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KNOTT 21. MORGAN

a gsg~ nt.

subsequent interest was to be computed upon the principal only. Bruere v. Wharton had appeared very recently, but, in point of date, was considerably prior to the decision in Whatton v. Cradock. THE MASTER OF THE ROLLS[Lord Langdale]. On bills of foreclosure, when the mortgagor asked to enlarge the time appointed for payment, and the Court thought proper to grant thc application, the practice formerly was not to order any immediate payment, but to order subsequent interest to be computed on the aggregate amount of principal, interest, and costs already reported. For many years past, however, the practice has been to enlarge the time only on the terms of first paying the interest and costs already reported ; and these being paid, subsequent interest is to be computed on the principal only, that alone remaiuing unpaid. ilfmkhcnue v. The Cmpwution o f Bedford (17 Ves. 380), and Edwards v. Citnlife (1 Mad. 287), do not appear to have been referred to in the case cited. If, for any special reihson, the Court should think fit to enlarge the time without ordering any immediate payment, I conceive that it would now be proper to order the subsequent interest to be computed on the aggregate amount of principal, interest, and costs before computed. The present case, however, does not arise on a bill of foreclosure ; it is not the case of a mortgagor asking for delay, but of a mortgagee asking for payment in an administration suit in which the mortgaged estate has been sold; and, after the inquiries which I made as to the practice in such cases, when Whatton v. Cradock was under my consideration, I think that the direction there given was right, and that, in this case, the direction must be to compute subsequent interest on the principal only.

[213] KNOTT w. MORGAN. July 27, August 10, 1836.

[See Raqgctt v. Fi.ndlatsr, 1873, L. R. 17 Eq. 40.1 Injunction granted to restrain the Defendant from running an omnibus having upon it such names, words, and devices as to form a colourable imitation of the words, names, and devices on the omnibuses of the Plaintiffs. An ex parte injunction was obtained on the 27th of July, restraining the Defendant, Robert Morgan, his agents and servants, from running, or in any manner using or causing to be used, for the conveyance of passengers, his omnibus in the bill mentioned, with the names London Conveyance and Original Conveyance for Company, or either of such names painted, stamped, printed, or written thereon, or in any manner affixed thereto ; arid also from running, or in any manner using or causing to be used, for the conveyance of passengers, any omnibus, carriage, or vehicle having the names Conveyance Conipany, and London Conveyance Company, or either of such names, or any colourable imitation of such names, or either of them painted, stamped, printed, or written thereon, or in any manner afixed thereto. [214] The bill was filed by four of the proprietors of the London Conveyance Company, on behalf of themselves and the other proprietors ; and it stated that the company was established under a deed, which was set forth in the bill, for the purpose of running omnibuses between Paddington and the Bank ; that their omnibuses were of a novel and superior construction ; and that the Defendant, with the view and design of fraudulently procuring the custom of persons who were in the habit of using the omnibuses of the Plaintiffs, began to run between Paddington and the Bank an omnibus, on which were painted the words, Coiiveyance Company and London Conveyance Company, in such characters and parts of the omnibus as exactly to resemble the same words on the omnibuses of the Plaintiffs ; that a star and garter were, in like manner, painted on the omnibus of the Defendant, so as exactly to resemble the same symbol on the omnibuses of the Plaintiffs; and that the green livery and gold hat-bands, by which the Plaintiffs distinguished the coachmen and conductors of their omnibuses, were in like manner imitated by the Defendant. The bill further stated, that the Plaintiffs served a notice upon the Defendant, intimating that an injunction would be applied for, if the Defendant continued to use the title and insignia by which the omnibuses of the Plaintiffs were

