1905 LEVISTON v. PRESIDENT, OF THE SHIRE OF doubt. The cases in which the intention has been presumed from A'BECKETT, J. long-continued user differ widely from the present. Dedication is a question for a jury, in whose place I stood. If I had had a jury before me at the trial, it would not have been proper for me on the evidence there given to have directed them to find dedication; I should have left it to them to say aye or no upon the question. Standing in their place, I find that there has been no dedication. In considering whether there was dedication in fact intended or to be imputed by inference of law, I have had regard to the circumstances under which the track was first formed and continued to be used, and to the powers possessed by the shire under Local Government Acts and by the Crown under the Land Acts. The first owner of the land had distinct notice in his licence of the right of the Governor in Council to resume land for a highway, and found persons employed by the shire, the road-making authority, forming a track across his land. He and those who succeeded him would naturally have assumed that these acts were done, as in fact they were done, with a view to the creation of a highway by the exercise of statutory authority which would entitle the owner in varying circumstances to varying compensation. Should he lose these rights because he did not treat the servants of the shire as trespassers and forbid the public to use the road until it was actually proclaimed? Is he to be considered as giving because he did not resist those who had power to take? A decision that absence of opposition by a landowner, in a case like the present, amounts to dedication, would, in my view, be not merely bad in law, but mischievous in its consequences, by forcing landowners to preserve their rights by obstructing every attempt to form or use a road until a road had been legally created by the exercise of statutory authority. Such an attitude on the part of landowners would impede the progress of settlement. As to damages, I think that the course taken by the plaintiff when his fences were broken down was reasonable, and that the losses described in his evidence actually occurred. It would be difficult to estimate them with exact accuracy, and allowing for a natural inclination to make the most of them, I award the plaintiff 300l. I direct judgment to be entered for the plaintiff with 3007. damages and costs, including costs of interrogatories and discovery. A BECKETT, J. 1905 LEVISTON The statement of claim also asks for an injunction. What was done by the defendants, however, was done in the exercise of a supposed right, and if this judgment stands I see nothing to suggest the possibility of its recurrence. Consequently I do not think an injunction necessary in this case, but I reserve liberty to NARRACAN. apply for an injunction if hereafter it should be thought necessary. v. PRESIDENT, OF THE SHIRE OF Judgment for the plaintiff for 300l., with costs. Liberty to apply for injunction reserved. Solicitor for the plaintiff: E. H. Hick (for J. W. Sutherland, Leongatha). Solicitor for the defendants: D. Wilkie. H. 1. C. HODGES, J. NATIONAL STARCH COMPANY v. ROBERT HARPER AND July 25, 26, 27 31. CO. PROPRIETARY LIMITED. Trade mark-Passing off action-Pleading-Particulars-Persons to whom goods alleged to have been passed of—“ Rules of the Supreme Court"-Order XIX., r. 7. Where the statement of claim in a passing off action alleged that there had been actual passing off by the defendant or its agents, Held, that the defendant was not entitled to particulars of the names and addresses of the persons to whom the alleged passing off had been effected. Duke v. Wisden ([1897] 77 L.T. 67) followed. Humphries v. Taylor Drug Co. ([1888] 39 Ch. D. 693); In re Aquascutum Limited v. Moore & Scantlebury ([1903] 20 R.P.C. 640); Imperial Tobacco Co. v. Purnell ([1903] 20 R.P.C. 718) not followed. Marriott v. Chamberlain ([1886] 17 Q.B.D. 154) distinguished. SUMMONS. This was a summons in an action by the National Starch Co., an American corporation carrying on business, among other places, in Victoria, against Robert Harper and Co. Proprietary Limited. The plaintiff by its statement of claim alleged that it was the proprietor of a trade mark consisting of the word "Maizena," duly registered in Victoria under the Trade Marks Acts; that the defendant had been guilty of infringement of the said trade mark by the use of the word "Maizo" in connection with the sale of goods not of plaintiff's manufacture. By paragraph 7 of the statement of claim it was alleged that " The defendant by the use of the said word Maizo' has passed off and is passing off large quantities of goods not of plaintiff's manufacture as and for the plaintiff's goods and has made and is making large profits thereby." The plaintiff claimed an injunction to restrain the defendant from infringing and from passing off. The defendant applied to the plaintiff for particulars under paragraph 7, and these having been refused, this summons was taken out for particulars of the times when, and the places where, and the persons to whom the defendant was alleged to have passed off the said goods. Cussen for the defendant, in support, referred to Kerly on Trade Marks (2nd ed.), p. 440; Humphries v. Taylor Drug Co. (a); Whitstable Oyster Fishery Co. v. Hayling Fisheries Limited (b); Aquascutum Limited v. Moore & Scantlebury (c); Imperial Tobacco Co. v. Purnell (d). Irvine and Coldham for the plaintiff, to oppose, referred to Duke v. Wisden (e); Wareham v. McLean Bros. & Rigg (f). Cussen in reply referred to Zierenberg