905, Mr. Forster was appointed by the Court receiver and manager of Bell, Harrison & Co Ltd. on behalf

of the debenture holders, and notice was given to Nixon's Co. Mr. Forster dehveied a quantity of props at different tinies, but subsequently gave notice to Nixon's Co. that he could not undertake to carry out the contract. He then sued Nixon's Co for the price of the timber delivered by him, and the Company claimed that they were entitled to set off and counterclaim against him for the difference between the contract price and the maiket price of the timber not delivered undei the contract with Bell, Harrison & Co , the price of timber having risen so as to make the damages for non-delivery exceed the amount of Mr Forster's claim. Held by Channel, J., that although the receiver had delivered some timber under the contract, he did not hereby make himself personally liable on the contract, but that he could not recover on his claim except subject to the nehts of NiNor/s Co to set off their claim arising out of the contract against his, because he could only recover as assignee (if at all). Forster v. Nixon' 6 Navigation Company, Ltd., 23 Times L.R. 138.

Innkeeper. Lodger. Liability for Fire. — Mr. Cowan, the Landlord of the Blue Bell Hotel at Gladstone in Queensland, instructed his servants to burn sulphur in saucepans to fumigate two of the rooms. They did so and left the st.iff in one of the rooms, which took fire and burnt down the hotel and m it the personal effects of Mr Kellett, a lodger, to the value of who sued Mr Couan for this loss. Held by the Full Court, reversing the judgment of Power J , that a man who starts a fire on his premises is responsible for all damages caused by the fire, unless he is able to prove that its spread was owing to or occasioned by some force against whi;h it was not possible to contend; and he is guilty of negligence unless he uses all such means to subdue the fire and keep it within bounds as are frustrated only by non-pieventible force, that the extension of the fire was due to the negligence of Mr. Cowan, and that he must pay for Mr Kellet's loss. Kcllet v. Cowan. 1906 State Reports of Queensland 116.

Bankruptcy. After acquired Property. — Mr. A. Bennett became bankrupt in 1896 and died in 1905 intestate and undischarged. About a year before his death he insured his life for £300. This amount was paid to his brother Percy Bennett who took out letters of administration to his estate and who had no knowledge of the bankruptcy. Percy distributed the balance after payment of expenses amongst the next of km of the intestate. He was one and his share was £38-7-0. When the trustee of the bankrupt heard of the policy moneys he demanded them all from Percy. The Court held that the moneys were the after-acquired property of the bankrupt and that Percy must pay back the £38-7-0 retained as his share as one of the next of kin, but not the shares paid to the other next of kin. The trustee accordingly proceeded to make them disgorge. Herbert Bennett, however, resisted on the ground that he had received the money without notice of the bankruptcy and before the trustee intervened. Held by Bigham, J , that until the trustee intervened all transactions by a bankrupt after his bankruptcy with any person dealing with him bona fide and for value in respect of his after-acquired property, whether with or without knowledge of the bankruptcy, are valid against the trustee, that here however Herbert had given no value for the money received, and therefore must pay it to the trustee. In re. Bennett 23 Times L.R. 99.

Lease. Right of Renewal Valuation. — A landlord and tenant executed a document headed Memorandum of Agreement, but couched m the language of an ordinary deed of lease, signed by the parties and attested as a deed. It contained a provision that " at the end of the herem-mentioned lease the lessee may release the said demised land for a further term at a valuation as may then be agreed upon. The landlord sued for possession and the tenant claimed a renewal of the lease. Held by Edwards, J., that the document was a deed, that the " further t°rm " was to be of the same duration as that granted by the lease, and that the agreement for a renewal contained in the provision was a valid contract enforceable by a decree for specific performance referring it to the Registrar to ascertain a fair rent for the fresh term. Malfroy v. Raymond. IX Gaz. L.R. 236.