knott vs morgan

7/27/2019 Knott vs Morgan

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610 KNOTT 21. MORGAN a g s g ~ t.

subsequent interest was to be computed upon the principal only. Bruere v. Whartonhad appeared very recently, but, in point of date, was considerably prior to thedecision in Whatton v. Cradock.

On bills of foreclosure, when the

mortgagor asked to enlarge the time appointed for payment, and the Court thoughtproper to grant thc application, the practice formerly was not to order any immediatepayment, but to order subsequent interest to be computed on the aggregate amountof principal, interest, and costs already reported. For many years past, however,the practice has been to enlarge the time only on the terms of first paying the interestand costs already reported ; and these being paid, subsequent interest is to be com-puted on the principal only, that alone remaiuing unpaid. ilfmkhcnue v. The Cmpwu-tion of Bedford (17 Ves. 380), and Edwards v. C‘itnlife (1 Mad. 287 ) , do not appear to

have been referred to in the case cited. If, for any special reihson, the Court shouldthink fit to enlarge the time without ordering any immediate payment, I conceivethat it would now be proper to order the subsequent interest to be computed on the

aggregate amount of principal, interest, and costs before computed.The present case, however, does not arise on a bill of foreclosure ; t is not the

case of a mortgagor asking for delay, but of a mortgagee asking for payment in anadministration suit in which the mortgaged estate has been sold; and, after theinquiries which I made as to the practice in such cases, when Whatton v. Cradock wasunder my consideration, I think that the direction there given was right, and that,in this case, the direction must be to compute subsequent interest on the principalonly.

[213] KNOTT. MORGAN.July 27, August 10, 1836.

[See Raqgctt v. Fi.ndlatsr, 1873, L. R. 17 Eq. 40.1

Injunction granted to restrain the Defendant from running an omnibus having uponit such names, words, and devices as to form a colourable imitation of the words,names, and devices on the omnibuses of the Plaintiffs.

THE MASTEROF THE ROLLS[Lord Langdale].

An ex parte injunction was obtained on the 27th of July, restraining the Defendant,Robert Morgan, his agents and servants, from running, or in any manner using orcausing to be used, for the conveyance of passengers, his omnibus in the billmentioned, with the names ‘‘London Conveyance ” and “Original Conveyance for

Company,” or either of such names painted, stamped, printed, or written thereon,or in any manner affixed thereto ; arid also from running, or in any manner using or

causing to be used, for the conveyance of passengers, any omnibus, carriage, orvehicle having the names ‘‘Conveyance Conipany,” and “London ConveyanceCompany,” or either of such names, or any colourable imitation of such names, oreither of them painted, stamped, printed, or written thereon, or in any mannerafixed thereto.

[214] The bill was filed by four of the proprietors of the London ConveyanceCompany, on behalf of themselves and the other proprietors ; and it stated tha t thecompany was established under a deed, which was set forth in the bill, for the purposeof running omnibuses between Paddington and the Bank ; hat their omnibuses were

of a novel and superior construction ; and that the Defendant, with the view anddesign of fraudulently procuring the custom of persons who were in the habit ofusing the omnibuses of the Plaintiffs, began to run between Paddington and theBank an omnibus, on which were painted the words, “Coiiveyance Company ” and“London Conveyance Company,” in such characters and parts of the omnibus asexactly to resemble the same words on the omnibuses of the Plaintiffs ; hat a starand garter were, in like manner, painted on the omnibus of the Defendant, so asexactly t o resemble the same symbol on the omnibuses of the Plaintiffs; and thatthe green livery and gold hat-bands, by which the Plaintiffs distinguished the coach-men and conductors of their omnibuses, were in like manner imitated by theDefendant. The bill further stated, that the Plaintiffs served a notice upon the

Defendant, intimating that an injunction would be applied for, if the Defendantcontinued to use the title and insignia by which the omnibuses of the Plaintiffs were



9 Kflm sl3. KNOTT tJ. MORGAN 611

distinguished ; and that, after such notice, the Defendant obliterated from the backaf his omnibus the word ‘‘Company,” and painted on each side of his omnibus overthe words I‘ Conveyance Company,’’ the word I ‘ Original,” and between the words“Conveyance” and “Company” the word “for” in very small and invisible

characters, so that there were then painted on the back of the Defendant’s omiiibus,the words “London Conveyance,” and on each side, the words ‘‘Original Conveyancefor Company.” The bill stated that the coachmen and [216] conductors employedby the Defendant continued to wear the same livery; and i t charged tha t suchcolourable imitation of the name and title of the London Conveyance Company wasa raud upon the Plaintiffs and the public ; and it prayed an injunction.

