MOSES v. PARKER. Commissioners were transferred accordingly by Act No. 10 of that year. It was enacted by section 5 that the decision and report of the Court should be binding, final, and conclusive between the parties concerned. And the Governor also is to be bound to act in accordance with the report. Section 8 runs as follows: "In examining into and reporting upon all such applications and matters as aforesaid, the said Court and clerk of the Court shall be guided by equity and good conscience only, and by the best evidence that can or may be procured, although not such as would be required or be admissible in ordinary cases; nor shall the said Court or clerk of the Court be bound by the strict rules of law or equity in any case, or by any technicalities or legal forms whatever."

The present petitioner applied for a grant of land, and certain persons entered caveats, alleging that the land was already granted to some one under whom they claimed. If so, the Court could not deal with the case. The question turned on the construction of a grant-whether it was made for life or in fee-simple. The Court held that it was a fee-simple grant, which, so far as their duties went, put an end to the case. The petitioner then applied for leave to appeal; and the Court held that they were precluded from granting such leave by section 5 of the Act of 1858. In this opinion they were clearly right.

This application, however, is made to the discretion of her Majesty in Council; and the refusal of a claim to appeal as of right is only used, as it is often quite fairly used, to influence the discretion of the Crown in the petitioner's favour. So we are led to the further question whether the subject-matter is one to which the prerogative of granting appeals from Courts of justice can apply. The Supreme Court has rightly observed that her Majesty's prerogative is not taken away by the Act of 1858; but intimates a doubt whether it ever came into exist

ence.

Their Lordships think that this doubt is well founded. They cannot look upon the decision of the Supreme Court as a judicial decision admitting of appeal. The

Court has been substituted for the Commissioners to report to the Governor. The difference is that their report is to be binding on him. Probably it was thought that the status and training of the Judges made them the most proper depositaries of that power. But that does not make their action a judicial action in the sense that it can be tested and altered by appeal. It is no more judicial than was the action of the Commissioners and the Governor. The Court is to be guided by equity and good conscience and the best evidence. So were the Commissioners. So every public officer ought to be. But they are expressly exonerated from all rules of law and equity, and all legal forms. How, then, can the propriety of their decision be tested on appeal? What are the canons by which this board is to be guided in advising her Majesty whether the Supreme Court is right or wrong? It seems almost impossible that decisions can be varied except by reference to some rule; whereas the Court making them is free from rules. If appeals were allowed, the certain result would be to establish some system of rules; and that is the very thing from which the Tasmanian Legislature has desired to leave the Supreme Court free and unfettered in each case. If it were clear that appeals ought to be allowed, such difficulties would doubtless be met somehow. But there are strong arguments to shew that the matter is not of an appealable nature.

In the case of Théberge v. Laudry (1) this board had to consider the effect of a Quebec statute which transferred the decision of controverted elections to the Legislative Assembly, from the Assembly itself to a Court of justice. The statute provided that the judgment of the Court should not be susceptible of appeal. Though that provision would destroy the right of a suitor to an appeal, it did not, taken by itself, destroy the prerogative of the Crown to allow one. But this board held that they must have regard to the special nature of the subject; to the circumstance that election disputes were not mere ordinary civil rights, and that the statute was creating a new and unknown jurisdiction for the purpose of vesting in

(1) 46 I. J. P.C. 1; 2 App. Cas. 102.

MOSES v. PARKER.

a particular Court the very peculiar jurisdiction which up to that time had existed in the Assembly. And they came to the conclusion that the intention of the Legislature was to create a tribunal in a manner which should make its decision final to all purposes, and should not annex to it the incident of being reviewed by the Crown under its prerogative.

The reasons there given apply closely to the present case. Applications for land yet ungranted by the Crown are certainly not ordinary civil rights. They are created and regulated by the law of each colony, and in this colony were, up to 1858, carefully kept out of the province of legal claims. In 1858 they were transferred to the Court with an express provision that its decision should be final. So far the case resembles the Quebec election case. But it has also the very important additional incident, that the Legislature ordered the Court to be guided by the same principles as were laid down for the Commissioners, and expressly exonerated them from all rules of law or practice. It is clear to their Lordships that these affairs have been placed in the hands of the Judges, as persons from whom the best opinion may be obtained, and not as a Court administering justice between litigants; and they hold that such functions do not attract the prerogative of the Crown to grant appeals.

