have affirmed the decision of Eve, J. (1917) 1 Ch. 527 (noted ante p. 267). TRADE NAME SIMILARITY-PROBABILITY OF CONFUSION-IN Ewing v. Buttercup Margarine Co. (1917) 2 Ch. 1. The plaintiff carried on a large provision business, and had 150 shops where he sold butter, margarine, eggs, tea, cream, and condensed milk. This business was carried on under the name of the Buttercup Dairy Company. The business was well known to the buying public, and his business was popularly known as the Buttercup Company or the Buttercup. In 1916 the defendant company was incorporated as the Buttercup Margarine Co. The action was brought for an injunction restraining the defendants from using the name "Buttercup" or any other name colourably resembling the plaintiffs' trade name. Astbury, J., who tried the action, granted the injunction, and his judgment was affirmed by the Court of Appeal (Lord Cozens-Hardy, M.R., and Bankes, and Warrington, L.JJ.) WILL-ANNUITY-CHARGE ON REALTY-PERPETUAL ANNU.TYGENERAL POWER OF APPOINTMENT OF ANNUITY. Townsend v. Acroft (1917) 2 Ch. 14. In this case a will was in question whereby a testator gave his daughter an annuity of £30 for her life, with a general power of leaving it by her will. The annuity was charged on the testator's realty. The daughter exercised the power of appointment by giving the annuity to her daughter absolutely. The question was whether the daughter took a perpetual annuity or whether it was merely for her own life. Eve, J., held that the annuity was perpetual. CO-OWNERSHIP-ASSOCIATION TO SECURE PARTICULAR BENEFITS TO MEMBERS-OBJECTS OF ASSOCIATION SATISFIED SURPLUS Re Customs Officers' Guarantee Fund, Robson v. AttorneyGeneral (1917) 2 Ch. 18. The point discussed in this case is the ownership of certain surplus funds of an association. The association in question was formed of persons engaged as Excise Officers, to provide the necessary guarantee required to be given by them. for the due performance of their official duties. The continuance of the association having became no longer necessary, the question was, who was entitled to the surplus funds of the association which were vested in trustees. They were claimed by the existing, and also by past members of the association, and also by the Crown as being in, the nature of bona vacantia. Astbury, J., who heard the matter, came to the conclusion that the members of the association existing at the time the purposes of the trust came to an end were alone entitled to participate in the surplus in proportion to the amounts respectively contributed by them, and that neither past members, nor the Crown, had any interest in the fund. COMPANY-MEETING-PROXIES-APPOINTMENT OF PROXIES TO BE LODGED TWO DAYS BEFORE MEETING-ADJOURNMENT OF MEETING-SUBSEQUENT PROXIES. LODGING OF APPOINTMENTS OF McLaren v. Thomson (1917) 2 Ch. 41. By the articles of association of a limited company it was provided that members might vote by proxy, but that the appointment of a proxy must be deposited at the registered office of the company not less than two clear days before the day for holding the meeting at which the appointee proposed to vote. The question in this case was whether appointments of proxies deposited after the date of a meeting, but before the day to which it was adjourned, were deposited in time to enable the appointees to vote at the adjourned meeting. Astbury, J., on a motion for an injunction, held that the appointments lodged after the meeting were invalid, and were not available at the adjourned meeting, which was in law merely a continuation of the original meeting. VENDOR AND PURCHASER-PURCHASE OF TWO LOTS-MISREPRESENTATION AS TO ONE OF TWO LOTS PURCHASED RESCISSION -SPECIFIC PERFORMANCE. Holliday v. Lockwood (1917) 2 Ch. 47. In this case the plaintiff had purchased at auction lots 2 and 3. As to lot 3 the vendor made an innocent misrepresentation, which entitled the plaintiff to a rescission of the contract as to that lot. Astbury, J., also found as a fact that, but for the misrepresentation as to lot 3, the plaintiff would not have bought lot 2. The plaintiff claimed a rescission of the contract as to lot 2, and a refund of the deposit, and the defendant counter-claimed for specific performance of the contract as to lot 2, or damages, as to this lot there was no misrepresentation. In these circumstances Astbury, J., held that the plaintiff was not entitled to rescission as to lot 2, because it was not shown that it was known to both parties at the time of the sale, nor were circumstances shown from which the Court could properly infer that the two transactions were, to the knowledge of both parties, interdependent. But though he held that the contract as to lot 2 could not be rescinded, yet as he was satisfied that the plaintiff would not have purchased that lot without the other, he refused to grant specific performance. In the result, as it did not appear that the defendant had suffered any damages, both the action and counter-claim were dismissed without costs the plaintiff losing his £200 deposit on lot 2. SETTLEMENT SPECIAL POWER OF APPOINTMENT-WILL-GENERAL BEQUEST OF PROPERTY UPON TRUST FOR OBJECTS OF OF POWER-GENERAL REFERENCE TO POWERS CHARGE In re Mackenzie, Thornton v. Huddleston (1917) 2 Ch. 58. The principal question in this case was whether a power of appointment had been effectively exercised. A married woman, having a power by deed or will to appoint certain settled trust funds in favour of her issue, made a will whereby she did "give devise and bequeath all my property of any description including any property over which I have a power of appointment" unto trustees, upon trust for sale and conversion, and thereout to pay her debts, and to hold the residue upon trust for her daughter for life with remainder to her daughter's