UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 THE LAW 
 
 RELATING TO 
 
 ADVEETISEMENTS
 
 THE LAW 
 
 RELATING TO 
 
 ADVEETISEMENTS 
 
 BY 
 
 T. ARTEMUS JONES 
 
 OF THE MIDDLE TEMPLE, BARRISTER-AT-LA\V ; 
 CHESTER AND NORTH WALES CIRCUIT 
 
 LONDON 
 
 BUTTERWOETH & CO., 11 & 12, Bell Yard, Temple Bar 
 Xaw ipubUsbers 
 
 1906
 
 7z^3a 
 iqoc 
 
 rniKTED BY 
 
 WILLIAM CLdWES AND SONS, LIMITED, 
 
 LONDOK AND DECCLES. 

 
 i^ 
 
 «> 
 
 \ 
 
 PREFACE 
 
 The part played by modern advertising in the develop- 
 ment of national and international trade is a sufficient 
 reason for the appearance of a book, however imperfect it 
 may be, dealing with the law relating to advertisements. 
 Somewhat liurriedly compiled during odd intervals of 
 practice, the volume gives an outline of the salient facts in 
 the decided cases, whicli may be found useful by the legal 
 practitioner. The chapters dealing with copyright and 
 Trade Marks are necessarily meagre. The absence of any 
 work on the subject of advertisements in our law libraries 
 is the only claim which the author ventures to make on 
 behalf of this little volume. 
 
 T. A. J. 
 
 5, Pump Court, Temple, 
 April, 1906.
 
 CONTENTS 
 
 PAGK 
 
 Preface v 
 
 Table of Cases ix 
 
 Table of Statutes xv 
 
 CHAPTER 
 
 I. CONTKACTS FORMED THROUGH ADVERTISEMENTS . . 1 
 
 II. Misrepresentation in Advertisements, and its 
 
 Legal Consequences 25 
 
 III. Advertisement Orders and Other Agreements . 40 
 
 IV. The Eating of Advertising Stations . . .65 
 
 V. Advertising Schemes and the Lottery and Betting 
 
 Acts 75 
 
 VI. Libel and Slander of Title in Advertisements . 98 
 
 VII. Copyright in Advertisements 132 
 
 VIII. Agency and Commission 154 
 
 IX. Trade Marks 172 
 
 X. Illegal Advertisements 184 
 
 Index (1)
 
 TABLE OF CASES 
 
 Adjello V. Worsley, 1898, 1 
 
 Ch. 275 29 
 
 Aflalo V. Lawrence and Bul- 
 
 ler, 1902, 1 Ch. 264 . . 152 
 Anderson v. Liebig's Extract 
 
 of Meat Co., 45 L. T. 757 . 126 
 Anderson v. Pitcher, 2 B. & 
 
 P. 168 49 
 
 Armstrong'!;. Annit, 2 T. L. R. 
 
 887 125 
 
 Ashley and Smith v. Hawke, 
 
 289, 67 J. P. 361 . . 89, 95 
 Ex parte Asiatic Banking 
 
 Co., 2 Ch. A. 391 .. . 15 
 
 B 
 
 Barclay v. Pearson, 1893, 2 
 Ch. 155 77, 82 
 
 Barnett v. Lovell, 68 J. P. 93 72 
 
 Barrett v. Gilmour, 17 T. L. 
 R. 292 160 
 
 Barton V. St. Giles and St. 
 George's Assessment Com- 
 mittee, 1900, 1 Q. B. 389 69 
 
 Beeching v. Westbrook, 8 
 M. & W. 414 .. . 58, 60 
 
 Bent V. Wakefield Bank, 4 
 C. P. D. 1 18 
 
 PAGE 
 
 Bettany v. Eastern Morning 
 
 Nczvs, 16 T. L. R. 401 158, 159 
 Bilbee v. Hasse, 5 T. L. R. 
 
 677 159 
 
 Blewitt V. Trotton, 1892, 2 
 
 Q. B. G27 58 
 
 Boguo V. Houlston, 5 de G. 
 
 & S. 267 134 
 
 Bonnard v. Perryman, 1891, 
 
 2 Ch. 269 .. . 101, 116 
 Bowker v. Wilkinson, 5 T. L. 
 
 R. 382 58 
 
 Boydell v. Drummond, 11 
 
 East, 142 40 
 
 Boyd V. Mathers, 9 T. L. R. 
 
 443 157 
 
 British Empire Typo-Settiug 
 
 Co. V. Linotype Co., 14 
 
 T. L. R. 253, 511 . . 100, 107 
 Brown v. Croome, 2 Starkie 
 
 297 99 
 
 Camiuada v. Hulton, 60 L. 
 
 J. M. C. 116 . . 78, 82, 88 
 Canning v. Farquhar, 16 Q. 
 
 B. D. 727 9 
 
 Carlisle v. Carbolic Smoke 
 
 Ball Co., 1893, 1 Q. B. 257 4
 
 TABLE OF CASES 
 
 Ex parte Carr, 35 W. R. 150 192 
 Chappoll V. Overseers of St, 
 
 Botolph, 1892, 1 Q. B. 561 68 
 Chilton V. Progress Printing 
 
 Co., 1895, 2 Ch. 29 . . 137 
 Ex parte Clarke and others, 
 
 52L. T. 2G0 187 
 
 Clay V. Crofts, 20 L. J. Ex. 
 
 361 60 
 
 Clay V. Yates, 1 H. & N. 73 129 
 Clifiord V. Commissioners of 
 
 Inland Revenue, 1896, 2 
 
 Q. B. 187 G2 
 
 Cobbettv. Woodward, 14 Eq. 
 
 407 138, 141 
 
 Coleman v. West Hartlepool 
 
 Co., 8 W. R. 734 .. . 122 
 Re Coolgardie Co., ex parte 
 
 Fleming, 1900, 1 Ch. 475 57 
 Cos V. Andrews, 12 Q. B. D. 
 
 130 86 
 
 Cuthbert v, Warmby, 4 
 
 W. N. 12 192 
 
 Daly V. Edwardes, 17 T, L. R. 
 
 115 72 
 
 Denton v. G. N. Ry., 5 E. 
 
 & B. 861 1, 22 
 
 Deslandes v. Gregory, 30 L. 
 
 J. Q. B. 36 155 
 
 Dicks V. Brooks, 15 Ch. D. 
 
 22 135 
 
 Dockrell v. Dougall, 15 T. L. 
 
 R. 333 129 
 
 Doe de. Bingham v. Cart- 
 wright, 3 B. & Aid. 326 . 59 
 Drant v. Brown, 3 B. & C. 
 
 669 59 
 
 Dunlop Pnemnatic Tyro Co. 
 
 V. Maison Talbot, 20 T. L. 
 
 R. 581 118 
 
 E 
 
 Edgar v. Blick, 1 Starkie 464 60 
 England v. Davidson, 11 Ad. 
 
 & E, 859 21 
 
 Evans v. Harlow, 6 Q. B. 
 
 624 100, 114 
 
 Fallick V. Barker, 1 M, & S 
 
 108 17 
 
 Farina v. Fickus, 1900, 1 Ch. 
 
 331 2, 14 
 
 Faulkner v. Cooper, 4 Com 
 
 ' C. 213 159 
 
 Fisher v. Prowse, 2 B. & S. 
 
 770 
 
 Fitch V. Snedaker, 38 N. Y. 
 
 248 
 
 Foli V. Devonshire Club, 3 
 
 T. L. R. 760 .... 
 
 65 
 
 3 
 
 73 
 
 G 
 
 Gadd V. Houghton, 1 Ex. 
 
 357 155 
 
 Gerard v. Bates, 2 E. & B. 
 
 477 10 
 
 Gibbons v. Proctor, 64 L. T. 
 
 594 2, 3, 16 
 
 Gillett V. Mawman, 1 Taunt. 
 
 138 47,49 
 
 Gordon v. Street, 1899, 2 Q. 
 
 B. 641 27, 38 
 
 Grace v. Newman, 19 Eq. 
 
 623 140, 146 
 
 Hadley v. Baxendale, 9 Ex. 
 354 
 
 43
 
 TABLE OF OASES 
 
 XI 
 
 I'AOB 
 
 Hall V. Cox, 1899, 1 Q. B. 
 
 199 78,84 
 
 Hanfstaengl Art Co. v. Hol- 
 
 loway, 1893, 2 Q. B. D. 1 133 
 Hanfstaonglu.Empirc Palace 
 
 and Ne\Ynes, 1894, 3 Cb. 
 
 109 135 
 
 Hargrave v. Le Breton, 4 
 
 Burr, 2422 . . • . . 106 
 Harman v. Delany, 2 Stra, 
 
 898 98, 103 
 
 Harris v. Nickorsou, 8 Q. B. 
 
 287 2, 11 
 
 Hawke v, Mackenzie, 1902, 
 
 2 K. B. 216 . . . . 88, 90 
 Hawkins v. Tusford, Times, 
 
 Dec, 23, 1867 . 41, 44, 156, 157 
 Hayward & Co. v. Hayward 
 
 and Sons, 34 Ch. D. 198 120 
 Heap V. Hartley, 42 Ch. D. 
 
 461 71 
 
 Hermann Loog v. Been, 26 
 
 Ch. D. 306 124 
 
 Hills V. Davies, 67 J. P. 198 73 
 Holten V. Arthur, H. & M. 
 