A motion was now made to dissolve the injunction.The first round, upon

which we contend that the order for t‘his injunction cannot be sustainet is, that thePlaintiffs have not complied with the requisitions of the Acts of Parliament, passedfor regulating hackney and stage carriages, arid are, therefore, riot entitled to sue.

By the eleventh section of the 1 & 2 W. 4, c. 32, which is an Act to amend the lawsrelating to hackney oarriages, and to place the collection of duties on hackneycarriages under the Commissioners of Stamps, i t is provided that a requisition for alicenceshalk be made by the proprietor, or one of the proprietors of the hackneycarriage in respect of which the licence shall be applied for, and that in such requisi-tion there shall be specified the Christian name and surname, and place of abode, ofevery person who should be a proprietor; and the twelfth section enacts that inevery licence granted there shall be the like specification. The ninth and eleventhsections of the 2 C9 c 3 \V . 4, c. 120, contain exactly the same provisiotis in respect tostage carriages. It is admitted, upon the bill, that there are 100 proprietors, andit is not alleged that the provisions of the Act have been c o ~ p ~ i e dith. The four

Plaintiffa are, in point of fact, the only proprietors whose names are specified intheir licence. This is a fatal objection to the suit, upon the principle that the Courtwill not give relief to a [216] party who has not complied with the requisitions ofan h o t of Parliament, which are i n the nature of a condition precedent to his assum-

ing the character in which he sues. Thus, in Harmer v. Wdstmacott (6 Sim. 284), theCoiirt refused to relieve the assignees of a party against a fraudulent transfer of his~ n t ~ r ~ ~ tn a newspper, on the ground that that party had himself i ~ ~ f ~ i n g ~heprovisions o€ the Act, which requires the true names of the proprietors of a newspaperto be delivered to the Commissioners of S6mps. The same principle i s recognisedin cases which have been determined at law. Bensley v. BignoW (8 Taunt. I42) ,Uarchamt Y. Evum ( 5 B. cP: Ald. 335), Stepheas I-.Mobinson (2 Cr. C9 c Jer. 209).

If this objection he good, it is immaterial whether the Defeiidatit has, as is alleged,fraudulently endeavoured, by a colourable imitation of the title arid insignia of the~ l a i ~ i ~ s ,o degrive them of their i~gi tima te rofits. But there is no ground forthat dlegation. The P l a i ~ t i ~ save no right to appropriate to themselves the titleof ‘‘London Conveyance Conipany; still less can they claim a monopoly in the useof the words “ Conveyance Company,” which is a distinct title from that which theyassume ia the deed. In the bill they say their profits have been diminished by theconduct of the Defendant; but in their aEdavit they onIy swear that thcir profitshave been “affected,” md their profits may, i n fact, have been increased by thecomFe~tion. The Court will not favour ap~lications n restraint of trade, the efFectof granting which would be to deprive the public of the benefit arising from com-petition. In Bkrnehard v. Hill (2 Atk. 284), Lord Hardwicke said he did not knowany inabnce of granting an injunction to restrain one trader @17] from using thesame mark with another, and he thought i t would be of mischievous consequence todo it. Arid in Smith v. Fromont (2 Swanst. 333) , Lord Eldon, after mentioning theonly instance which he recolIected of an application to the Court to restrain thedriving of coaches, said he had some doubt whether he was not degra(~ inghe dignityof the Court by interfering.

The eleventh section oE the Act, relatingt o stage carriages, which is alone applicable to the present case, and which is reliedupon on the other side, requires the particulars therein enumerated to be specified it1

the licence, or “such of them as the Comniissioners shall think fit;” so that theCommissioners have a discretion to dispense with the specification of the names of

August 10.Mr. Kindwstey and Mr. Bird, in supportf of the motion.

Mr. Pemberton arid Mr. Turner, contrii.