In Theberge v. Laudry (1) the board pointed out that the case between the parties was one in which they would not think of admitting an appeal if the power existed. Their Lordships make the same remark here. Indeed, if we were to cast about for illustrations of the absurdity of appeals under such conditions as are created by the Act of 1858, no more glaring one could be found than the present case. For the petitioner's complaint is that the Judges below have not sufficiently availed themselves of their emancipation from rules of law, equity, and practice, but on the contrary have suffered themselves to be guided by both law and common sense-first, in refusing to look at evidence tendered for the purpose of contradicting the plain words of a formal instrument; and secondly, in giving to that instrument its plain effect in accord

Jamaica-Trade Mark-Trade NameWrongful Use of Trade Name-Injunction-Misleading Statements on Plaintiff's Label.

A plaintiff is entitled to an injunction restraining a rival trader from the use of a name which is a substantial part of his trade mark, notwithstanding a misrepresentation of fact on the labels constituting the trade mark. Such a misrepresentation, in the absence of any design to mislead, does not disentitle the plaintiff to relief.

The appellant, plaintiff in the action, was the owner of a trade mark registered in England and in Jamaica, of which the words "Club Soda" were part. On the mark were the words " Manufactured in Ireland by H.M.'s Royal Letters Patent." There was no patent for the manufacture. The respondents, whose labels were easily distinguishable from those of the appellant, used the words "Club Soda their labels to describe their own goods :Held, that the appellant was entitled to an injunction restraining the respondents from the use of those words.

on

Appeal from the Supreme Court of Jamaica.

The appellant, a soda-water manufac

*Coram, Lord Hobhouse, Lord Macnaghten, Lord Morris, and Sir Richard Couch.

COCHRANE v. MCNISH AND SON. register. On obtaining registration the appellant, through his solicitors in Jamaica, requested the respondents to discontinue the use of the term "Club Soda" in connection with their sodawater manufactured in the island. They declined to do so, and then this action was brought.

The respondents' case was that the words "Club Soda" in their label were not borrowed from the appellant's label at all. They were agents, they said, for the sale of some American whisky called Club Whisky, and so the term suggested itself to them when they began to make soda-water in 1890. They insisted that their labels and advertisements were not calculated to deceive, or to lead any purchaser to believe that the soda-water which they sold was soda-water of the appellant's manufacture. They further submitted that, in any event, the appellant was disentitled to relief by reason of certain statements contained in his label or trade mark, which they alleged to be false and misleading.

The action came on for trial on April 16, 1894, before Mr. Justice Northcote, acting as Chief Justice. His Honour gave judgment for the defendants with costs. He found that the words "Club Soda " had at the time of the commencement of the action acquired in the trade the meaning of soda-water made by the plaintiff. But he held that the defendants, although they had made use of the word "club," which he said was probably "a material part of plaintiff's trade mark as it communicated that name to his goods," had successfully distinguished their soda-water from that of the plaintiff, and had made the distinction perfectly clear.

On appeal to the Supreme Court, Mr. Justice Northcote adhered to the view which he had expressed in his judgment at the trial. The other members of the Court, Mr. Justice Lumb and Mr. Justice Jones, concurred with Mr. Justice Northcote in holding that the words "Club Soda" meant soda-water made by the plaintiff. But they were both of opinion that those words as used by the defendants were calculated to deceive, and that ordinary purchasers or consumers of sodawater would be misled, although the two

labels were so dissimilar that the one could not be mistaken for the other. They held, however, that the plaintiff was not entitled to relief by reason of his having attached to his trade mark statement which they considered to be a misrepresentation.

a

As regards the first point, on which there are concurrent findings, and on which the evidence appears to be abundant and uncontradicted, the learned counsel for the respondents were not in a position to dispute the conclusion arrived at in the Court below. Nor was there much to be said in regard to the second point. It is quite true that no one could mistake McNish's label for Cantrell & Cochrane's, and there is little or no probability that any one in the trade would be deceived by the words "Club Soda" on McNish's label. But that is not enough. As the learned Judges who formed the majority in the Court of Appeal observed, the acting Chief Justice did not sufficiently consider the danger to the consumer. In the case of casual consumers the probability of deception is obvious. People who ask for soda-water at a restaurant, or call for soda and whisky over the counter, do not at any rate, as a rule, handle the bottle or examine the label. Their Lordships have no hesitation in agreeing with the Court of Appeal that the use of the words "Club Soda" by the respondents is calculated to deceive. So far their Lordships agree with the Supreme Court.