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distinguished ; and that, after such notice, the Defendant obliterated from the back a f his omnibus the word Company, and painted on each side of his omnibus over the words I Conveyance Company, the word I Original, and between the words Conveyance and Company the word f o r in very small and invisible characters, so that there were then painted on the back of the Defendants omiiibus, the words London Conveyance, and on each side, the words Original Conveyance for Company. The bill stated that the coachmen and [216] conductors employed by the Defendant continued to wear the same livery; and i t charged that such colourable imitation of the name and title of the London Conveyance Company was a fraud upon the Plaintiffs and the public ; and it prayed an injunction. August 10. A motion was now made to dissolve the injunction. Mr. Kindwstey and Mr. Bird, in supportf of the motion. The first round, upon which we contend that the order for this injunction cannot be sustainet is, that the Plaintiffs have not complied with the requisitions of the Acts of Parliament, passed for regulating hackney and stage carriages, arid are, therefore, riot entitled to sue. By the eleventh section of the 1 & 2 W. 4, c. 32, which is an Act to amend the laws relating to hackney oarriages, and to place the collection of duties on hackney carriages under the Commissioners of Stamps, i t is provided that a requisition for a licenceshalk be made by the proprietor, or one of the proprietors of the hackney carriage in respect of which the licence shall be applied for, and that in such requisition there shall be specified the Christian name and surname, and place of abode, of every person who should be a proprietor; and the twelfth section enacts that in every licence granted there shall be the like specification. The ninth and eleventh sections of the 2 C9c 3 \V. 4, c. 120, contain exactly the same provisiotis in respect to stage carriages. It is admitted, upon the bill, that there are 100 proprietors, and it is not alleged that the provisions of the Act have been c o ~ p ~ i e with. d The four Plaintiffa are, in point of fact, the only proprietors whose names are specified in their licence. This is a fatal objection to the suit, upon the principle that the Court will not give relief to a [216] party who has not complied with the requisitions of an h o t of Parliament, which are in the nature of a condition precedent to his assuming the character in which he sues. Thus, in Harmer v. Wdstmacott (6 Sim. 284), the Coiirt refused to relieve the assignees of a party against a fraudulent transfer of his on the ground that that party had himself i ~ ~ f ~ the i n g ~ ~ n t ~ in ra ~ newspper, ~ t provisions o the Act, which requires the true names of the proprietors of a newspaper to be delivered to the Commissioners of S6mps. The same principle i s recognised in cases which have been determined a t law. Bensley v. BignoW (8 Taunt. I42), Uarchamt Y. Evum ( 5 B. cP: Ald. 335), Stepheas I-.Mobinson (2 Cr. C9c Jer. 209). If this objection he good, it is immaterial whether the Defeiidatit has, as is alleged, fraudulently endeavoured, by a colourable imitation of the title arid insignia of the degrive them of their i~gitimateprofits. But there is no ground for ~ l a i ~ i to ~ s , that dlegation. The P l a i ~ t i have ~ s no right to appropriate to themselves the title o f London Conveyance Conipany ; still less can they claim a monopoly in the use o f the words Conveyance Company, which is a distinct title from that which they assume ia the deed. In the bill they say their profits have been diminished by the conduct of the Defendant; but in their aEdavit they onIy swear that thcir profits have been affected, m d their profits may, i n fact, have been increased by the comFe~tion. The Court will not favour ap~licationsin restraint of trade, the efFect of granting which would be to deprive the public of the benefit arising from competition. In Bkrnehard v. Hill (2 Atk. 284), Lord Hardwicke said he did not know any inabnce of granting an injunction to restrain one trader @ 1 7 ] from using the same mark with another, and he thought it would be of mischievous consequence to do it. Arid in Smith v. Fromont (2 Swanst. 333), Lord Eldon, after mentioning the only instance which he recolIected of an application to the Court to restrain the the dignity driving of coaches, said he had some doubt whether he was not degra(~ing o f the Court by interfering. Mr. Pemberton arid Mr. Turner, contrii. The eleventh section oE the Act, relating t o stage carriages, which is alone applicable to the present case, and which is relied upon on the other side, requires the particulars therein enumerated to be specified it1 the licence, or such of them as the Comniissioners shall think fit; so that the Commissioners have a discretion to dispense with the specification of the names of

