Disputed Decisions, No. XIV.

(as if the list were not comprehensive enough!) toutes les causes exceptées par les lois."

How many more there may happen to be I am not prepared to say; and I think it may fairly be considered that Conciliation is a perfect farce, since the nation in which it has been principally tried has seen the necessity of exempting so many matters from its operation; and I should have thought, had any body but the Chancellor attempted the introduction of such an absurdity into this country, that he had been a fitter subject for the "protection," than the "custody," of the Great Seal. J. C.

23

biens, sur les tutelles et curatelles; et enfin | manufacturer from sending to Canterbury watches of a similar pattern, and with the word "warranted" stamped upon them? and must the good people of Canterbury be content to take "warranted" watches from The word "warranthim only for ever? ed" is the common property of all manufacturers, and any of them has a right to affix it to his wares; that is to say, every man has a right to use the common and distinguishing mark or word which imports an engagement by him that his work shall properly answer its ostensible purpose. That word is the word "warranted," but then the defendants put it in Turkish, and in Turkish characters. Why, Sir, in what other word or character would any man, knowing the watch was going to Turkey, suggest its being put? If he wished to conceal its meaning from the Turks, he would probably have put it in English, or in any character and language which the Turk could neither read nor understand.

DISPUTED DECISIONS.

No. XIV.

To the Editor of the Legal Observer.

Sir,

INJUNCTION,-PIRACY.

The fallacy I take to be in not having taken into account the maker's name in both cases. I gather from your report (p. 496) that the plaintiff's name, as well as the word "Cesendede," was stamped upon his watches; and certainly, if the defendants had taken the unwarranted liberty to put his name upon their In your Number for April 20th, there ap- manufactures, they would have deserved somepears to be a very extraordinary decision in thing more than an injunction; but it does not the case of Gout v. Aleplogphu Parkinson and appear that they did any such thing. How then others, (vol. v. p. 495, 496), in which, it seems can it be said, that a watch warranted under from your report, that the plaintiff having long the names of the defendants, or under no manufactured watches for the markets of Con- names at all, could be a warrant under the stantinople and other places in the Levant, dis- name of the plaintiff. or could produce any tinguished by the name (I suppose the maker's effect upon the sale of the plaintiff's watches, name,) and the Turkish word Cesendede, in unless so far as competition in trade and a Turkish characters, meaning "warranted,) an greater supply of the article, may reduce the injunction was granted to prevent the defend-profit. The mere word "warranted" is valuants from manufacturing similar watches with the same word impressed upon them.

Now, Sir, as to the resemblance in the pattern of the watches, I know nothing in the law of this land, except a patent, to prevent any person making a machine or instrument, as exactly resembling one made by another person as he can. The similarity in the patterns of watches is notorious. One case-maker, for instance, and one dial-maker, often supplies dozens of watchmakers with those articles, and knowing, as they will do, the different patterns approved in different foreign countries, they exercise their taste and skill accordingly. To China, watches are exported in pairs. A great man there wears two, and puts their accuracy to the test by comparing each with the other. I take it, that to say the defendant shall not manufacture watcher for the Levant of a pattern similar to those of the plaintiff, is virtually to grant to the plaintiff a patent (by an injunction) for that purpose.

Still less reason does there appear to be for the injunction on the ground of the word "warranted" being used by the defendants. Suppose a manufacturer at Coventry had long supplied a distant town, say Canterbury, with watches with the word "warranted" stamped upon them-is that se prevent every other

less, without a responsible name to vouch for its worth.

The decision is, to my mind, against public policy, and in restraint of trade, and tends to prevent the manufacture and export of good articles, because the Talismanic mark "Česen dede" may not be placed upon them. Turks may not know it, but men of science, both in England and abroad know, that the superior watches and chronometers of the defendants Parkinson and Frodsham, are celebrated for their extraordinary power and accuracy, alike under the intense frost of the polar circle and under the burning sun of the torrid zone. Were I in the place of the defendants, I would make watches of whatever pattern and construction I pleased, (infringing upon no man's patent). I would put the word "Cesendede" upon them, and my name; and if necessary, I would hear what the highest tribunal in the land has to object to it. PESENDEDE.

Attorneys to be admitted in Trinity Term.

ATTORNEYS TO BE ADMITTED,
Trinity Term, 1833.

Ayrton, Alfred, 33, Devonshire street, Queen Edward Wyatt, St. Asaph Flintshire.
Square.

Barker, Thomas Richard, Middlewich, Ches- Henry John Barker, same place, assigned to

Barney, John, the younger, Great Ormond John Barney the elder, Southampton; as
Street.
signed to William Richardson, Bedford
Row.

Bourdillon, James, the younger, Great Win- James Weston, Fenchurch Street; assigned

Cowdell, William, the younger, 4, Raymond William Cowdell, the elder, Hinckley, Leices Buildings.

Attorneys to be admitted in Trinity Term.

Cowley, Philip, the younger, Watford, Hert- Philip Cowley, the elder, same place.

John Richardson, Manchester; assigned to
Samuel Kay, Manchester.

Cruickshank, Robert William, 50, Great Co- Robert Cruickshank, Gosport; assigned to ram Street. John Ellis Clowes, Temple.

Daintry, George Smith, 3, Lincoln's Inn New Glynn Grylls, Helston, Cornwall; assigned to Square.

Hancock, Jonathan, 8, Great Castle Street,
Regent Street.

Hancock, John, No. 12, Compton Street East,
Middlesex.

Handscomb, Edward, Brecon, South Wales.

