right to manufacture the article expired with it, while the name which described it became, under the facts of this case, necessarily one of description and did not designate the manufacturers. There was no other name for the article, and in order to obtain it a person would have to describe it by the words 'Rahtjen's Composition.' The words thus became public property descriptive of the article, and the right to manufacture it was open to all by the expiration of the English patent."

The

The question before Archibald, C.J., in the Quebec case above referred to has also been touched upon by the Ontario Courts. In Rubberset Co. v. Boeckh Bros. Co. Ltd., a passing-off case, it appears that the plaintiffs had United States patents for a particular process of brush-making. Under these patents they had manufactured brushes, designated as "rubberset brushes," and sold them in the United States and Canada. After the patents had expired, the plaintiffs continued to manufacture such brushes by the patented process and to describe them as "rubberset." defendants, ten or eleven years after the expiry of the United States patents, began to manufacture brushes according to the process described in the expired patents, and applied the word "rubberset" to them. It was held on appeal from the Judge at first instance, who had dismissed the action, that the plaintiffs, having a monopoly on a process, the product of which they designated as "rubberset" as applied to brushes, lost that exclusive right when the patents expired; and that as the word "rubberset" was invented to express the exact article produced by the patented process, a monopoly of its use could not be asserted after the patents covering it ran out. Hodgins, J., who delivered the judgment of the Court on appeal, followed Cellular Clothing Company, Limited v. Maxton & Murray, where Lord Justice Davey adopts the doc

4 (1919) 46 O. L. R. 11.

8 (1899) A. C. 326.

trine laid down by Fry, L.J. in Siegert v. Findlater, namely:

"If a man invents a new article, and protects it by a patent, then during the term of the patent he has, of course, a legal monopoly; but when the patent expires all the world may make the article, and if they make the article they may say that they are making the article, and for that purpose use the name which the patentee has attached to it during the time when he had the legal monopoly of the manufacture."

It is difficult to reconcile the judgment of Archibald, C.J., in the Castoria case, above referred to, with a doctrine so far-reaching in its operation as that contained in these English and American cases. At the moment of writing the question discussed is before the Exchequer Court of Canada in a case involving the validity of the trade-mark "Aspirin."

In the recent English case of Saunders v. Tucker tried before Mr. Justice McCardie in the King's Bench Division, the learned Judge made some very instructive observations on the social bearings of actions for breach of promise of marriage. According to the report of the case in the Times (Nov. 14th, 1922), he said that he never tried

"a breach of promise of marriage case with the assistance of a jury without realizing the very serious social question which such cases raised

He had long felt that a contract to marry was wholly different from a commercial bargain made in the counting-house. It carried with it, if it ended in marriage, a very great status. It was a life-long contract, and according to the great churches it was a contract which nothing but death could dissolve. The consequences of an unhappy marriage were terrible and were reflected in the number of • (1878) 7 Ch. D. 801, at p. 813.

separations granted yearly in the congested lists of the Divorce Court. The action for breach of promise was in many ways a degrading one for the woman, because she was asking a jury to assess the commercial value of the man whose affections she had lost."

Under the title "L'Avenir de notre droit civil" will be found in La Revue du Droit (Vol. I, Nos. 2 and 3) the substance of a very interesting address delivered on the 13th of May last by Mr. Justice Mignault, of the Supreme Court of Canada, before the Junior Bar Association of Quebec. The essence of the address is criticism of a growing tendency on the part of Judges in the Province of Quebec, in considering cases arising under the Civil Code of that Province, to cite and rely on decisions of the Courts administering the principles of the English law whenever there is an apparent harmony between the two systems of law. The learned writer thinks that in this way the principles of English law are quietly finding their way into Quebec law, and the distinctive quality of the latter is becoming impaired. He points to the juridical history of Louisiana and South Africa as instances where the civil law has been insidiously invaded by the English common law.

Judge Mignault also criticizes the Judicial Committee of the Privy Council because they regard the Civil Code of Quebec "comme un statut, et l'a interprété comme on interprète les statuts en Angleterre," citing, as an example of this, Lord Sumner's observation in the somewhat recent case of The Quebec Railway v. Vandry': "The statutory character of the Civil Code of Lower Canada must always be borne in mind." Judge Mignault thinks that it is incorrect to subordinate "l'interprétation logique" to "l'interprétation littérale" of the Code; and that to interpret it aright regard must be had to the traditions of the 1 (1920) A. C. 662.

C.B.R.-VOLI.-2

great juridical systems that lie behind it. Not to do this is, in his opinion, to forget the apostolic saying: "The letter killeth, but the spirit giveth life."

It is hoped that the members of the Bar throughout Canada will co-operate with the Editorial Board in the endeavour to make the contents of the REVIEW commensurate with the standard of excellence which may be expected of it. To this end many studious contributions must be sent to the Editor. We are satisfied that the Bar can respond adequately to this appeal. It may interest our readers to know that we have already secured the promise of contributions from some of the ablest legal writers in Great Britain and the United States.

The President of the Canadian Bar Association has received the following letter from the Lord Chancellor of England touching the action of the Association in establishing an official organ:

"House of Lords,

"S. W. 1

"13th December, 1922.

"DEAR SIR JAMES AIKINS,

"I am much interested to hear from you that the Canadian Bar Association proposes to publish a monthly journal to be known as the CANADIAN BAR REVIEW. I am confident that the REVIEW Will be of value, not only to the legal profession in Canada, but to all those who (like myself) take an interest in Canadian jurisprudence and in the prosperity of the Canadian Bar. I cordially wish the new publication all possible success.

"Believe me,

"Yours very truly,

(Signed) CAVE.

"The Hon. Sir J. A. M. Aikins."

LAW AS A LINK OF EMPIRE.1

BY THE RIGHT HONOURABLE LORD SHAW OF
DUNFERMLINE.

The other day I spoke to the American Bar Association, choosing as the topic of my imperfect discourse "The Widening Range of Law," and briefly surveying the different levels upon which, on a scale ever extending, jurisprudence and the fundamental principles of law are seen to operate. On the broad and plain and every-day level of private life, with rights and duties ever demanding their correlation and reconciliation by justice whose minister is lawon that higher level better realized, better organized, than ever before in history, in which arise the disputings and the deadlock of classes, in the midst of which and often in circumstances of no little public danger, legal principles have still to be evolved and appliedhere a new correlation is demanded, Liberty is to be reconciled with Order. The rights of society as a whole are to be vindicated against each and every class, and the clash of classes inter se transmuted into harmonious development. The adjuster, the reconciler, are still that same justice and those principles of law of which you and I are the ministers.

As justice and law rise and we must respect their claim to do so-to a still greater height, nations themselves must climb and wait, and wait and climb, and must gather their breath again. International law must grope about among the ruins which have been left after the explosions of lawless ambition have laid low much that generations of lawyers had endeavoured, working on lofty and commanding places, to edify into a lasting fabric.

And now today, being here in your beloved Canada, while the venue has changed, still there may be, in an

1 This article is the substance of an Address delivered by Lord Shaw at the 7th Annual Meeting of the Canadian Bar Association held at Vancouver, in August, 1922.