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KNOTT U. XORGAW

KEEN p18-

all the proprietors ; and, in this ~nstance,they have exercised that discretioii b y granting a licence in which the names of four of the pro~rietors only are specified. But, even if the Comm~ssioRershad no such discretion, there is no ground for t h e objection, arid the case of Harmer v. Yestmacott has no application. The distinction is this-that, where an Act contains a provision which relates merely to the regulation of the revenue, and imposes a penalty for the breach of it, such provision creates no. disability, and has no operation beyond the liability to pay the penalty if the regulation is infringed. But where the Act contains a regulation, which has for its object the protection of the public, and the infringement of which is against the policy o f the law, the non-compliance with that regulation will disqualify a party from suing, in a charwter which he has not, in point of law, acquired. The provision in the Act of Parliament, [218] requiring the insertion of the true names of the proprietors of a newspaper in the affidavit delivered to the Commissioners of Stamps, is a provision f the public, and i t was 0x1 account of the violation of thnt made for the protection o rovision that relief was refused in ~a~~~~~v. ~ ~ ~ ~ [No ~ ~relief, a ~ said o the t ~ that can he given, in a Court of Justice, to those who shew ~ i c e - ~ h ~ n c ein ~~ o ~case, , that they thought proper to disappoint the policy of the law, and to do that which the policy of the law requires should not be done. In this case the specification of the names of all the proprietors is a mere fiscat regulation, for the non-compliance with which a penalty is imposed; and the Act, moreover, contains an express provision that no person shall sue for the penalty except under the authority of the Commissioners. The Copyright Act (8 Ann. e. 19) requires an entry of the work, previous to publication, a t Stationers Hall ; yet it has been held that the neglect to enter the work at Stationers Hall does not disable an author, whose book has been pirated, from maintaining an action for damages; BccLfurcl v. Hood (7 T. E. 6 2 0 ) . As to the merits, it is scarcely attempted to be denied that the Defendant has pirated the title, liveries and decorations of the Plaintiffs ; arid the variation which the Defendant made in some of these. particulara, after the notice with which he was served, strengthen^ instead of alteriiig the case o f fraud which is made by the Plaintiffs. The law has been settled, from the year-books downwards, that a man. has no right to trade under false colours, aud to sell his goods as anothers. Mr. Kindersley, in reply. [z19] THEMASTEROF THE ROLLS [Lord Larigdale]. The first question is, whether the Plaintiffs are entitled to sue ; and I think that, iri the absence of any evidence to the coiitrary, I must presume that the Commissioners of Stamps, in whom the Act of Parlkment has vested the power of licerising the proprietors of stage carriages, have granted to the Plaintiffs a proper licence, and that the Plaintiffs have, consequently, a right to sue. The onlv other question is, whether the Defendant fraudulently imitated the title and insign&, used i?p the Plaintiffa for the purpose of injuriug t6em in their trade; and, upon the affidavits and evidence before me, I have not the least doubt that the Defendant did intend to induce the public to believe that the ornnihus which he. j ~ ecarriages of the P ~ ~ i ~ i t i f was, f s , in fact, painted snd appointed, so as to r e s ~ m ~the an amnibus beloIigiti~to the PIai~Itiffsand the other p~oprietorsof the London Conveyance Company. It is not to be said that the Plaintif% have any exclusive right to the words < Conveyance Compar~y, or London Conveyance Company, or any other words; but they have a right to call upon t h i s Court to restrain the Defendant from fraudulently using precisely the same words arid devices which they have taken for the purpose of distinguishing their property, and thereby depriving them of the fair profits of their business by attracting custom on the false representation that carriages, really the Defendants, belorig to, artcl are under the management of, the Plaintiffs. I am not satisfied that the iiijuriction has been drawn up exactly in the worcls in which it ought to have hean framed. Let the order, dated the 27th day of July last, be varied, therefore, so thitt the injunction niay be Liwardetl to restrain the DeEenclant, Rottert Morgan, his servatits m c I ageitts, from running, or i i t [220] atiy manner using or eausiiig to be used, for the cottveyance of psssengers, his or any other ~ i ~ ~ r j jhavirtg ~~i s, painted, stamped, prititecl, omrribus in the bill n~e~it~ozIec1, or written thereon the wonls or names London C o i t v e ~ I i ~ e01 , Origiiial Gonveyance for Gonipmy, or any other names, words, or devices painted, stiutuped, priiitecl, or writteu thereon, in such nianner as to forttt or be a colonrattle irnitatio~tof the