Hughes, Thomas, Devonshire Street, Maryle- Robert Browne, Margaret Street, deceased;

Johnson, George, the younger, King's Bench George Johnson, the elder, same place.

Long, Lucius, Sutton Verry, near Warminster, Samuel Walter Long, Sturminster, Newton, Wiltshire.

(To be continued.),

As to a Replevin on a Distress for Poor Rates.

27

AS TO REPLEVIN LYING ON A DIS- | rate or assessment, or in the warrant of distress TRESS FOR POOR RATES.

thereupon; nor should the distrainer be deemed a trespasser ab initio on account of any subsequent irregularity; but the party aggrieved should only recover satisfaction for the special damage, in an action of trespass or on the case, at the plaintiff's election." Notwithstanding this statute, it is stated by Mr. Paley, in his book on Convictions, p. 181," that the replevin is held to lie upon the express words of the 43 Eliz., upon which the rate is founded." And as the 17 G. 2. does not take away any pre-existing remedy, it is submitted, that upon the sound construction of both statutes, that of replevin, as given by the 43 Eliz., still remains, concurrently with an appeal to the sessions.

THE sixth section of the 43 Eliz. c. 2. provides, "that if any person shall find himself aggrieved with any tax or other act done by the churchwardens and other persons, or by the said justices of the peace, that then it shall be lawful for the justices of the peace, at their general quarter sessions, to take such order therein as to them shall be thought convenient, and the same to conclude and bind all the said parties." The 13th provides, "that if any person shall refuse or neglect to pay any such portion of money so taxed, it shall be lawful for the said churchwardens and constables, or in their default for any justice of peace of the It is further said, that a distress under the said limit, to levy the same by distress und sale, authority of a justice's warrant being in the rendering to the party the overplus." And nature of an execution, the goods are irreplethe 19th, "that if any action of trespass or visable; and Bradshaw's case, 6 Bac. Abridg. other suit shall be brought against any for 55, 8vo. ed., is referred to in the note to Wiltaking of any distress by virtue of this act, the les's Rep. 673, as deciding, "that where an defendants shall and may either plead not act of parliament orders a distress and sale of guilty, or otherwise make avoury, cognizance, goods, it is in the nature of an execution, and or justification, alleging that the said distress replevin does not lie." Admitting this to be was done by authority of this act; to which correct, as a general proposition in all cases the plaintiff shall be permitted to reply that the where a contrary intention does not appear, it said defendant did take the said distress of his is submitted it has no application in the present own wrong; whereupon the issue shall be case; as it is clear, from the 13th sect. of the joined, to be tried by verdict of twelve men 43 Eliz., that the rate might be levied by disand not otherwise, as is accustomed in other tress and sale: yet so far is that act from personal actions; and upon the trial of that making such a distress conclusive, that it exissue the whole matter to be given on both pressly points out the mode of defence and of parties in evidence, according to the very truth trial which is to be pursued in the case of a of the same." It is said, however, that the replevy. The two sections are accumulative, 17 G. 2. c. 38. extinguishes this remedy; the and may therefore stand together, and have a 7th section enacting, "that for the more ef- concurrent effect. This principle is shewn in fectual levying money assessed for the relief of 1 Black. Com. 89, where it is said, "that if by the poor, the goods of any person assessed and a former law an offence be indictable at the refusing to pay may be levied by distress, not quarter sessions, and a latter law makes the only in the place for which such assessment offence indictable at the assizes, here the juriswas made, but in any other within the same diction of the sessions is not taken away, but county; and if sufficient distress cannot be both have a concurrent jurisdiction, and the found within the said county, on oath made offender may be tried at either." And Rex v. thereof before some justice of any other coun-Robinson, 1 Bott's Poor Laws, 381, pl. 446, is ty, such goods may be levied in any other coun-in point, to shew that the authority given to ty; and if any person shall find himself ag-justices to grant a warrant of distress, does not grieved by such distress as aforesaid, he shall take away the common mode of proceeding by and may appeal to the next sessions for the indictment for disobedience to the act of parCounty where such assessment was made; and liament. And it appeared, from Ex parte the justices there were thereby required to hear Lewis, in re Aaron, Jan. 1832, that the Court of and finally determine the same." The only Review had a concurrent jurisdiction with the object, therefore, of this section, appears to Chancellor; and from Hodgson v. Murray, 2 have been to authorize a distress out of the Sim. 515, that a court of equity has a concurcounty, as well as out of the place, for which rent jurisdiction with courts of law and in the assessment was made, and binding an ap- Burr. Sett. Ca. 64, Lord Hardwicke said, peal in such cases to the next sessions. The "that it was a thing very much to be censured 8th section, however, in words, is an express and discouraged, when an inferior jurisdiction authority that an appeal was not the only re- endeavours to preclude the parties from applymedy, but was intended to protect those ing to a superior jurisdiction:" and in Rogers against whom any action might be brought; v. Broderip, the Court said, "the additional for it states, that "to prevent all vexatious protection given by one act does not take away actions, it was enacted, that where any distress the protection of another." Besides which, should be made for any sum justly due, the Ellenborough, Lord C. J., in Fletcher v. Wildistress itself should not be deemed to be un-kins, 6 East, 287, where replevin was held not lawful, nor the party a trespasser, on account of any defect or want of form in the warrant for the appointment of such overseer, or in the

to be within the 24 G. 2. c. 44. § 6, said, "the stat. 43 Eliz. c. 2, which is the foundation of the poors rate, considers replevin as a procced