 603 139, 140 
 
 Hubbuck and Sons v, Wil- 
 kinson, Heywood, and 
 
 Clarke, 1899, 1 Q. B. 86 101,113 
 Hudspeth v. Yarnold, 9 0. B. 
 
 625 59, 60 
 
 Hullv.L. C.C, 1901,1 Q.B, 
 
 581 72 
 
 Hunt V. Williams, 52 J. P. 
 
 821 77,81 
 
 Hunter v. Sharpe, 4 P. «fe F. 
 
 983 100, 111 
 
 Hutton V. Warren, 1 M, & 
 
 W. 475 49 
 
 J 
 
 Jenner v. A'Beckett, 7 Q. B. 
 11 100, 109 
 
 Jones V. Commissioners of 
 Inland Revenue, 1895, 1 
 Q. B. 484 .. . 60, 61, 63 
 
 Kelly V. Croft, 14 T. L. K. 
 
 348 159 
 
 Kerr v. Gandy, 3 T. L. R. 75 122 
 Knight V. Barber, 16 M. & W. 
 
 66 59, 60 
 
 Lamb v. Evans, 1893, 1 Ch. 
 
 218 .. . 138, 139, 146, 160 
 Lancaster v. Walsh, 4 M. & 
 
 W. 16 21 
 
 Lawless v. Anglo-Egyptian 
 
 Co. 4 Q. B. 262 ... 99 
 Lay V. Lawson, 4 A. & E. 795 99 
 Leather Cloth Co. v. the 
 
 American Leather Cloth 
 
 Co., 4 Do Gex, Jones, and 
 
 Smith, 142 173 
 
 Le Blanche v. L. & N. W. 
 
 By, Co., C. P. D. 287 . 23 
 L. C. C. V. Illuminated Ad- 
 vertising Co., 68 J. P. 445 72 
 Lennox v. Davis, 66 J. P. 
 
 469 91 
 
 Lennox v. Stoddart, 66 J. B. 
 
 469 88,91 
 
 Levi V. Champion and Co., 
 
 3 T. L. R. 286 . . . . 151 
 Liebig's Extract of Meat Co. 
 
 V. Anderson, 55 L. J. 200 126 
 Lockhart v. Barnard, 14 M. 
 
 &W. 674 20 
 
 Lockwood V. Tunbridge Wells 
 
 Local Board, Cab. & E. 289 54 
 Lucas V. Godwin, 4 Scott 
 
 503 27, 37
 
 Xll 
 
 TABLE OF CASES 
 
 M 
 
 Mackett v. Commissiouers of 
 Heme Bay, 21 W. R. 845 123 
 
 MacNcc V. Persian Invest- 
 ment Corporation, 44 Ch. 
 D, 306 74, 78 
 
 Mander v. Ridge way, 1898, 
 1 Q. B. 501 .... 58 
 
 Maple V. Army and Navy 
 Stores, 21 Oh. D. 369 138, 140, 
 144 
 
 Marcus v. Mayers and Da- 
 vies, 11 T. L. R. 327 . . 41 
 
 Marsden v. Sambell, 28 W. 
 R. 953 47 
 
 Metzler v. Gounod, 32 L. T. 
 656 41, 45 
 
 Monson v. Tussaud, 1894, 1 
 Q. B. 671 . . . . 102, 119 
 
 Moorhouse v. Woolfe,'46 L. T. 
 374 ...... . 33 
 
 Morris v. Blackman, 28 J. P. 
 199 80 
 
 Morrison v. Harmer, 3 Bing. 
 N. C. 759 110 
 
 Mulligan v. Cole, 10 Q. B. 
 549 100, 110 
 
 N 
 
 National Telephone Co. v. 
 Commissioners of Inland 
 Revenue, 1899, 1 Q. B. 250, 
 1900, A. C. 1 . . . 60, 62 
 
 Nayler v. Yearsley, 2 F. & F. 
 41 157 
 
 Nelson v. Dahl, 12 Ch. 576 . 49 
 
 Owen V. Greenburg, Times, 
 March 10, 1898 . . .41, 44 
 
 Paris V. Levy, 2 F. & F. 71 100, 
 
 112 
 Page V. Wisden, 20 L. T. 435 137 
 Paterson v. Gandasequi, 15 
 
 East, 62 155 
 
 In re Pearco, Times, March 
 
 26, 1890 188 
 
 Pearson v. Scott, 9 Ch. D. 
 
 198 49 
 
 Petty and Taylor, 1896, 1 Ch. 
 
 465 150 
 
 Plating Co. i;.'Farquharson 
 
 17 Ch. D. 49 . . . 99, 104 
 Punch V. Boyd and others, 16 
 
 L. R. Ir. 476 ... . 124 
 
 Quartz Hill Gold Mining Co. 
 V. Beall, 20 Ch. D, 501 . 122 
 
 B 
 
 Ratclif!e v. Evans, 1892, 2 
 Q. B. 524 105 
 
 Ravenhill v. Upcott, 33 J. P. 
 299 98, 102 
 
 Redgrave v. Hurd, 20 Ch. D. 
 1 28, 34 
 
 Reg. V. Brown, 1895, 1 Q. B, 
 119 89,96 
 
 Reg. V. Commissioners of 
 Sewers for the City of Lon- 
 don ex parte Brass, 22 L. 
 T. N. S. 582 .... 65 
 
 Reg. V. Harris, 10 C. C. C, 
 352 80 
 
 Reg. V. Mil vain, 1 T. L. R. 
 159 73
 
 TABLE OP CASES 
 
 xm 
 
 FAOB 
 
 Reg. V. St. Pancras Assess- 
 ment Committee, 2 Q. B. 
 D. 581 GG 
 
 Reg. V. Stoddart, 1901, 1 Q. B. 
 177 88,89,91 
 
 Richardson v. Silvester, 9 Q. 
 B. 34 27,36 
 
 In re Riviere's Trade Mark, 
 26 Ch. D. 48 . . . . 130 
 
 Roberts v. Havelock, 3 B. & 
 Ad. 404 53 
 
 Royal Baking Powder Co. v. 
 Wright, Crossley, and Co., 
 18 R. P. C. 95 . . . . 118 
 
 Russell V. Notcutt, 12 T. L. 
 R. 195 . . • . . . 131 
 
 S 
 
 Saloman v. Brownfield, 12 
 
 T. L. R. 239 . . . . 159 
 Saxby v. Easterbrook, 3 G. 
 
 P. D. 339 125 
 
 Schauer v. Field, 1893, 1 Ch. 
 
 35 138, 152 
 
 Scott V. Hanson, 1 Sim. 13 28, 32 
 Shaokell v. Rosier, 2 Bing. 
 
 N. C. 635 . . . . 100, 127 
 Shelley v. DiUon, 30 L. R. Ir. 
 
 304 70 
 
 Shepherd v. Kain, 5 B. & 
 
 Aid. 241 27, 36 
 
 Sinclair v. Bowles, 9 B. «& C. 
 
 92 53 
 
 Smith V, Land and House 
 
 Property Co., 28 Ch. D, 7 28, 82 
 Smith V. Moore, 1 C. B, 438 ; 
 
 9 Jur. 352 19 
 
 Spencer v. Harding, 5 C. P. 
 
 561 13 
 
 Stewart v. Shannessy, 2 F. 12 155 
 
 Stoddart v, Argus Printing 
 
 Co., 1901, 2 K. B. 47 . . 91 
 Stoddart v. Hawke, 1902, 1 
 
 K. B. 353 88 
 
 Stoddart v. Sagar, 1895, 2 
 
 Q. B. 475 ... . 88, 92 
 Sutton V. Tatham, 10 Ad. & 
 
 E. 27 49 
 
 Sweetmeat Automatic Co. V. 
 
 Commissioners of Inland 
 
 Revenue, 1895, 1 Q. B. 484 62 
 Swift V. Winterbotham, 8 Q. 
 
 B. 241 26 
 
 Tarne v. Walker, 8 B. & S. 
 314 17 
 
 Taylor v. Pendleton, 19 Q. B. 
 D. 288 67 
 
 Taylor v. Smetten, 11 Q. B. 
 D. 207 . . . . 77, 81 
 
 Thatcher v. England, 15 L. J. 
 C. P. 241 21 
 
 Thor ley's Cattle Food v. 
 Massam, 6 Ch. D. 552 ; 14 
 Ch. D. 781 . . . . , 126 
 
 Tunmer v. Partington Adver- 
 tising Co., 68 J. P. 319 . 71 
 
 Tussaudv. L. C. C.,57 J. P. 
 185 72 
 
 VoUans v. Fletcher, 16 L. J. 
 Ex. 173 
 
 W 
 
 Wallace's Case, In re Metro- 
 politan Fire Insurance Co., 
 1900, 2 Ch, 671 ... 
 
 59
 
 XIV 
 
 TABLE OP CASES 
 
 Walter v. Howse, 17 Ch. D. 
 
 706 149 
 
 Warr & Co. v. L. C. C, 1904, 
 
 1 K. B. 713 72 
 
 Waterlow v. Harrisou, 1 E. 
 