v. Labouchere (g); Bishop v. Bishop (h). Cur. adv. vult. HODGES, J. By paragraph 7 of the statement of claim the plaintiff alleges that "the defendant by the use of the said word 'Maizo has passed off and is passing off large quantities of goods not of the plaintiff's manufacture as and for the plaintiff's goods and has made and is making large profits thereby." Defendant has applied for particulars under that paragraph of the times when and places where the alleged passing off took place, and the names and addresses of the persons by and to whom the alleged passing off was effected. HODGES, J. 1905 NATIONAL STARCH COMPANY V. ROBERT HARPER (a) 39 Ch. D. 693. (b) 17 R.P.C. 461. (c) 20 R.P.C. 640. (d) 20 R.P.C. 718. (f) (e) [1897] 77 L.T. 67. HODGES, J. 1905 NATIONAL STARCH COMPANY v. ROBERT HARPER AND CO. PROPRIETARY LIMITED. The defendants do not dispute their obligation to state the times and places, but they object to give the names of the persons to whom the alleged passing off took place. The defendants, in support of their application, cited a passage from Kerly on Trade Marks (2nd ed.), p. 440—“If the plaintiff alleges that actual deception has occurred he will be ordered to give particulars of the persons deceived." For that proposition the author cites two cases-Humphries v. Taylor Drug Co. (i) and Whitstable Oyster Fishery Co. v. Hayling Fisheries Limited (k). With regard to the first of these authorities I shall have something to say later on. With regard to the second, the only reference to particulars is in one passage of the judgment reproduced in the headnote. It there states-" By certain orders the plaintiffs were precluded from giving evidence of certain deception, having given no particulars thereof." It is suggested that the particulars which were ordered in that case must have included the names of the persons to whom the company had been using the deception, because Mr. Kerly was himself in the case and might be taken to know intimately what had passed. There may be a probability about that, but I cannot look on it as an authority. So far as Kerly is concerned, I think it is narrowed down to Humphries' Case. Mr. Sebastian, in his book on Trade Marks (4th ed.), has a passage to the same effect at page 228. For that passage a case is cited which from the footnote I should assume is not reported on that point. At any rate, I have not been able to find any report of it on the point. The other authority is Humphries v. Taylor Drug Co. (1) which, I take it, is the real authority so far as the two text-book writers are concerned. For the plaintiff reliance was placed on the decision of the Court of Appeal in the case of Duke v. Wisden (m). In that case, among other allegations the plaintiffs charged the defendants with passing off certain of the plaintiffs' inferior balls as the best balls manufactured by the plaintiffs. Application was made for the names and addresses of the persons to whom the goods were passed off. That was refused by the Court of Appeal. It seems from that that the Court of Appeal is in direct conflict with Kekewich, J., in Hum (i) [1888] 39 Ch. D. 693. (1) 39 Ch. D. 693. (m) [1897] 77 L.T. 67. V. 1905 NATIONAL บ. ROBERT HARPER phries' Case. This case would not therefore have required further HODGES, J. investigation had it not been that Kekewich, J., had in several later cases acted upon his previous decision and ordered particularsfor instance, in the case of Aquascutum Ltd. Moore & Scantlebury (n), in which he appears to have followed his previous decision. There is also The Imperial Tobacco Co. v. Purnell (0), in which he appears to have done the same thing, and in which Mr. Sebastian, who appeared as counsel, does not seem to have cited the case in the Court of Appeal to which I have referred. I think there is also another case in which the same thing was done. The question I have therefore to determine is whether, notwithstanding that decision of the Court of Appeal, the law is still as laid down in Humphries' Case. That makes it necessary to examine the authority on which Humphries' Case was based, and the view of the Court of Appeal in the case of Duke v. Wisden (p). Humphries' Case is based by Kekewich, J., on the decision in Marriott v. Chamberlain (q), which is a decision of the Court of Appeal. If Marriott v. Chamberlain supports absolutely and unmistakably the decision of Kekewich, J., I should have two conflicting decisions of the Court of Appeal. I have therefore to examine Marriott v. Chamberlain to see whether it is an authority for the position taken up by Kekewich, J. Marriott v. Chamberlain was a libel action in which the defendant had charged the plaintiff with maliciously fabricating a story about a letter which according to defendant never existed, and which the plaintiff alleged he had seen in the hands of various persons. The defendant pleaded justification, which made it obligatory on him to prove two things(a) that the letter did not exist; (b) that plaintiff had no reasonable ground for supposing it to exist. Unless defendant proved both of these propositions he failed to establish his defence. The plaintiff had alleged that he had seen this letter in the hands of certain persons, without naming them. The defendant, in order to prove that plaintiff had no reasonable ground for believing this letter ever existed, would have to prove that the persons in whose hands the plaintiff alleged the letter was, were untrustworthy persons. Therefore the defendant had to prove a negative, as was pointed out (n) 20 R.P.C. 640. (0) 20 R.P.C. 718. (p) 77 L.T. 67. (q) [1886] 17 Q.B.D. 154. |