TRADE-MARK-PRACTICE-PETITION TO EXPUNGE JOINDER OF CLAIM FOR INFRINGEMENT.-The case of Thermogene Company, Limited v. La Compagnie Chimique des produits de France Limiteé, came before the Exchequer Court of Canada on a petition to expunge a trade-mark registered in Canadian Trade Mark Register No. 155, folio 34814, consisting of the word "Thermogene," together with certain additions, as applied to the sale of medicated wadding. The petition was filed on the 12th January, 1925, and on the 20th February, 1925, a statement in defence was filed by the owner of the mark so registered alleging that it was lawfully on the said register. On the 15th September, 1925, a summons was taken out returnable before the Registrar in Chambers, asking for an order granting leave to the petitioner to amend his petition to expunge by joining thereto a claim for infringement by respondent of petitioner's trade-mark. On the 24th September, 1925, the Registrar after hearing argument on behalf of both parties, dismissed the summons to amend on the ground that while Rule 38 of the practice of the court provides for a joinder, in trade-mark infringement actions instituted by statement of claim, of an application to have any entry in any registry of trade-marks expunged, varied or rectified, the converse was not the case; and, having regard to the maxim expressum facit cessàre tacitum, it was not open to the petitioner under the practice of the court to join a claim for infringement to his petition to expunge the mark. On appeal to Mr. Justice Audette sitting in Chambers the decision of the Registrar was affirmed, the learned judge observing that to permit the petitioner to make such an amendment would be to change the cause and nature of the action as originally framed. C. M. REMUNERATION OF OFFICER OF VOLUNTARY UNINCORPORATED ASSOCIATION. The judgment of Mowat, J., in O'Donnell v. Hellmuth, is an interesting warning to any one who undertakes to render services to a voluntary unincorporated association in the hope of reward, without carefully protecting himself by a contract with somebody capable of contracting. This was an action brought by the plaintiff to recover remuneration for his services as Organizing Secretary of the Citizens' Liberty League, which doubtless remains in the recollection of many as the organization which opposed the Ontario. Temperance Act, when the last plebiscite was taken. It was initiated at a meeting in Toronto of persons who felt indignant at the proposal of the then Government or Legislature to pass what is now the On129 O. W. N. 9. tario Temperance Act, they feeling that it was for themselves to determine what the word 'temperance' meant. At this meeting, the form of organization was provided for, and the plaintiff was chosen. as General Organizer' of the League. Nothing was said by him or any others about salary or other remuneration, although one would suppose it was intended that he would be compensated for his services. He was at a later date appointed Organizing Secretary,' but again nothing was done to provide for or determine the amount of a salary. In each capacity he was authorized to collect subscriptions, and the learned Judge appears to have no doubt but that he would have been paid if the subscriptions had been sufficient to warrant the payment of salary. In point of fact, they did not come up to the enthusiastic expectation of those interested in the League, and as he had no other financial means, the plaintiff found it necessary to claim against three of the leading officials. The learned trial Judge fails to find any contractual liability. No one League member had any interest greater than another; and the plaintiff, knowing this, should, if he wanted pay, have made a definite proposal, which, if rejected, would have allowed him to retire. from the position. Cases like Todd v. Emly, Lascelles v. Rathbon,3 and other Club cases collected in Daly's Club Law, 3rd Ed., and Wertheimer on Clubs, are held to be unlike this in principle, the main point here being that in the absence of an express contract and of any evidence from which a contract on the part of the defendants. could be implied, the action had to be dismissed. G. F. H. WHAT CONSTITUTES A TRAIN?-The decision of the Judicial Committee in the case of Oulette v. Canadian Pacific Railway Company,1 is a very interesting one, and one which is at any time liable to become of practical importance. Two engines and tenders of the respondent Company, coupled together and running backward-that is to say, with the tender of the foremost engine being pushed on ahead-ran into a lorry at a level crossing, in the City of Hull, Quebec, and two children of the appellant, who were riding on the lorry, were killed. The two main matters of fact, which were admitted as fact, were (1) That the foremost of the two engines was, besides, of course, shoving on its tender before it, pulling the hindmost engine and tender; and (2) The driver and stoker of the foremost engine 2 (1841) 8 M. & W. 505. 3 (1919) 35 T. L. R. 347. were prevented, by the tender in front of it, from seeing the lorry on the crossing until after the tender had struck it. Sub-section 34 of section 2 of The Railway Act of Canada, 1919, provides that the expression train' includes any engine, locomotive or other rolling stock, unless the context otherwise requires. By Section 310, sub-section 1, "whenever in any City, Town or Village, any train not headed by an engine is passing over or along a highway rail level, which is not adequately protected by gates or otherwise, the Company shall station on that part of the train which is then foremost a person who shall warn the persons standing on or crossing, or about to cross the track of such Railway." The question of the liability of the respondent railway company thus turned upon whether or not the two engines coupled together in manner above stated constituted a train within the meaning of Section 310, and the Law Lords of the Judicial Committee have reached the conclusion that they did, reversing the decision of the Supreme Court of Canada.2 The corresponding section of the old Railway Act provided that "Whenever in any City, Town or Village, any train is passing over or along a highway rail level and, not headed by an engine, moving forward in the ordinary manner, the Company shall station on that part of the train, or on the tender if that is in front, which is then foremost, a person who shall warn persons standing on, or crossing, or about to cross the track of such railway." It will be noted that the italicized words have been omitted from the present section, and this fact was looked upon as of importance in the Canadian Courts. Their Lordships reached the conclusion, however, that the omission of these words simply renders the section less cumbersome and does not alter its intention, in this respect agreeing with Mr. Justice Idington in the Supreme Court of Canada. DISCOVERY PLACE FOR EXAMINATION OF OFFICER OF COMPANY RESIDING OUTSIDE OF JURISDICTION.