children at twenty-one, or marriage. The testatrix had no property of her own. The daughter was her only issue. An application by originating summons was made by the trustees of the settled funds to determine whether the power was well executed and also whether they ought to hand over the fund to the trustees of the will of the married woman. On behalf of the daughter who would be entitled to the fund absolutely in default of appointment it was contended that the will was ineffectual as an exercise of the power, because it was a gift of "my property" and the fund subject to the power was not her property; and secondly because a trust for sale or conversion was created, thirdly because the testatrix provided a narrower range of investments than that contained in the instrument creating the power; and fourthly she directed payment of her debts and funeral expenses. These facts it was claimed indicated that notwithstanding the reference to the power in the will, the testatrix did not intend to execute the special power. Neville, J., who heard the case, held that the power had been well executed, though made in favour of trustees for the objects of the power, but that the trust for payment of debts out of the fund was ineffectual. He also held that the trustees, in whose hands the appointed fund was, ought to retain the fund subject to the appointment, and ought not to hand it over to the trustees of the will of the married woman. SOLICITOR-TRUSTEE-CONTRACT FOR SALE OF TRUST PROPERTY -SOLICITOR ACTING FOR VENDOR AND PURCHASER-FIDUCIARY RELATIONSHIP-NON-DISCLOSURE TO CLIENT OF KNOWLEDGE AS TO VALUE-BRIBE GIVEN BY PURCHASER TO VENDOR'S AGENT-WAIVER-RESCISSION. Moody v. Cox (1917) 2 Ch. 71. This was an action to set aside a contract entered into by the plaintiff with the defendants for the purchase of a house in the following circumstances: The defendants Cox and Hatt were trustees of the house in question. Hatt was a solicitor, and Cox was his managing clerk. Throughout the transaction Hatt (through Cox) acted as the plaintiff's solicitor. Cox had certain valuations of the property, previously obtained by Hatt, showing that the property was of much less value than the price the plaintiff was to give; these valuations Cox failed to disclose to the plaintiff. The plaintiff knew that the defendants were trustees, and in the course of the transaction he offered, and Cox accepted, a bribe. The defendants set up this fact, but claimed specific performance of the contract. Younger J., who tried the action, held that Hatt was bound to disclose to the plaintiff all material facts relating to the matter, and that he was not relieved of that obligation by the fact that he owed a conflicting duty to his cestuis que trust. But he held that the defendants, by claiming specific performance of the contract, had waived their right to repudiate it on the ground of the bribe, and, therefore, the plaintiff was not deprived of his equitable right to rescission on the ground of non-disclosure by his solicitor of material facts, and with this conclusion the Court of Appeal (Lord Cozens-Hardy, M.R., and Warrington, and Scrutton, L.JJ.) agreed. DEFENCE OF REALM-ORDER IN COUNCIL AUTHORIZING INTERN- By the Consolidated Defence (see Dom. Stat. 1915, p. 37); which Act is operative in Canada, as in all other British Dominions, the King in council is empowered to make regulations for securing the public safety. In assumed pursuance of the Act an order in council was passed empowering the Secretary of State to order the internment of any person "of hostile origin or associations" where, on the recommendation of a competent naval or military authority, it appears to him expedient for securing the public safety, or defence of the realm: Reg. 14 B. Under this regulation the Secretary of State ordered the internment of one Arthur Zadig, a naturalized British subject of German birth and parentage. Zadig thereupon applied for a writ of habeas corpus, and on the hearing of the application before a Divisional Court (Lord Reading, C. J., and Lawrence, Rowlatt and Atkin, JJ.), the motion was refused, and on appeal to the Court of Appeal, (Eady, Pickford and Bankes, L.JJ.), the decision was affirmed. From this decision an appeal was had to the House of Lords (Lord Finlay, L. C., and Lords Dunedin, Atkinson, Shaw, and Wrenbury), and the decision has been affirmed, Lord Shaw dissenting. The contention of the appellant was that the regulation was ultra vires and not authorized by the statute, and an invasion of the liberty of the subject, but this argument did not prevail, except with Lord Shaw, who delivered what might almost be called a political harangue on what he conceives to be a gross attack upon the freedom of the people, and a revival of the methods of the Star Chamber. DEFAMATION-LIBEL-PRIVILEGED COMMUNICATION EXCESS OF PRIVILEGE. Adam v. Ward (1917) A.C. 309. This was an appeal to the House of Lords (Lord Finlay, L. C., and Lords Loreburn, Dunedin, Atkinson, and Shaw), from the judgment of the Court of Appeal (Buckley, Pickford, and Bankes, L.JJ.) The action was for libel in the following circumstances: The plaintiff, who was formerly an officer in a cavalry regiment, and was subsequently elected a member of Parliament, in a speech in the House of Commons charged that the General commanding the brigade, of which the plaintiff's regiment had formed part, had sent confidential reports to Headquarters on officers under his command, containing wilful and deliberate misstatements. The General in question referred the matter to the Army Council, of which the defendant was secretary, and he, by its direction, wrote a letter to the General vindicating him against the charge, and containing defamatory statements about the plaintiff, and also sent a copy |