 &E. 295 12 
 
 Weeks v. Tybald, Noy, 11 . 2, 13 
 Western Counties Manure 
 
 Co. V. Lawes Chemical 
 
 Manure Co., 9 Eq. 218. .101, 115 
 Whitbread & Co. v. Watt, 
 
 1901, Ch. 911 ... . 47 
 White V. Batey, 8 T. L, R. 
 
 608 100, 106 
 
 White V. Mellin, 1895, A. C. 
 
 155 ... . 100, 101, 116 
 Wildy V. Stephenson, C. & E. 
 
 3 49 
 
 Willans v. Ayres, 3 A. C. 133 49 
 Williams v. Carwardine, 4 B. 
 
 & Ad. 621 .... 3, 8, 14 
 
 Young V. Macrae, SB, & S. 
 264 100, 115
 
 TABLE OF STATUTES 
 
 29 Car. II., c. 3 (Statute of Frauds of 1676) 
 
 10 & 11 Wm. III., c. 17 (Suppression of Lotteries Act of 1699) 
 
 9 Geo. I., c. 19 (Prevention of Lotteries Act of 1722) . . 75, 
 
 8 Geo. II., c. 13 (Copyright of Engravings Act of 1735) 
 
 12 Geo, II., c. 28 (Prevention of Gaming Act of 1739) 
 
 PACE 
 
 40 
 
 75 
 
 79,86 
 
 134 
 
 75 
 
 7 Geo. III., c. 38 (Copyright of Engravings Amendment Act of 1767) 134 
 
 14 Geo. III., c. 48 (Life Insurance Regulation Act of 1774) . . 4 
 17 Geo. III., c. 57 (Engravings Copyright Penalties Act of 1777) . 134 
 42 Geo. III., c. 119 (Suppression of Unauthorized Lotteries Act of 
 
 1802) 82, 84 
 
 4 Geo. IV., c. 60 (Money-raising by Lotteries Act of 1828) . . 75 
 
 5 Geo. IV., c. 83 (Punishment of Disorderly Persons Act of 1824). 82 
 
 6 & 7 Wm. IV., 0. 59 (Engravings Copyright (Ireland) Act of 1836) 134 
 & 7 Wm. IV., c. 66 (Advertising of Lotteries Act of 1836) . 74, 79 
 2 & 3 Vict. 0. 47 (Metropolitan Police Act of 1839) . . .73 
 
 5 & 6 Vict. c. 45 (Copyright Act of 1842) .... 134, 150 
 
 6 & 7 Vict. c. 96 (Lord Campbell's Libel Act of 1843) . . .192 
 
 7 & 8 Vict. c. 12 (International Copyright Act of 1844) . . 150 
 
 8 & 9 Vict. c. 109 (Games and Wagers Act of 1845) ... 4 
 
 15 & 16 Vict. c. 12 (International Copyright Extension Act of 1852) 134 
 
 16 «fe 17 Vict. c. 119 (Betting Houses Act of 1853) 82, 90, 91,92, 94, 95, 97 
 
 16 & 17 Vict. c. 33 (Hackney Carriages (London) Act of 1853) . 191 
 
 17 & 18 Vict. c. 125 (Common Law Procedure Act of 1854) . . 117 
 22 & 23 Vict. c. 35 (Property and Trustees Act of 1859) . . 192 
 28 & 24 Vict. c. 106 (Lands Clauses Consolidation Acts Amendment 
 
 Act of 1860) 72 
 
 24 & 25 Vict. c. 97 (Malicious Injury to Property Act of 1861) . 73 
 
 24 & 25 Vict. c. 96 (Larceny Act of 1861) 190 
 
 88 & 34 Vict. c. 71 (Stamp Act of 1870) 63 
 
 33 & 34 Vict. c. 65 (Advertisements of Stolen Goods Act of 1870) . 191 
 86 & 37 Vict. c. 48 (The Judicature Act of 1873) . . . 117, 127 
 37 Vict. c. 15 (Betting Houses Amendment Act of 1874) . 87, 93, 94
 
 XVI 
 
 TABLE OP STATUTES 
 
 PAOB 
 
 38 & 39 Vict. (Public Health Act of 1875) 193 
 
 4G & 47 Vict, c, 57 (Patents and Trade Marks Act of 1883) . . 99 
 4G & 47 Vict. c. 51 (Corrupt and Illegal Practices Act of 1883) . 184 
 47 & 48 Vict, c. 70 (Municipal Election Corrupt Practices Act of 
 
 1884) 184, 186 
 
 51 & 52 Vict. c. 64 (Libel Amendment Act of 1888) ... 99 
 
 51 & 52 Vict. c. 41 (Local Government Act of 1888) . . .184 
 
 52 & 53 Vict. c. 18 (Indecent Advertisements Act of 1889) . . 187 
 52 & 53 Vict. c. 7 (Customs and Inland Revenue Act of 1889) . 63 
 52 & 53 Vict. c. 27 (Advertising Stations (Rating) Act of 1889) . 65 
 54 & 55 Vict. c. 39 (Stamp Act of 1891) . . . . 61, 65 
 55:& 56 Vict. c. 4 (Betting and Loans (Infants) Act of 1892) 86, 188 
 56 & 57 Vict. c. 73 (Indecent Advertisements Act of 1894) . . 184 
 
 56 & 57 Vict. c. 71 (Sale of Goods Act of 1893) .... 54 
 
 57 & 58 Vict. c. 213 (London Building Act of 1894) ... 72 
 
 58 & 59 Vict. c. 40 (the Corrupt Practices Amendment Act of 
 
 1895) 184, 185 
 
 5 Edw. VII., c. 15 (Trade Marks Act of 1905) . . . .172 
 
 ERRATA 
 
 Page 11, line 11, read " failed " for " parted." 
 36, „ 18, read " curiam " for " currain." 
 87, lines 18, 20, 21, read " subsection " for " section." 
 135, footnote, read " Palace " for " Pabel." 
 140, line 3, read " reviewed " for " renewed." 
 
 155, „ 3, rea(£ " Where " /or " And." 
 
 156, ,, 5, read " contrary " for " contracting."
 
 THE LAW 
 
 EELATINQ TO 
 
 ADVEETISEMENTS 
 
 CHAPTER I 
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 
 
 A LONG series of decisions has establislied the principle 
 that contracts may be formed through advertisements ; for 
 a definite offer published to the world becomes a binding 
 contract as soon as a person comes forward and acts upon 
 it. The dicta laid down by some judges in the cases are, 
 however, seriously questioned by leading authorities, one 
 of whom ^ has committed himself to the opinion that the 
 modern doctrine of acceptance by conduct has been carried 
 to the utmost limit warranted by sound principle, and is 
 not likely to be extended. The tendency of the courts in 
 the more recent cases has been in this direction. That 
 is to say, greater heed has been paid by the judges to 
 the fundamental distinction between the proposal of a 
 contract and the mere preliminaries or declared willing- 
 ness of the advertiser to do business. The border-line 
 which separates the one from the other is shadowy. For 
 example, the time-table of a railway company has been 
 construed into a contract as soon as a person acts upon 
 
 ' Tollock's " Contiact3" (7th cd.), p. 19.
 
 2 ADVERTISEMENTS 
 
 it.* But an auctioneer's advertisement of a sale by 
 auction, which was fixed for a certain date, has been held 
 to be no contract with any one who comes forward and acts 
 upon it.^ The application of the doctrine of acceptance 
 by conduct to different sets of circumstances is beset with 
 difficulties, as the cases cited hereafter show. In Denton 
 V. Great Northern Railway, ene of the judges, Crompton, J., 
 entertained some doubt as to how far the liability of a 
 railway company, sued for breach of contract formed 
 through a time-table, rested on contract. Moreover, in 
 another case ^ the doctrine of tacit acceptance was carried 
 to a length which has been repudiated both by Sir William 
 Anson and Sir Frederick Pollock.^ The former authority 
 cites an instance which illustrates the difiiculty of apply- 
 ing an obligation quasi ex contractu to different circum- 
 stances. Suppose a bookseller publishes a catalogue with 
 prices stated against the titles of the books. If he receives 
 by the same post five or six letters asking for a particular 
 book, does his catalogue bind him in contract ? Then to 
 whom is he bound? To the man who first posted his 
 letter ? If so, how is this to be ascertained ? 
 
 In the earliest case of this kind on record ( Weeks v. 
 Tylald ^) a general offer by A in B's hearing, to give £100 
 to the person who married A's daughter, was held to be 
 no contract with B, who acted upon it. One of the 
 latest cases of the same kind. Farina v. Fichus,^ was 
 decided on analogous lines. In the interval, however, an 
 unbroken succession of cases has established the doctrine 
 that a contract arises as soon as a person performs the 
 
 1 Benton v. Great Northern Railway, 5 E. & B. 861. 
 
 • Ilarris v. Nickerson, 8 Q. B. 287. 
 =■ Gibbons v. I'rodor, 64 L. T. 594. 
 
 * 23(10tlied.); 22(7tliud.) 
 
 » Noy, 11. • 1900,1 Ch. 331.
 