-Where a person, whom it is desired to have examined for discovery, resides outside the jurisdiction the Ontario Rule provides that "the Court may order the examination to be taken at such place and in such manner as may seem just and convenient." In the recent case of Smith v. Gill & Fortune Lumber Company, the Court directed an officer of the Ontario Company who resided in the United States to attend at the City of 2 (1924), S. C. R. 426. Belleville for examination, the learned Judge being of opinion that the Master (who had made the order) had properly exercised his discretion in deciding what was "just and convenient." The question is always decided upon what is "just and convenient." In Lick v. Rivers, the plaintiff resided in Cleveland, Ohio. The defendant resided in the County of Oxford, Ontario, where the cause of action arose. A motion was made to have the plaintiff examined at Woodstock, Ontario, but the local Judge directed that the plaintiff be examined at Windsor, and it was held on appeal he had properly exercised his discretion. In Duell v. Oxford Knitting Co.,3 the examination was ordered (on appeal) to be held in New York, no special circumstances being suggested nor any sort of reason given for putting the plaintiff to the inconvenience and loss to which the order would subject him without any substantial benefit to the defendant. The principle of the above case seems to be that it is necessary to consult the plaintiff's convenience, but Mr. Justice Middleton in Hamilton v. Hamilton, discusses this point with such clearness that his remarks are given in full as follows: "In that case the learned Chief Justice of the Common Pleas undoubtedly places the matter upon this footing, indicating that the right to examine a plaintiff for discovery is an indulgence granted to a defendant, and therefore the defendant must always, in the absence of special circumstances, consult the plaintiff's wishes and conveni ence. According to the settled practice for many years, this theory has found no countenance. The view has rather been taken that the plaintiff, coming from abroad to enforce rights through the machinery of our Courts, must be taken to submit to the inconvenience ordinarily incident to litigation, and that as the price of this privilege he ought to come within our jurisdiction for the purpose of preliminary examination as well as for the purpose of attending upon the hearing, the convenience of the defendant being rather consulted than the convenience of the plaintiff. It has also been demonstrated that an examination for discovery can be held more satisfactorily before an experienced officer of our Courts, who will be able to rule upon any questions that may arise, in accordance with our law and practice. The practice of examination for discovery is not known or understood in most of the States of the Union. Any attempt to examine where the examination is taken before an examiner not familiar with our practice, and where 2 (1901), 1 O. L. R. 57. 3 42 O L. R. 408. 47 O. L. R. 359 at p. 360. the party examined is represented by American counsel, generally results in defeating the purpose of the examination, and in pages of stipulations and objections unintelligible and unmeaning to those not used to the American rules of evidence and practice." In Modern Cloak Co. v. Bruce Manufacturing Co., it is stated that "the power of the Judge or officer making the order is merely to consider what is just and convenient in the case before him; and, no two cases being quite alike, no finding in any one case is binding in any other; though every case may afford some aid; may throw more or less light upon the questions involved in a later case. The exercise of discretion in such cases as these must always depend upon the circumstances of each particular case." Hamilton v. Hamilton and Modern Cloak Co. (supra) were thought to be at variance, but Mr. Justice Ferguson in delivering the judgment of the Court of Appeal in Sweeny v. Manufacturers' Holding Corporation, states that "both learned Judges were of the opinion that the place and manner of the examination were matters to be determined by the Court, having regard to what was just and convenient, not for one party, but for both parties, and that what was just and convenient depended solely on the circumstances adduced in evidence, and not to any extent on a prima facie right of either party." These cases show the attitude which the Courts adopt in deciding motions for Examination for Discovery and what is "just and convenient" must be decided upon the circumstances adduced for the consideration of the Court in each particular case. B. B. J. ESTOPPEL A HARD CASE-THE TAXPAYER BITTEN.-Riches v. The City of Moose Jaw,1 is one of those cases that may very well be excellent law, and yet leave the plain person with a sense of griev ance. Mr. Riches, presumably a blameless citizen of Moose Jaw, was assessed on two pieces of real property, and also on his business tax. As the year was ending, Riches rang up the City Hall and said, in effect, "How about that business tax of mine? You have got it all wrong; send some one round to measure and put your claim right, if you want to be paid this year." Hotfooted in response came Blair chief clerk of the assessor of the city. Blair re-measured the premises and made his records, and, before going off with them for confirma 548 O. L. R. 469, at p. 471. 24 O. W. N. 451. 1 1925, 2 W. W. R. 99; reversed in 1925, 3 W. W. R. 127. |