KNOTT ‘U. XORGAW 2 KEEN p18-1.2

all the proprietors ; and, in this ~nstance, hey have exercised that discretioii bygranting a licence in which the names of four of the pro~rietors nly are specified.But, even if the Comm~ssioRershad no such discretion, there is no ground for theobjection, arid the case of Harmer v. Yestmacott has no application. The distinction

is this-that, where an Act contains a provision which relates merely to the regulationof the revenue, and imposes a penalty for the breach of it, such provision creates no.disability, and has no operation beyond the liability to pay the penalty if the regula-tion is infringed. But where the Act contains a regulation, which has for its objectthe protection of the public, and the infringement of which is against the policy o fthe law, the non-compliance with that regulation will disqualify a party from suing,in a charwter which he has not, in point of law, acquired. The provision in the Actof Parliament, [218] requiring the insertion of the true names of the proprietors of anewspaper in the affidavit delivered to the Commissioners of Stamps, is a provisionmade for the protection of the public, and i t was 0x1 account of the violation of thnt

[‘No relief,” said the

~ i c e - ~ h ~ n c e ~ ~ o ~ ,‘

n that case, can he given, in a Court of Justice, to those who shewtha t they thought proper to disappoint the policy of the law, and to do that whichthe policy of the law requires should not be done.” I n this case the specification of

the names of all the proprietors is a mere fiscat regulation, for the non-compliancewith which a penalty is imposed; and the Act, moreover, contains an expressprovision that no person shall sue for the penalty except under the authority of theCommissioners. The Copyright Act (8 Ann. e. 19) requires an entry of the work,previous to publication, a t Stationers’ Hall ; yet it has been held that the neglect toenter the work at Stationers’ Hall does not disable an author, whose book has beenpirated, from maintaining an action for damages; BccLfurcl v. Hood (7 T. E. 6 2 0 ) .

As to the merits, it is scarcely attempted to be denied that the Defendant has

pirated the title, liveries and decorations of the Plaintiffs; arid the variation whichthe Defendant made in some of these. particulara, after the notice with which he wasserved, strengthen^ instead of alteriiig the case of fraud which is made by thePlaintiffs. The l aw has been settled, from the year-books downwards, that a man.has no right to trade under false colours, aud to sell his goods as another’s.

rovision that relief was refused in ~a~~~~~v. ~ ~ ~ ~ ~ ~ a ~ o t ~ .

Mr. Kindersley, in reply.[z19] THEMASTEROF THE ROLLSLord Larigdale]. The first question is, whether

the Plaintiffs are entitled to sue ; and I think that, ir i the absence of any evidence tothe coiitrary, I must presume that the Commissioners of Stamps, in whom the Act ofParlkment has vested the power of licerising the proprietors of stage carriages, havegranted to the Plaintiff’sa proper licence, and that the Plaintiffs have, consequently,a right to sue.

The onlv other question is, whether the Defendant fraudulently imitated the titleand insign&, used i?p the Plaintiffa for the purpose of injuriug t6em in their trade;and, upon the affidavits and evidence before me, I have not the least doubt that theDefendant did intend to induce the public to believe that the ornnihus which he.painted snd appointed, so as to r e s ~ m ~ j ~ ehe carriages of the P~ ~i~ i t i f f s ,as, in fact,an amnibus beloIigiti~ o the PIai~Itiffsand the other p~oprietorsof the LondonConveyance Company. It is not to be said that the Plaintif% have any exclusiveright to the words <‘ Conveyance Compar~y,” r ‘‘London Conveyance Company,” orany other words; but they have a right to call upon t h i s Court to restrain theDefendant from fraudulently using precisely the same words arid devices which theyhave taken for the purpose of distinguishing their property, and thereby deprivingthem of the fair profits of their business by attracting custom on the false representa-tion that carriages, really the Defendant’s, belorig to, artcl are under the managementof, the Plaintiffs. I am not satisfied that the iiijuriction has been drawn up exactlyin the worcls in which it ought to have hean framed. Let the order, dated the 27thday of July last, be varied, therefore, so thitt the injunction niay be Liwardetl torestrain the DeEenclant, Rottert Morgan, his servatits m c I ageitts, from running, or i i t