 CONTRACTS FORMED THROUQII ADVERTISEMENTS 3 
 
 conditions mentioned in the advertisement. Nearly all 
 the cases that touch the border-line turn on the same 
 point, namely, whether there is an offer. An offer need 
 not be made to an ascertained person, but no contract can 
 arise until it has been accepted by an ascertained person.* 
 The most familiar illustrations of this proposition are {a) 
 the class of cases where rewards to the public for some 
 service or information have been advertised ; and {h) the 
 class of cases, where the time-tables of railway companies 
 have been held to amount to binding promises. The 
 absence of privity between the contracting parties has 
 occasioned a good deal of discussion among the authori- 
 ties. One of the earliest cases in class {a) was Williams v. 
 Ganvardinc^ where a woman, under the impression that she 
 was going to die, gave information which led to the arrest 
 of a murderer, and for which a reward had been offered. 
 Unfortunately, the existing report is silent on the material 
 point whether the woman knew that a reward had been 
 offered at the time she gave the information. The case 
 is an authority for saying, as Anson points out, not that 
 knowledge of the offer is immaterial, but that the motive 
 of compliance with the request or offer is immaterial. It 
 has been held in the American courts that knowledge of the 
 offer is material,^ and, moreover, the only English case which 
 has decided that knowledge of the offer is immaterial,* has 
 been rejected by Pollock and Anson as a binding authority. 
 The rule laid down ^ for the determination of these 
 cases is : Is there an offer ? And to constitute an offer, 
 the words used, however general, must be capable of appli- 
 cation to specific persons, and must be distinguishable 
 
 ' Ansou, 44. 2 4 B. & Ad. G21. 
 
 ' Fitch V. Siiedaher, 38 N. Y. 248. 
 
 * Gilbms V. Proctor, 61 L. T. 594. ^ Anson, 49.
 
 4 ADVERTISEMENTS 
 
 from iuvitatious to do busiuess, and from advertisement or 
 pufTcry, which does not contemplate legal relations. The 
 application of this rule was discussed at length by the 
 Court of Appeal in the case of Carlilc v. Carbolic Smoke 
 Ball Co.,''- which may properly be cited as the leading case 
 on this subject. The salient facts in the case may be briefly 
 put : Defendants were the proprietors of a medical prepara- 
 tion called " the Carbolic Smoke Ball." They issued an 
 advertisement, in which they offered to pay £100 to any 
 person who contracted the influenza after having used one 
 of their smoke-balls in a specified manner and for a specified 
 period. It added : " £1000 is deposited with the Alliance 
 Bank, Eegent Street, showing our sincerity in the matter." 
 C, on the faith of the advertisement, bought one of the 
 balls and used it in the manner and for the period specified, 
 but nevertheless contracted the influenza. Held, affirming 
 the decision of Hawkins, J., that the above facts estab- 
 lished a contract by the defendants to pay £100 in the 
 event which had happened ; that such contract was neither 
 a contract by way of wagering, within 8 & 9 Vict. c. 109, 
 nor a policy within 14 Geo. III., c. 48, s. 2, and the plaintiff 
 was entitled to recover. 
 
 Fcr Lindley, L.J. : " We must first consider whether this 
 was intended to be a promise at all, or whether it was a 
 mere puff which meant nothing. Was it a mere puff? 
 My answer to that question is No, and I base my answer upon 
 this passage : ' £1000 is deposited with the Alliance Bank, 
 showing our sincerity in the matter.' Now, for what was 
 that money deposited, or that statement made, except to 
 negative the suggestion that this was a mere puff and 
 meant nothing at all ? . . . Then it is contended it is not 
 binding. In the first place, it is said that it is not made 
 ' 1893, 1 Q. B. 257.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 5 
 
 with anybody in particular. Now, that point is common 
 to the words of this advertisement, and to the words of all 
 other advertisements offering rewards. They are offers to 
 anybody who performs the conditions named in the adver- 
 tisement, and anyljody who does perform the conditions 
 accepts the offer. In point of law, this advertisement is 
 an offer to pay £100 to anybody who will perform these 
 conditions, and the performance of the conditions is the 
 acceptance of the offer. That rests upon a string of 
 authorities, the earliest of wliich is Williams v. Carwardinc, 
 which has been followed by many other decisions upon 
 advertisements offering rewards. . . . The true view in a 
 case of this kind is that the person who makes the offer 
 shows by his language and from the nature of the trans- 
 action that he does not expect and does not require notice 
 of the acceptance apart from notice of the performance. 
 ... It has been argued that this is nudum 'pactum — that 
 there is no consideration. We must apply to the argu- 
 ment the usual legal tests. Let us see whether there is 
 no advantage to the defendants. ... It is quite obvious 
 that in the view of the advertisers a use by the public of 
 this remedy, if they can only get the public to have con- 
 fidence enough to use it, will react and produce a sale 
 which is directly beneficial to them. Therefore the 
 advertisers get out of the use an advantage which is 
 enough to constitute consideration." 
 
 Per Bowen, L.J. : " We were asked to say that this 
 advertisement was a contract too vague to be enforced. 
 The document itself is not a contract at all, it is only 
 an offer made to the public. ... It is also contended 
 that the advertisement is rather in the nature of a puff 
 or a proclamation than a promise or offer intended to 
 mature into a contract when accepted. . . . Was it
 
 b ADVERTISEMENTS 
 
 intended that the £100 should, if the conditions were 
 fulfilled, he paid? The advertisement says that £1000 
 is lodged at the hank for the purpose. Therefore it 
 cannot be said that the statement that £100 would be 
 paid was intended to be a mere puff. I think it was 
 intended to be understood by the public as an offer 
 wliich was to be acted upon. ... It was also said that 
 the contract is made with all the world — that is with 
 everybody ; and that you cannot contract with everybody. 
 It is not a contract made with all the world. There is 
 the fallacy of the argument. It is an offer made to all 
 the world ; and why should not an offer be made to 
 all the world which is to ripen into a contract with 
 anybody who comes forward and performs ^the condition ? 
 It is an offer to become liable to any one who, before 
 it is retracted, performs the condition ; and although the 
 offer is made to the world, the contract is made with that 
 limited portion of the public who come forward and 
 perform the condition on the faith of the advertisement. 
 It is not like cases in which you offer to negotiate, or 
 you issue advertisements that you have got a stock of 
 books to sell, or houses to let, in which case there is no 
 offer to be bound by any contract. Such advertisements 
 are offers to negotiate — offers to receive offers — offers to 
 chaffer, as I think some learned judge in one of the cases 
 has said. If this is an offer to be bound, it is a contract 
 the moment the person fulfils the condition. That seems 
 to me to be sense, and it is also the ground on which 
 all these advertisement cases have been decided during 
 the century ; and it cannot be put better than in 
 Willes, J.'s judgment in S^cnccr v. Harding : ^ ' In the 
 advertisement cases,' he says, 'there never was any 
 
 ' 5 C. P. 561, 563.
 
 CONTRACTS B'ORMED THROUQU ADVP:RTISEMENTH 7 
 
 doubt that the advertisement amounted to a promise to 
 pay the money to the person who first gave information. 
 The difficulty suggested was that it was a contract with 
 all the world. But that, of course, was soon overruled. 
 It was an offer to become liable to any person who, before 
 the offer should be retracted, should happen to be the 
 person who fulfilled the contract of which the advertise- 
 ment was an offer or tender. That is not the sort of 
 diffi.culty which presents itself here. If the circular had 
 gone on, " and we undertake to sell to the highest bidder," 
 the reward cases would have applied, and there would 
 have been a good contract in respect of the persons.' 
 As soon as the highest bidder presented himself, says 
 Willes, J,, the person who was to hold the vinculum juris 
 on the other side of the contract was ascertained, and it 
 became settled. Then it was said that there was no 
 notification of the acceptance of the contract. ... As 
 notification of acceptance is required for the benefit of 
 the person who makes the offer, the person who makes 
 the offer may dispense with notice to himself if he 
 thinks it desirable to do so, and I suppose there can be 
 no doubt that where a person, in an offer made by him 
 to another person, expressly or impliedly intimates a 
 particular mode of acceptance as sufficient to make the 
 bargain binding it is only necessary for the other person 
 to whom such offer is made to follow the indicated 
 method of acceptance. ... If I advertise to the world 
 that my dog is lost, and that anybody who brings the 
 dog to a particular place will be paid some money, are 
 all the police or other persons whose business it is to 
 find lost dogs to be expected to sit down and write me 
 a note, saying that they have accepted my proposal? 
 Why, of course, they at once look after the dog, and as
 
 O ADVERTISEMENTS 
 
 soon as they find the dog they have performed the 
 condition. ..." 
 
 Per A. L. Smith, L.J. : "... It was said there was 
 no person named in the advertisement with whom any 
 contract was made. That, I suppose, has taken place in 
 every case in which actions on advertisements have been 
 maintained from the time of Williams v. Carwardine^ 
 and before that down to the present day. I have nothing 
 to add to what has been said on that subject, except that 
 a person becomes a pc7'S07ia dcsignata and able to sue 
 when he performs the conditions mentioned in the 
 advertisement." 
 
 Expressions of Intention form no Contract. — C.^ filled 
 up a form issued by F., an insurance company, with 
 statements as to his condition of health and other matters. 
 C. at the same time made a proposal for an insurance on 
 his life, declaring that the statements in the form were 
 true, and to be taken as the bases of the contract. F. 
 accepted this proposal, but upon the terms that no 
 insurance should take effect till the premium was paid. 
 Before tender of the premium C. had an accident, which 
 materially altered the state of his health. F. then refused 
 to accept the premium or to issue a policy. Held, that the 
 nature of the risk having been altered at the time of 
 the tender of the premium, there was no contract binding 
 the company to issue a policy. Qiuvre, whether if there 
 had been no alteration in the risk the company would have 
 been legally entitled to refuse to accept the premium and 
 to issue a policy. Lord Esher : " All these statements 
 which are made preliminary to the moment of insurance 
 
 ' 4 B. & Ad. C21. 
 