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BERRY U . AEMIBTEAD

613

names worda and devices painted, stamped, printed, or written on the omnibuses of the Plaintiffs; and let the Defendant pay to the Plaintiffs their costs of this appIication. An appeal motion to discharge this order was heard a t the Lord Chancellors house on the 18th and 19th of August, and dismissed by his Lordship with costs. The objection to the suit, an the ground of the non-compliance of the Plaintiffs with the directions contained in the ninth and eleventh sections of the 2 C9c 3 W.4, c. 120, was again urged, on the part of the Appellant, by Sir Charles Wetherell, Mr. Kindersley, and Mr,Bird ; but the Lord Chancellor waa of opinion that those directions were merely fiscal, and did not affect the Plaintiffs right to sue.
T

[221] BERXY . U . ARNISTEAD. A p d 20, 22, J d y 5, 1836.

[S. C. 5 L. J. Ch. (N,
310.1

A purchaser and his solicitor fraudulently, and in the absence of the purchasers solieitor, obtained from a purchaser (who was desirous of completing the purchase, and bad entered into possession) the purchase-money arid covenants for the production of title-deeds, while the title as to a part of the purchased premises was still under investigation. On a bill filed by the purchaser agaiiist the vendor and his solicitor, it was held, that the Plaintiff w a entitled to have the contract rescinded, and his purchase-money, together with all costs, charges, arid expenses (including auction duty), repaid to him, and to have the deeds of coveirant executed by him delivered up to be cancelled.
The bill was filed by Richard StitTIing Berry, the purchaser of part of an estate which had been sold by auction, against Arthur Armistead, the vendor, and Richard Willis, his sdicitor ; and it prayed a declaration that the Plaintiff had been irtduced to complete his purchase by the false arid fraudulent misrepresentations of the Defendants, and that the agreements for the purchase might be rescinded, and delivered up to be cancelled ; that the purchase-money, together with all the costs, charges, and expenses incident to the purchaae, might be repaid to the Plaintiff j ancl that the deeda of covenant, fraudulently procured to be executed by the Plaintiff, might be delivered up; or for a reference to the Master, to ascertain to what part of the premises a good title could be made, and for a compensation as to the rest; and that the Defendants Armistead and Willis might pay the costs of the suit. The Defendants, by their answer, insisted that the Plaintiff had accepted the title; had been let into possession of the estates in question ; and had executed the deeds of covenant, and paid the purchase-money, with a fnll knowledge of all the circumstances of the transsctioa which the Plaintiff sought to impeach. The case made by the bill was, that the Defendant Armistead, claiming to be seised in fee-simple of certain estates devised to him by the will of Jamcs Bibly, dated E2221 the 30th of January 1822, upon trust for sde, put up the same for sale by auction, on the 30th of September 1833, in many lots ; and that, at su& aaction, the Plaintiff became the purchaser of ten lots, a t sums amounting ill the whole to &:2170; and that he subsequently became the purchaser of another part of the same estate for the sum of $735. The sum of 2317 was paid by the Plaintiff in part payment of the purchasemoney. On the 12th of January 1833, abstracts were delivered by the Defendant Willis, the solicitor of the vendor, to Thomas Wilson, the solicitor of the Plaintiff; and, in the same month, the Plaintiff took possession. On the 31st of the same month of January the abstracts were returned, with several marginal queries, one of which, opposite ta the recital of a fine levied by the testator, after the date of his will, was as folbws : Query as to the operation of this fine upon the will : copy of chirograph to be furnished to ascertain this. The abstracts were returned by the solicitor of the vendor to the solicitor of the purchaser on the 13th of February 1833, vith answws to the several queries ; and under the last-mentioned query were written the