No. 11.

- Bryant and another v. Herbert, 3 C. P. D. 392, 393. —Notes.

entitled, the real cause of action in fact is a wrongful act, and not a breach of contract, because it may arise and occur when there is no contract, and the remedy sought is not a remedy which arises upon a breach of contract. The real substantial cause of action is a wrongful act, and I am not prepared to say that the statute did not mean when it used the words

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"founded on contract," or "founded on tort," founded on [* 393] breach of contract as distinguished from founded on

a wrongful act. If so the action is founded on a wrongful act, and therefore within the meaning of the statute is founded on tort.

My Brother BAGGALLAY agrees in the result at which we have arrived. Judgment reversed.

ENGLISH NOTES.

The Act of 30 & 31 Vict. upon which the above case was decided, was repealed by the County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 188. The enactment of this Act corresponding to sect. 5 of the former Act, is as follows:

"Sect. 116. With respect to any action brought in the High Court which could have been commenced in a county Court, the following provisions shall apply:

"1. If in an action founded on contract the plaintiff shall recover a sum less than twenty pounds, he shall not be entitled to any costs of the action, and if he shall recover a sum of twenty pounds or upwards, but less than fifty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county Court; and 2. If in an action founded on tort the plaintiff shall recover a sum less than ten pounds, he shall not be entitled to any costs of the action; and, if he shall recover a sum of ten pounds or upwards, but less than twenty pounds, he shall not be entitled to any more costs than he would have been entitled to if the action had been brought in a county Court; unless in any such action, whether founded on contract or on tort, a Judge of the High Court certifies that there was sufficient reason for bringing the action in that Court, or unless the High Court or a Judge thereof at Chambers shall by order allow costs. Provided that, if in any action founded on contract the plaintiff shall within twenty-one days after the service of the writ, or within such further time as may be ordered by the High Court, or a Judge thereof, obtain an order under Order Fourteen of the

Rules of the Supreme Court empowering him to enter judgment for a sum of twenty pounds or upwards, he shall be entitled to costs according to the scale for the time being in. use in the Supreme Court."

The principle of Bryant v. Herbert is applied under the Act of 1888 in the case of Taylor v. Manchester, Sheffield, & Lincolnshire Railway Co. (C. A. 1894), 1895, 1 Q. B. 134, 64 L. J. Q. B. 6, 71 L. T. 596, 43 W. R. 120. This was an action by a passenger in a railway carriage, arising out of the negligence of a servant of the railway company by shutting the door of the carriage so as to crush the plaintiff's thumb. The Court of Appeal, on a reference from the Judge in Chambers, decided that the action must be considered as an action "founded on tort" within the meaning of the section. The gist of the decision may be stated in the words of Lord Justice LINDLEY as follows (64 L. J. Q. B. 8): "We have to consider this Act of Parliament, and the only cases which are of any importance and assistance, as enabling us to construe the Act, are those cases which have been decided upon it or upon the similar enactment in the Act of 1867, which this Act has replaced. First and foremost, there is the case of Bryant v. Herbert (supra); secondly, there is a case decided in the same year of Pontifex v. Midland Railway Co. (3 Q. B. D. 23, 47 L. J. Q. B. 28); and then in the next year there was the case of Fleming v. Manchester, Sheffield, & Lincolnshire Railway Co. (4 Q. B. D. 81). Having studied those cases with care (I do not think it necessary to go into them), it appears to me that this is an action founded on tort, and the conclusion to which I have arrived is based upon these reasons. That which caused the injury was not an act of omission, it was not a mere non-feasance; it was not merely the not taking such care of the plaintiff as by the contract the defendants were bound to take, but it was an act of misfeasance -it was positive negligence in jamming his hand. Contract or no contract, he could maintain an action for that. All he would have to prove would be that he was lawfully on the premises of the railway company, and the contract is merely a part of the history of the case. I do not think it would be possible, without running contrary to the reasoning of the Court of Appeal in the case of Bryant v. Herbert (supra), which reversed the decision of Mr. Justice DENMAN and myself in the same case, to hold that, within the meaning of the County Courts Act, this is an action founded on contract as distinguished from tort."

The Irish statutes relating to a similar matter are differently worded, the categories by actions of contract and actions of wrongs or injury "disconnected with contract." (Common Law Procedure Act, 1853, s. 243, and Common Law Procedure Act, 1856, s. 97; Judica

ture Act, s. 53). The result is different accordingly, as is shown by the decisions of which, as a recent one in which they are fully referred to, may be here cited the case of Meegan v. Belfast, &c. Railway Co. 1897, 2 Ir. 590.

AMERICAN NOTES.

Actions founded upon contract may, it seems, here include claims founded upon statute; and by the Practice Act of Massachusetts (Public Statutes, c. 167, s. 1), actions for penalties are excluded from actions of contract, and are included in actions of torts, while actions under statutes to recover for money expended have usually been actions of contract. See Milford v. Com

monwealth, 144 Massachusetts, 64; Wesson v. Commonwealth, id. 60.