 * Canning v. Farquhar, 16 Q. B. D. 727.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 9 
 
 are not considered by either party as contractual state- 
 ments, but as expressions of intention on the one side to 
 insure, on the other to accept the risk. That seems to me 
 to be the view at which we must arrive, looking at this 
 as a business transaction. Now, there is no case that 
 supports affirmatively this view, but it is supported nega- 
 tively by the fact that during all the years that life 
 insurance has been known and practised, there is no case 
 in the books, or known to' any one, in which an action 
 such as this has been maintained. These considerations 
 are conclusive, to my mind, that what was said was 
 preliminary to the contract or insurance, and was never 
 intended by either party to be a contract in itself." Lord 
 Lindley asked what was the effect of the negotiations at 
 the moment when the office communicated to C. that his 
 proposal had been accepted subject to payment of a certain 
 premium ? " It was urged on the part of C. that there 
 was then a complete contract binding the office on 
 payment or tender of the premium, to issue a policy of 
 insurance. It is true that there had been an acceptance 
 of C.'s offer, but he had not at this time assented to the 
 company's terms; and until he had assented to them 
 there was no contract binding the company. The com- 
 pany's acceptance of C.'s offer was not a contract, but a 
 counter-offer. . . . There was no contract before the tender, 
 and, the risk being changed, the company's offer could not 
 fairly be regarded as a continuing offer, which C. was 
 entitled to accept. His tender was in truth a new offer 
 for a new risk which the company were a^ liberty to decline." 
 
 Offer may he withdraion before Acceptance. — W.^ was 
 
 ' Wallace's case, In re MdropolUan Fire Insurance Co., 1900, 2 Ch. 
 671.
 
 10 ADVERTISEMENTS 
 
 a shareholder in a company C. By a reconstruction 
 agreement the C. company and its liquidators transferred 
 its good will and assets to the M. company, part of the 
 consideration for the transfer being that every member 
 of the C. company should, in respect of each share therein 
 held by him, " be entitled as of right to claim an allotment 
 of either a debenture bond or two ordinary shares in the 
 M. company." Claims had to be made in writing to the 
 M. company or to the liquidators of the C. company, 
 the latter of whom were to notify each member of the 
 C. company in writing the number of shares to which he 
 was entitled. The liquidators duly gave notice to W., 
 who addressed a claim to the M. company for ten ordi- 
 nary shares, agreeing to accept the same and to pay the 
 further moneys payable thereon when called upon. Before 
 any acceptance of the offer or the allotment of shares 
 subsequently made, W. wrote to the M. company with- 
 drawing his application. In the subsequent winding-up 
 of the M. company the liquidator of that company 
 sought to have W. retained on the list of contributories. 
 Held, that the document sent to W. was an application 
 which could be withdrawn by him before acceptance and 
 not on acceptance of a prior offer by the M. company, 
 and that he was not liable as a contributory. 
 
 Advertisement must contain Privity of Contract. — B.,* 
 a company promoter, formed a company with 96,000 
 shares of £1, of which 12,000 were to be appropriated to 
 the public at 12s. Qd. per share, free from further calls 
 B., in offering the 12,000 shares to the public, guaranteed 
 and promised to the hearers of these shares a minimum 
 
 ' Gerhard v. Batee, 2 E. & B. 477.
 
 CONTIIACTS FORMED TIIROUan ADVEUTISEMENTS 11 
 
 annual dividend of 33 per cent., payable at specified times. 
 G., confiding in the promise, became purchaser and hearer 
 of 2500 of the 12,000 shares at 12s. Qd. B. did not pay 
 any dividends, and in an action brought against him by G,, 
 the Court held that it did not lie, as " neither privity of 
 contract nor consideration appeared." (On a second count 
 G, was entitled to recover against B. as for a tort on the 
 ground of fraud.) Per Bowen, L.J. (discussing the decision 
 in the Carbolic Smoke Ball case) : " In Gerhard v. Bates, 
 which arose upon demurrer, the point upon which the 
 action parted was that the plaintiff did not allege that 
 the promise was made to the class of which alone the 
 plaintiff was a member, and that therefore there was no 
 privity between the plaintiff and the defendant." 
 
 Advertisement of Auction Sale not a Contract unless 
 announced as "without Reserve." —'N.,''- an auctioneer, 
 advertised in the London papers that certain brewing 
 materials, plant, and ofQcc furniture would be sold by 
 him at Bury St. Edmunds, on a certain day and two fol- 
 lowing days. H., a commission broker in London, having 
 a commission to buy the office furniture, went down to 
 the sale ; on the third day, on wliich the furniture was 
 advertised for sale, all the lots of furniture were with- 
 drawn. Upon which the plaintiff brought an action 
 acjainst the defendant to recover for his loss of time and 
 expenses. Held, that H. could not maintain the action, 
 since the advertisement of the sale was a mere declaration, 
 and did not amount to a contract with any one who might 
 act upon it, nor to a warranty that all the articles adver- 
 tised would be put up for sale. Blackburn, J. : " (To say 
 that) the advertisement amounted to a contract by the 
 
 > Harris v. Nickerson, 8 Q. B. 287.
 
 12 ADVERTISEMENTS 
 
 defendant with anybody that should act upon it, that all 
 the things advertised would be put up for sale, ... is a 
 startling proposition, and would be excessively incon- 
 venient if carried out. It amounts to saying that any 
 one who advertises a sale by publishing an advertisement 
 becomes responsible to everybody who attends the sale 
 for his cab liire or travelling expenses." Qnain, J. : 
 " When a sale is advertised as without reserve, and a lot 
 is put up and bid for, there is ground for saying, as was 
 said in Warloiv v. Harrison, that a contract is entered 
 into between the auctioneer and the best bond fide bidder ; 
 but that has no application to the present case. Here the 
 lots were never put up, and no offer was made by the 
 plaintiff nor promise made by the defendant, except by 
 his advertisement that certain goods would be sold. It is 
 impossible to say that that is a contract with everybody 
 attending the sale, and that the auctioneer is to be liable 
 for their expenses if any single article is withdrawn." 
 
 H,,^ an auctioneer, advertised that he would sell by 
 auction, " The property of a gentleman, without reserve — 
 Janet Pride." W. attended the sale, and became the 
 highest bidder. The owner of the horse then bid higher, 
 whereupon W., finding that the last bidder was the owner, 
 refused to make a further bid, and H. knocked down the 
 mare to its owner ; but it did not appear that H. knew 
 the last bidder was the owner. Held, that H. was Liable 
 to W. for having undertaken to sell the horse without 
 reserve, and had not done so. JMartin, B., dealing with 
 auction sales " without reserve," laid down : " The 
 highest hond fide bidder at an auction may sue the 
 auctioneer as upon a contract that the sale shall be 
 without reserve." 
 
 ' Warlow V. Harrison, 1 E. & E. 295.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 13 
 
 Attc/nipt to ascertain whether an Offer can he obtained is 
 not enough to form a Contract. — H.^ sent out a circular as 
 follows : " Wo are instructed to offer to the wholesale 
 trade for sale by tender the stock-in-trade of A., amount- 
 ing, etc., and which will be sold at a discount in one lot ; 
 payment to be made in cash ; the tenders will be received 
 and opened at our offices," etc. Held, that this did not 
 amount to a contract or promise to sell to the person who 
 made the highest tender. Willes, J. : " . . . Eeliance is 
 placed on the cases as to rewards offered for the discovery 
 of an offender. In those cases, however, there never was 
 any doubt that the advertisement amounted to a promise 
 to pay the money to the person who first gave information. 
 The difficulty suggested was that it was a contract with 
 all the world. But that, of course, was soon overruled. 
 It was an offer to become liable to any person who, before 
 the offer should be retracted, should happen to be the 
 person to fulfil the contract of which the advertisement 
 was an offer or tender. That is not the sort of difficulty 
 which presents itself here. The question is, whether 
 there is here any offer to enter into a contract at all, or 
 whether the circular amounts to anything more than a 
 mere proclamation that the defendants are ready to chaffer 
 for the sale of the goods and to receive offers for the 
 purchase of them. ... It is a mere attempt to ascertain 
 whether an offer can be obtained within such a margin as 
 the sellers are willing to adopt." 
 
 General Words do not amount to a Contract. — In 
 Weehs v. Tybald^ defendant discussed with plaintiff's 
 father the desirability of a marriage between his daughter 
 
 * Spencer v. Harding, 5 C. P. 5G3. 
 2 Noy, 11.
 
 14 ADVERTISEMENTS 
 
 and the plaintiff. He " affirmed and published " that he 
 would give £100 to the person who married his daughter 
 with his consent, and invited plaintiff to his house to woo 
 the girl. Plaintiff married the girl, and sued defendant 
 for the £100 he had promised. The Court held that the 
 action did not lie, for " affirmed and published " did not 
 " make words that include a promise." " It is not averr'd 
 nor declar'd to whom the words were spoken, and it is 
 not reason that the defendant should be bound by such 
 general words spoken to excite suitors." 
 