Then comes the question, Has the appellant disentitled himself to the protection of the Court by reason of the representations which he has made in connection with his trade mark?

The trade mark of the appellant as registered in England and in Jamaica is a rectangular label with a broad band formed by parallel lines running diagonally from the lower corner on the left hand to the upper corner on the right. On this band are printed within inverted commas, so as readily to catch the eye, the words "Club Soda." Underneath in brackets are the words "specially prepared." In the triangular space above the band are arranged the words "Cantrell & Cochrane's SuperCarbonated," and in the triangular space

COCHRANE v. MCNISH AND SON.

below the words "Works-Dublin and Belfast." As the trade mark is actually used, the label containing the trade mark proper has a narrow border on each side, bearing the words "Registered Trade Mark," and there is a margin or border below on which are printed the words "Manufactured in Ireland by H.M. Royal Letters Patent." The question turns on the meaning of those words. Construed grammatically they have really no meaning. The majority of the learned Judges in the Supreme Court held that they amounted to a representation that the composition or ingredients of the article offered for sale by the appellant as "Club Soda" were protected by an existing patent. The learned counsel for the respondents urged this view upon the Court, and contended strenuously that any person reading the appellant's label would suppose that he was invited to buy a patented article. They argued, moreover, that by this representation persons would or might be deterred from engaging in the manufacture of soda-water. As the composition and manufacture of soda-water are matters of common knowledge, there does not seem much ground for apprehension on that score. And it is at least open to doubt whether the word "patent" as applied to soda-water would be a complimentary or attractive epithet. To some the term would perhaps convey the idea that the article was not the genuine thing, but a substitute prepared in accordance with the specification of some ingenious patent. At any rate, it is to be observed that the appellant has never attempted to connect the word "patent" with the name of the article which he makes. The words which have given rise to this controversy are not to be found in any of his advertisements, or even in all his show-cards. Still they are no doubt used as an advertising puff and as an attractive embellishment of his trade mark, and they do certainly represent that there is a patent of some sort connected with or used in his manufacture. The appellant and his manager were called upon for an explanation. Their explanation was this: With some slight exceptions, they said, we use nothing but patented machinery in the manufacture of our sodawater, and for our most important machine

we have an exclusive licence in Ireland; the words were intended to mean “manufactured in Ireland by means of patented machinery." Considering that it is common ground that in the manufacture of soda-water there is no secret and frequently no soda, and that all that is required, as one of the respondents says, is care and cleanliness, that does not seem an unreasonable or unnatural explanation. There is no suggestion to be found in the evidence (which has certainly not been unduly limited or curtailed) tending to throw doubt on that explanation, or to shew that anybody has been or could be misled by words on which so much labour and attention have been spent in argument, and to which apparently little or no importance is attached elsewhere. The appellant's trade is an honest trade. And their Lordships are not prepared to hold that by reason of some words not designed to mislead, and at most equivocal, the appellant has been guilty of a misrepresentation which disentitles him to relief.

The respondents erred unwittingly at first. But as they persisted in their error after their attention was called to the fact that they were infringing the appellant's rights, their conduct in the eye of the law amounts to fraud, and they must be held responsible for the consequences.

Their Lordships will therefore humbly advise her Majesty that the judgment of the Supreme Court ought to be reversed, with costs, and that the appellant is entitled to judgment with costs, awarding an injunction to restrain the respondents from infringing his trade mark by the use of the words "Club Soda," or any words calculated to lead to the belief that sodawater manufactured by them is sodawater of the appellant's manufacture, and from selling or offering for sale as "Club Soda" any soda-water not manufactured by the appellant.

The respondents will pay the costs of the appeal.

Solicitors C. Urquhart Fisher, for the appellant; Tippetts & Son, for the respondent.

[Reported by J. Eyre Thompson, Esq., Barrister-at-Law.