[220] atiy manner using or eausiiig to be used, for the cottveyanceof psssengers, hisomrribus in the bill n~e~it~ozIec1,r any other ~ i ~ ~ r j j ~ ~ i s ,avirtg painted, stamped, prititecl,or written thereon the wonls or names “London Coitve~Ii~e,”1‘ “Origiiial Gonvey-ance for Gonipmy,” or any other names, words, or devices painted, stiutuped, priiitecl,or writteu thereon, in such nianner as to forttt or be a colonrattle irnitatio~tof the



a m m . BERRY ‘U AEMIBTEAD 613

names worda and devices painted, stamped, printed, or written on the omnibuses ofthe Plaintiffs; and let the Defendant pay to the Plaintiffs their costs of thisappIication.

An appeal motion to discharge this order was heard a t the Lord Chancellor’s houseon the 18th and 19th of August, and dismissed by his Lordship with costs. Theobjection to the suit, an the ground of the non-compliance of the Plaintiffs with thedirections contained in the ninth and eleventh sections of the 2 C9c 3 W. , c. 120, was

again urged, on the part of the Appellant, by Sir Charles Wetherell, Mr. Kindersley,and Mr,Bird ; but the Lord Chancellor waa of opinion that those directions weremerely fiscal, and did not affect the Plaintiffs right to sue.

T

[221] BERXYU ARNISTEAD.A p d 20, 22, J d y 5, 1836.

[S. C. 5 L.J.

Ch. (N,310.1

A purchaser and his solicitor fraudulently, and in the absence of the purchaser’ssolieitor, obtained from a purchaser (who was desirous of completing the purchase,and bad entered into possession) the purchase-money arid covenants for theproduction of title-deeds, while the title as to a part of the purchased premises wasstill under investigation.

On a bill filed by the purchaser agaiiist the vendor and his solicitor, it was held, thatthe Plaintiff w a entitled to have the contract rescinded, and his purchase-money,together with all costs, charges, arid expenses (including auction duty), repaid tohim, and to have the deeds of coveirant executed by him delivered up to be

cancelled.

The bill was filed by Richard StitTIing Berry, the purchaser of part of an estatewhich had been sold by auction, against Arthur Armistead, the vendor, and RichardWillis, his sdicitor; nd it prayed a declaration tha t the Plaintiff had been irtducedto complete his purchase by the false arid fraudulent misrepresentations of theDefendants, and that the agreements for the purchase might be rescinded, anddelivered up to be cancelled; hat the purchase-money, together with all the costs,charges, and expenses incident to the purchaae, might be repaid to the Plaintiff j anclthat t he deeda of covenant, fraudulently procured to be executed by the Plaintiff,might be delivered up; or for a reference to the Master, to ascertain to what part

of the premises a good title could be made, and for a compensation as to the rest;and tha t the Defendants Armistead and Willis might pay the costs of the suit.The Defendants, by their answer, insisted that the Plaintiff had accepted the title;

had been let into possession of the estates in question ; and had executed the deeds ofcovenant, and paid the purchase-money, with a fnll knowledge of all the circumstancesof the transsctioa which the Plaintiff sought to impeach.

The case made by the bill was, that the Defendant Armistead, claiming to beseised in fee-simple of certain estates devised to him by the will of Jamcs Bibly, datedE2221 the 30th of January 1822, upon trust for sde, put up the same for sale byauction, on the 30th of September 1833, in many lots ; and that, at su& aaction, thePlaintiff became the purchaser of ten lots, a t sums amounting ill the whole to &:2170;

and tha t he subsequently became the purchaser of another part of the same estatefor the sum of $735. The sum of 2317 was paid by the Plaintiff in part payment ofthe purchasemoney.

On the 12th of January 1833, abstracts were delivered by the Defendant Willis,the solicitor of the vendor, to Thomas Wilson, the solicitor of the Plaintiff; and, inthe same month, the Plaintiff took possession. On the 31st of the same month ofJanuary the abstracts were returned, with several marginal queries, one of which,opposite ta the recital of a fine levied by the testator, after the date of his will, wasas folbws : “Query as to the operation of this fine upon the will : copy of chirographto be furnished to ascertain this.” The abstracts were returned by the solicitor ofthe vendor to the solicitor of the purchaser on the 13th of February 1833, vith

answws to the several queries ; and under the last-mentioned query were written the

knott vs morgan

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