 In 1873 P.,^ a father, prior to the marriage of his 
 daughter, wrote to F., the intended husband : " You are 
 of course, aware that with my large family Eliza will 
 have little fortune. She will have a share of what I 
 leave after the death of her mother, whom I wish to leave in 
 comfortable independence if I should leave her a widow." 
 F. accepted the letter as giving him some rights, and the 
 marriage took place. P. afterwards acquired a large 
 fortune, his wife having predeceased him. By his will he 
 left a legacy of £2000 to the daughter, and gave the 
 residue of his estate equally between six of his other 
 seven children. F. and his wife claimed by virtue of the 
 letter to be entitled to an equal eighth share of the 
 father's estate. Held, (1) that the letter did not constitute a 
 contract by P., but was merely an expression of his inten- 
 tions ; (2) that if it were a contract, it was an obligation to 
 leave not an equal eighth share, but some portion or share 
 of his estate to the daughter, and was fulfilled by the legacy. 
 
 Ferformance of Conditions in Advertisement amounts 
 to a Contract. — C.^ advertised that he would give a reward 
 
 ' Farina v. Fickui', 1900, 1 Ch. 331. 
 
 • Williams v. Carwardine, 4 B. & Ad. 621.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 15 
 
 of £20 to any person who should give information leading 
 to the discovery of the murder of C.'s brother. W. 
 appeared to have been at a house with the deceased on 
 the night he was supposed to have been murdered, but, 
 after the inquest, when examined before the magistrates, 
 did not give any information which led to the apprehension 
 of the real offender. The inquest was held on April 13- 
 19 ; on April 25 C. issued the advertisement. Two 
 persons were tried for the murder, and acquitted. Soon 
 after W. was severely beaten by X, and, believing that 
 she had not long to live, and to ease her conscience, she 
 made a voluntary statement which led to the subsequent 
 conviction of X. It was contended for C. that as W. was 
 not induced by the reward to give evidence, the law 
 would not imply a contract to pay the money. The judge 
 found that W., having given the information which led to 
 the conviction of the murderer, had performed the con- 
 dition on which the £20 was to become payable. The 
 jury found that W. was not induced by the offer of the 
 reward, but by other motives. Held, on appeal, that W. 
 could recover, though she was influenced by other motives. 
 Per Littledale, J. : " The advertisement amounts to a 
 general promise to give a sum of money to any person 
 who shall give information which might lead to the 
 discovery of the offender. The plaintiff gave that infor- 
 mation." Park, J. : " There was a contract with any 
 person who performed the conditions mentioned in the 
 advertisement." 
 
 A ^ gave a letter of credit to B, authorizing him to 
 " draw upon the bank at six mouths' sight to the extent 
 of £15,000 sterling, and such drafts I imdertake duly to 
 honour on presentation. This credit will remain in force 
 
 ' Ex -parte Asiatic Banking Co., 2 Ch. A. 391.
 
 16 ADVERTISEMENTS 
 
 for twelve months from this date." C held for value bills 
 drawn on A ou the strength of this letter. A stopped 
 payment before the bills were presented for acceptance, 
 and B was indebted to A in an amount exceeding what 
 was due on bills. C claimed to prove, in the winding up 
 of A's affairs, for the amount of the bills, one of the 
 grounds being that " the letter shown to the person 
 advancing money constituted, when money was advanced 
 on the faith of it, a contract by the bank (A) to accept 
 the bills." Cairns, L.J., adopted this view, holding that 
 the letter amounted to a "general invitation," and that 
 the acceptance of the offer in the letter constituted a 
 binding legal contract. 
 
 Rendering of Services set out in Advertisement amounts 
 to a Contract. — P.^ instructed his printers to print 
 handbills, offering a reward of £25 to the person who 
 should give information to X, a police superintendent, 
 leading to the conviction of the perpetrator of a certain 
 crime. G., who was a police officer, before the instructions 
 to print the handbills had been given by P., had com- 
 municated the desired information to C, another officer, 
 with instructions to forward it to X, C. thereupon com- 
 municated the information, in accordance with the rules 
 of the force, to L. (who was his immediate superior officer). 
 On the same evening L. sent on the information to X, 
 whom it reached in the course of the following morning, 
 after the time when the handbills had been delivered to 
 and had been distributed by him to the neighbouring 
 police-station. Held, that G., the importance of whose 
 information was admitted, was entitled to the reward, the 
 messengers C. and L., through whom such information was 
 
 ' Gibhom v. Proct4)r, G4 L. T. 594.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 17 
 
 conveyed to X, being G.'s agents to convey, and not X's 
 asents to receive. 
 
 Fulfilment of Advertisement Condition a Question of 
 Fact. — W./ whose shop had been broken into, published 
 a handbill, stating that watches and jewellery described 
 therein had been stolen from his shop, and that a reward 
 would be given to any person who would give such informa- 
 tion as should lead to the apprehension and conviction of 
 the thief or tliieves. The burglary was committed on 
 February 6 ; on the 14th, E. brought one of the watches 
 to the shop of T., a watchmaker, who gave information to 
 the tradesman, upon which E. was taken into custody 
 as a receiver. While in custody he told the police that 
 the thieves would be found at a certain house, where two 
 of them were apprehended, and the third subsequently, 
 and the three were convicted of the burglary. At the 
 trial of the action brought by T. for the reward, the police 
 swore that the information given by E. was not the means 
 of the thieves being apprehended, as the police were 
 already watching the shop. The jury found that the 
 thieves were apprehended in consequence of E.'s informa- 
 tion. Held, that T.'s information was not too remote 
 from the apprehension and conviction of the thieves, and 
 that it was properly left to the jury whether it led to their 
 apprehension and conviction within the meaning of the 
 handbill. 
 
 Offer in Advertisement must he acted upon. — The 
 parents ^ of a stolen child advertised a reward to the person 
 
 » Tame v. Walker, 8 B. & S. 314. 
 = Fallich V. Barher, 1 M. & S. 108.
 
 18 ADVERTISEMENTS 
 
 wlio would give information where the child was so that 
 it might 1)0 restored to its parents. F. communicated 
 to B. her suspicion where the child was, "in order to 
 put the matter into his hands for his benefit if he chose 
 to run the risk," and the child was afterwards restored 
 to its parents by the exertions of B., who acted upon F.'s 
 communication. Held, that F. could not recover from 
 B., to whom the award had been paid, either the whole 
 or any portion of it. 
 
 Beioarcl not due vjherc Criminal surrenders. — G.,* 
 having been guilty of forgery, absconded. W. published 
 a handbill, offering a reward of £200 " to any person or 
 persons giving such information to A., superintendent 
 of police, Dewsbury, or to H., superintendent of police, 
 Wakefield, as will lead to the apprehension of the said G." 
 Later on, at Exeter, a man (who was G.) said to B. (who 
 was chief constable), " You hold a warrant for me : I am 
 wanted for forgery." B. searched a police gazette, and 
 finding a notice therein, " W. G. wanted for forgery," 
 telegraphed to A., "Do you hold a warrant for the 
 apprehension of W. G. for forgery ? " Eeceiving an 
 answer, " I still hold warrant for G., and should like 
 him to be apprehended," B. then apprehended and 
 charged G., who was ultimately convicted. B. sued W. 
 for the reward. In answer to the questions left to them, 
 the jury found that G. was not in custody before the 
 telegram was sent ; but they were unable to agree as to 
 whether or not he had given his name before it was sent. 
 Held, that B. was not entitled to claim the reward — the 
 apprehension of G. not being the consequence of B.'s infor- 
 mation, but of the criminal surrendering himself to justice. 
 
 » Bml V. Wol-cfieU Banlc, i C. P. D. 1.
 
 CONTUACTS FORMED THROUGH ADVERTISEMENTS 19 
 
 Reward duo even where Confession Vohmtarij. — M.^ 
 advertised a reward of £20 to any person who would 
 give such information as should lead to the apprehension 
 and conviction of the parties who had robbed and set firo 
 to their premises. S. took B. into custody on suspicion 
 of being concerned in the offence. B. offered to make 
 certain disclosures if furnished with something to eat and 
 drink. S. communicated this offer to T., a sub-inspector 
 of police, who took B. into a pul)lic-house and gave him 
 refreshment, whereupon B. made a voluntary confession 
 which resulted in his conviction and transportation for 
 the crime in question. Held, that S. was entitled to the 
 reward. 
 
 Arrest of Criminal heforc 'Reward advertised. — K.^ 
 issued an advertisement offering a reward of £10 to any 
 one who would give such information as should lead to 
 the recovery of a horse and gig stolen at "Woolwich, and 
 the apprehension of tlie thief. N. apprehended a boy 
 (in Bedfordshire) having a horse and gig under circum- 
 stances of suspicion. Discovering that the boy came 
 from Woolwich, N. gave notice to his superintendent, 
 who wdthin a reasonable time gave notice to K., the boy's 
 master. Meantime, after the boy's {apprehension, but 
 before the master received notice thereof, K. had issued 
 his advertisement offering the reward. N. brought an 
 action for the reward, and K.'s plea, charging N. with 
 a breach of duty in neglecting to inform K. of the boy's 
 apprehension until after the issuing of the advertisement, 
 was held to be no answer to an action for the reward. 
 
 ' Smith V. Moore, 1 C. B. 438 ; 9 Jiir. 352. 
 - Neville v. Kelly, 12 C. B. (N. 8.) 740.
 