In Carpenter v. Manhattan Life Ins. Co., 93 New York, 552, the doctrine that a counter-claim cannot be allowed in an action for a tort was rejected, and now, it appears to be settled, under the Code Procedure in New York, that, in such action, a counter-claim arising out of a contract connected with the subject of the action may be pleaded, and that, in an action on a contract, damages arising out of a tort of the plaintiff, if the two causes of action are connected, may be interposed as a counter-claim. Thomson v. Sanders, 118 New York, 252; Ter Kuile v. Marsland, 81 Hun (N. Y.), 420.

TRADE AND TRADE-MARK.

[And see Mallan v. May; Price v. Green; Nordenfeldt v. Maxim Nordenfeldt Guns & Ammunition Co., Nos. 38, 39, & 40 of ❝ Contract," 6 R. C. 392 and notes. Thorley Cattle Food Co. v. Massam; White v. Mellin, Nos. 12 & 13 of " DEFAMATION," 9 R. C. 130 and notes. Trego v. Hunt, "GOODWILL," 12 R. C. 442 and note.]

A TRADER will only be restrained from selling goods in his own name, where the user thereof is fraudulent.

But a trader is not entitled to sell goods by a descriptive name, which in its primary meaning is a true description of the goods, if that name is likely to induce purchasers

No. 1.

Burgess v. Burgess, 3 De G. M. & G. 896, 897.

(immediate or ultimate) to believe that they are buying the goods of another trader.

Burgess v. Burgess.

8 De G. M. & G. 896-905 (s. c. 22 L. J. Ch. 675; 17 Jur. 292).

[896]

Where a person is selling an article in his own name, fraud must be shown to constitute a case for restraining him from so doing on the ground that the name is one in which another has long been selling a similar article.

Therefore, where a father had for many years exclusively sold an article under the title of "Burgess's Essence of Anchovies," the Court would not restrain his son from selling a similar article under that name, no fraud being proved.

This was a motion by way of appeal from the decision of ViceChancellor KINDERSLEY refusing an injunction to restrain the defendant, his workmen, servants, and agents, from selling or disposing of, or causing or procuring to be sold or disposed of, any sauce, essence, or composition manufactured by or for him, and described as or purporting to be or represented as being Burgess's Essence of Anchovies, and from using with or for his bottles of the said sauce, essence, or composition, or any of them, any wrapper or wrappers, having printed thereon the words " Burgess's Essence of Anchovies," or any words applicable to or descriptive of the essence of anchovies made and sold by the plaintiff, and also from using, publishing, or circulating, or causing or procuring to be used, published, or circulated, any catalogue or catalogues, list or lists, purporting that the defendant was the manufacturer of "Burgess's Essence of Anchovies," or containing any word or words representing or leading purchasers or customers to believe that the sauce, essence, or composition manu[* 897] factured and sold by the defendant was the same as that then and theretofore manufactured and sold by the plaintiff, and also from using or exhibiting any window bill, or other bill purporting that the defendant sold "Burgess's Essence of Anchovies." And also from using any bill head or invoice having thereon the words "Manufacturer of Burgess's Essence of Anchovies," or any words to such or the like purport or effect. And also from using any box or packing case, bearing thereon the

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No. 1.-Burgess v. Burgess, 3 De G. M. & G. 897, 898.

words "Burgess's Essence of Anchovies," or any words to such or the like purport or effect. And also from publishing or causing to be published any advertisement or advertisements containing the words "Burgess's Essence of Anchovies," or any words to such or the like purport or effect.

The original motion before the VICE-CHANCELLOR, besides seeking as above, sought to restrain the defendant from continuing over his shop front the words "late of 107, Strand;" and from continuing on the sides of his shop a plate with the words " Burgess's Fish Sauce Warehouse, late of 107, Strand."

The bill, and the affidavits in support of the motion, stated in substance as follows:

For many years previously to the year 1800, John Burgess, the late father of the plaintiff, carried on the trade of an Italian warehouseman, at No. 107, Strand, which embraced among other matters the making and vending of various fish sauces and other sauces. In the year 1800 the plaintiff, his only son, then twentytwo years of age, was taken into partnership by his father in the business, according to the terms of a deed of copartnership, dated the 10th of October, 1800, by which it was agreed that they should be partners in the said * business during their [* 898] joint lives in equal shares, and that upon the death of either of them, the surviving partner should be at liberty to carry on the business on his own separate account, and to continue to reside in the house and premises, paying to the legal representatives of the deceased partner the fair value of the share and interest of such partner in the stock in trade, utensils, and debts. The plaintiff and his father thenceforth carried on the trade in partnership together at No. 107, Strand, aforesaid, under the style or firm of "John Burgess & Son," down to the death of the plaintiff's father, who died in the year 1820, and left the plaintiff his sole executor and residuary legatee.

Since the death of the father the plaintiff had continued to carry on and then carried on the trade or business at No. 107, Strand, on his own sole account and for his own sole use, but under the same style of "John Burgess & Son," which had been previously used. No son of the plaintiff had at any time been admitted a partner in the trade or business, and the plaintiff was the sole proprietor of the said trade or business carried on at No. 107, Strand.