 20 ADVERTISEMENTS 
 
 Information must he given loith a View to its being acted 
 on. — B.^ offered a reward of £100 for " such information 
 as should lead to the early apprehension " of the person 
 who had stolen a parcel containing bank-notes, E., the 
 thief, passed one of the notes at the shop of L., whose 
 suspicions were aroused. L. consulted C, and both 
 discussed the matter with their neighbours. L. proposed 
 to go for a constable, but S., who was present, said he 
 had better go, and accordingly went and brought back 
 the constable. The constable, upon the information he 
 received, was enabled to find out and apprehend E. To 
 an action brought for the reward, B. replied (1) that L.'s 
 communication to C. did not entitle him to recover, as 
 it was not made either to the party offering the reward 
 or an agent of his; (2) that the information to the 
 constable, being made jointly by L. and C, was not such 
 information by L. alone as led as the apprehension of E., 
 and that C. should have been joined in the action as 
 co-plaintiff. On the first issue, the judge at the trial 
 directed the jury to find for L., which they accordingly 
 did. The jury found that the information given to the 
 constable by S., and which led to the apprehension of the 
 criminal, was the joint information of L. and C. The 
 second issue was thereupon entered for defendant. It was 
 held that the jury came to a proper verdict on the second 
 issue. The head-note runs : " Held, that the information 
 must be given, not in mere conversation, but with a view 
 to its being acted upon, either to the person offering the 
 reward, or to his agent, or to some person having authority 
 by law to apprehend the criminal. And where the com- 
 munication was first made by L. to C. in conversation, 
 but the information was afterwards communicated to a 
 
 > Lockhart v. Barnard, 14 M. & W. 674.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 21 
 
 constable jointly by L. and C, it was held that they both 
 ouglit to have joined in the action." 
 
 Mere Apprehension not enough to earn Reward. — E.,^ 
 a military officer who had been robbed of some jewels, 
 issued a handbill to the effect that the sum of £30 " will 
 be paid by E. on recovery of the property, and conviction 
 of the offender, or in proportion to the amount recovered." 
 F., a soldier, informed his sergeant that V>. had admitted 
 to him that he was the party who committed the robbery, 
 and the sergeant informed the police. Four days after- 
 wards T., a policeman, apprehended the offender, and, the 
 jury found, " was most active and mainly instrumental in 
 procuring the recovery of the property and the conviction 
 of the offender." Held, that T. was not the party entitled 
 to the reward. Semhlo, per Tindal, C.J., and Cresswell, J., 
 that F. was the party entitled. Qucere, per Coltman, J., 
 whether F. and T. might not have jointly sued. 
 
 Giving Information a Good Consideration. — D.^ adver- 
 tised a reward of £50 to whoever could give such infor- 
 mation as would lead to the conviction of a felon. E., 
 who was a police-constable in the district where the 
 felony was committed, gave such information and collected 
 evidence. Held, that E.'s having given the information 
 was a good consideration for a promise by defendant to pay 
 the reward. 
 
 Person giving First Information entitled to Reward. — 
 W.^ was robbed on the highway of bank-notes to the 
 
 1 Tliatcher v. England, 15 L. J. C. P. 241. 
 " England v. Davuhon, 11 Ad. & E. 859. 
 ^ Lancaster v. Walsh, 4 M. & W. 16.
 
 22 ADVERTISEMENTS 
 
 amount of £90. He then issued a handbill, in which it 
 was stated : " Whosoever would give information whereby 
 the same mit^ht be traced should, on conviction of the 
 parties, receive a reward of £20." Held, that the only- 
 person entitled to the reward was he who first gave infor- 
 mation by which the notes were traced to the robbers so 
 as to ensure their conviction ; and that it was not neces- 
 sary that such information should be communicated to 
 the party robbed if it was given to a person authorized to 
 receive it and to act upon it in the apprehension of the 
 offenders. 
 
 Bailway Time-Tahle amounts to Contract with Persons 
 acting on it. — The defendants' ^ line communicated with 
 the line of another railway company at M. Arrange- 
 ments were made whereby the defendants' trains starting 
 from P. at 7 p.m. and going to M., there met a train of 
 the other company, running from M. to H., by which 
 passengers from P. to H. were forwarded. The defendant 
 company published monthly time-tables, in which they 
 stated, in the usual way, that the 7 p.m. train from P. 
 carried to H. At the end of a month, after the defend- 
 ants' time-tables for the ensuing month were prepared 
 in this form and printed, but before they were published, 
 the other company discontinued the train from M. to H. 
 The defendant company made no alteration in their time- 
 tables already printed, but published and circulated them 
 after they knew that there was no such train. D., having 
 seen one of these time-tables, made his arrangements on 
 the faith of it to go from P. to H, by the 7 p.m. train ; 
 he came to P. in time, went to the station, and then for 
 the first time learned that he could go no further than M. 
 
 ' Denton v. Great Nortliern Railway, 5 E. & B. 8G1.
 
 CONTRACTS FORMED THROUGH ADVERTISEMENTS 23 
 
 by that train. He was delayed on his journey, and sus- 
 tained damage, for which he sued the defendant company. 
 Held, he was entitled to recover on the ground that the 
 circulation of the time-tables amounted to a represen- 
 tation that there was a train, which was false to the know- 
 ledge of those making it, and calculated to induce the 
 plaintiff to act as he did. Held also by Lord Campbell, 
 C.J., and Wightmau, J., that the time-table amounted to 
 a contract on behalf of the company with those who 
 should come to the station, to forward them as stated in tlie 
 table. Crompton, J. : "I entertain some doubt as to how 
 far the liability of the defendants can be rested upon 
 contract. I do not mean to say that the facts do not 
 establish a contract. It is very like the case of an 
 advertisement offering a reward ; but in that case there 
 is the consideration of work done, and I never could see 
 why an action for work done would not in such a case 
 lie. It would be difficult to distinguish this case from 
 an advertisement at a shop, offering to sell goods upon 
 certain terms, or an advertisement of the sailing of a 
 particular ship for a particular port." 
 
 Mere Disclaimer of Bes'ponsihility for Delay no Release 
 from Contract. — L.^ booked at the L. & N. W. station at 
 Liverpool for Scarborough via Leeds and York. From 
 Leeds to York the journey was over the lines of other 
 companies. The ticket referred to the conditions in the 
 published time-bills of the defendant company, which 
 stated: "The granting of tickets to passengers off the 
 company's line is an arrangement made for the convenience 
 of the public ; but the company do not hold themselves 
 responsible for any delay, detention, or other loss or 
 » ie BlawU v. L. & N. W. Ruihoay Co., C. P. D. 287.
 
 24 ADVERTISEMENTS 
 
 injury whatsoever arising off their lines, or from the acts 
 or defaults of the other parties, nor for the correctness of 
 the times over lines of other companies, nor for the arrival 
 of this company's own trains in time for the nominally 
 corrcsponchng train of any other company or party." L. 
 travelled by a train which reached Leeds too late to pro- 
 ceed to York, and when he did get to York he found that 
 the train for Scarborough, which he should have caught, 
 was gone. He therefore took a special train to Scar- 
 borough, In a county court action the judge held that 
 there was a contract on defendants' part to use diligence 
 to ensure punctuality, and that upon the facts there had 
 not been such diligence used. He also held that the 
 plaintiff was entitled to recover the cost of the special 
 train on the authority of the dictum of Alderson, B., in 
 Hamlin v. Great NortJiern Bailway (26 L. J. (Ex.) 22), that 
 " where one party to a contract does not perform it, the 
 other may do so for him as near as may be, and charge 
 him for the expense incurred in so doing." Held, that 
 the judge was wrong in acting on the dictum above men- 
 tioned as an absolute rule. The principle is that if one 
 party does not perform his contract the other may do so 
 for him as reasonably near as may be, and charge him for 
 the reasonable expense incurred in so doing.
 
 CHAPTER II 
 
 MISREPKESENTATION IN ADVERTISEMENTS, AND ITS LEGAL 
 CONSEQUENCES 
 
 Although words of general praise involve no legal 
 responsibility, the representations made in advertisements, 
 in so far as they relate to specific facts, or in so far as they 
 are material to any agreement that may arise therefrom, 
 are binding on the advertiser. The maxim. Simplex com- 
 mendatio noii ohligat, applies to the mere description of 
 articles, but misrepresentation as to material and specific 
 facts, even though innocent, may be fatal to a contract of 
 sale, or give the purchaser a remedy for breach of war- 
 ranty. Innocent misrepresentation is a misstatement of 
 fact made without knowledge of its untruth and without 
 intention to deceive, which either induces a party to enter 
 a contract, or is a condition or term of the contract. A 
 man is generally safe in stating what he believes to be 
 true ; still more is he safe in giving his opinion as an 
 opinion for what it may be worth. Moreover, passive 
 acquiescence in the self-deception of others is not fraud. 
 But the fact that a public advertisement is not addressed 
 to any one in particular, or that it cannot mislead people 
 of ordinary intelligence or judgment, does not affect its 
 legal consequences should it be material to the contract 
 or wrong that ensues. " It is now well established," said
 
 26 ADVERTISEMENTS 
 
 Cockburn and Quain, L.JJ., in Swift v. Winterbotham} 
 " that in order to enable a person injured by false repre- 
 sentation to sue for damages, it is not necessary that the 
 representation should be made to the plaintiff directly ; it 
 is sufficient if the representation is made to a third person 
 to be communicated to the plaintiff, or to be communicated 
 to a class of persons of whom the plaintiff is one, or even 
 is made to the public generally with the view to its being 
 acted on, and the plaintiff as one of the public acts on 
 it and suffers damage thereby." "It may be," observed 
 Hawkins, J., in the Smoke Ball case, " that of the many 
 readers of the advertisement very few of the sensible ones 
 would have entertained expectations that in the event of 
 the smoke ball failing to act as a preventive against the 
 disease the defendants had any intention to fulfil their 
 attractive and alluring promise. But it must be remem- 
 bered that such advertisements do not appeal so much to 
 the wise and thoughtful as to the credulous and weak 
 portions of the community; and if the vendor of an 
 article, whether it be medicine smoke or anything else, 
 with a view to increase its sale or use, tliinks fit publicly 
 to promise to all who buy or use it that, to those who 
 sliall not find it as surely efficacious as it is represented 
 by him to be, he will pay a substantial sum of money, he 
 must not be surprised if occasionally he is held to his 
 promise." 
 
 Wliere a contract is based on fraud, the elements that 
 constitute fraud are (1) the false representation of facts 
 must be made by one party to the contract; (2) such 
 representation must be made either with a knowledge of 
 its falsehood, or {2a) without an honest belief in its truth; 
 (3) the motive for making such representation must be 
 
 » 8 Q. B. 241.
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES 27 
 
 that it should (4) deceive tlie other party to the contract, 
 and (5) l)e acted upon by the other party; (G) .sucli a 
 misrepresentation must, in fact, deceive the other party; 
 (7) such misrepresentation nnisb liave inchiced the contract. 
 A fraudulent misrepresentation in an advertisement, even 
 where it leads to no contract, may be ground of an action 
 for deceit,^ where A, advertising tliat he was going to let 
 a farm, althougli ho knew he had no power to let the 
 property, was hold guilty of fraudulent misrepresentation 
 for which an action would lie ; and an advertisement of 
 a fraudulent character is admissible in evidence against 
 the persons charged with fraud.^ Wlien A entered into 
 an agreement with B under a false name, and concealed 
 his identity so as to induce B to believe he was dealing 
 with a person other than A, such a misrepresentation 
 entitled B to repudiate the contract within a reasonable 
 time after discovering the false identity.^ Where the 
 false representation is honestly believed by the person 
 making it, though on most insufficient grounds, as where 
 it is made through carelessness or without realizing the 
 importance and significance of the words used, it is 
 innocent but not fraudulent misrepresentation. 
 
 A statement of specific and material fact as to the 
 quality of an article contained in an advertisement 
 amounts to a warranty the breach of which gives a right of 
 action.* When innocent misrepresentation is material to 
 or induces a contract, it affords ground for cancelling the 
 contract or for refusing specific performance of it, but not 
 for damages. This rule, which now applies to contracts 
 
 » RicJiardsoH v. Slheder, 9 Q. B. 34. 
 - Lucas V. Oodioin, 4 Scott, 503. 
 => Gordon v. Sti-eft, 1899, 2 Q. B. C41. 
 * Shepherd v. Kain, 5 B. & Aid. 241.
 
 28 ADVERTISEMENTS 
 
 of every description, was first applied in Redgrave v. 
 Ilurd,^ wliere it was held that if A induces B to enter 
 into an agreement by a material representation which is 
 untrue, it is no defence, when B seeks to rescind the 
 contract, to j)lead that B had the means, and might with 
 reasonable diligence have discovered it was untrue. 
 Where an advertisement was headed, " Money on easy 
 terms," and it led to an agreement for repaying money on 
 severe terms, it was held that the onus lay upon the 
 advertiser to show that he had removed the impression 
 produced by the advertisement before the agreement was 
 signed.^ 
 
 A's description in an advertisement of B as " a most 
 desirable tenant," when, in fact, B was in arrears with his 
 rent, was held to amount to misrepresentation on which 
 a contract could be set aside, and " not a mere flourishing 
 description." ^ The loose opinion of an auctioneer as to 
 the quality of the thing sold is no misrepresentation.^ It 
 may be classified among the commendatory expressions 
 such as men habitually use in order to induce others to 
 enter a bargain, and in regard to which a certain latitude 
 is permitted. But it is not always easy to discern the 
 exact limit of such latitude. Lord Justice Bowen ^ de- 
 scribed the border-line between a mere expression of 
 opinion and a statement of fact in the following terms : 
 " In considering whether there was a misrepresentation, I 
 will first deal with the argument that the particulars only 
 contain a statement of opinion about the tenant. It is 
 material to observe that it is often fallaciously assumed 
 ' 20 Ch. D. 1. 
 
 « Moorhouse v. Woolfe, 46 L. T. 374. 
 
 ' Smith V. Land and House Property Co., 28 Ch. D. 7. 
 
 * Scott v. Hanson, 1 Sim. 13. 
 
 ^ Smith V. iMnd and House Property Co., 28 CL. D. 7.
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES 29 
 
 that a statement of opinion cannot involve the statement 
 of a fact. In a case where the facts are equally well 
 known to both parties, what one of them says to the other 
 is frequently nothing but an expression of opinion. The 
 statement of such an opinion is, in a sense, a statement of 
 fact about the condition of a man's mind, but only of an 
 irrelevant fact, for it is of no consequence what the 
 opinion is. But if the facts are not equally well known 
 to both sides, then a statement of opinion by one who 
 knows the facts involves very often a statement of a 
 material fact, for he impliedly states that he knows facts 
 which justify his opinion." If A advertises for sale 
 B's pianos, knowing that he has none in his possession, 
 and that B has refused to supply him with them, he 
 is within his legal rights, for he might have otherwise 
 acquired the instruments, and B, before he can sustain a 
 charge of fraudulent misrepresentation in such an adver- 
 tisement, must show that the damage he has sustained 
 is attributable to the misrepresentation.^ This case is 
 authority also for the proposition that an advertiser's 
 willingness to sell an article not in his possession, and 
 with which the maker has refused to supply him, is no 
 misrepresentation. 
 
 To he Actionable, Misrepresentation in Advertisement 
 must not only he Untrue^ hut cause Damage. — A.,^ manu- 
 facturers of pianos in London, supplied W., a furnishing 
 contractor in Manchester, with two pianos of a certain 
 class on January 26 and July 15, 1895 ; a piano of 
 another class on April 25 ; two pianos of a third class on 
 April 25 and May 5. The two last pianos formed part of 
 
 » Per Kekewicb, J., in Ajdlo v. Wonley, 1898, 1 Ch. 275.
 
 30 ADVERTISEMENTS 
 
 an order for twelve pianos of the same class, but A. 
 refused to supply W, with the remainder of the order on 
 the ground that W. had advertised the sale of the pianos 
 at too low a price. A.'s refusal to supply him with 
 further pianos became known to W. in August or Sep- 
 tember, 1895. In February, 189G, W. advertised in 
 certain papers in Lancashire that he would sell a new 
 piano of A.'s manufacture of a specified character at the 
 price at which A. had supplied the same to the trade. 
 Whereupon other dealers gave up dealing with A. W. 
 continued the advertisement after he ceased to have in 
 stock any pianos of A.'s manufacture, and after A. had 
 refused to supply him, in the expectation that he would 
 be able to acquire A.'s pianos from other dealers. A. 
 then applied to the courts for an injunction to restrain 
 W. from continuing the advertisement, but the court 
 refused to grant it. Per Kekewich, J. : " The defendant 
 could not get from the plaintiffs directly any of their new 
 pianos ; but in my opinion he might have acquired new 
 pianos of theirs otherwise upon terms which would not 
 indeed enable him to sell at a profit, but which need not 
 have involved a ruinous loss. If, then, the defendant had 
 seen fit to advertise that he was prepared to supply new 
 pianos of the plaintiffs' manufacture ... I think that he 
 would have been within his legal rights." It was said 
 that the advertisement actually published contained a 
 misrepresentation, in that such pianos as were described 
 therein were not in the possession of the defendant at the 
 dates when the advertisement appeared. " In my judg- 
 ment," observed Kekewich, J., " this misrepresentation 
 does not make the advertisement fraudulent, and in order 
 that a misrepresentation may be actionable, it must not 
 merely be untrue, but cause damage to the person who
 
 MISREniESENTATION, AND ITS LEGAL CONSEQUENCES 31 
 
 complains of it. The question tiien arises, Is the damage 
 complained of by the plaintiffs attributable to the mis- 
 representation of fact contained in the advertisement ? 
 It appears to me that this question must be answered in 
 the negative ; for an advertisement such as, in my opinion, 
 the defendant might have legally issued, would have pro- 
 duced precisely the same consequences, and been followed 
 by the same damaging results. No decision in support of 
 such an action as the present was cited in argument. 
 What was mainly relied on by the plaintiffs' counsel was 
 the passage from the judgment delivered by Bo wen, L.J., 
 in the Mogul StcamsJiij) Co. v. McGregor : ' No man, whether 
 trader or not, can justify damaging another in his com- 
 mercial business by fraud or misrepresentation. . . .' In 
 my opinion," continued Kekcwich, J., "the present case 
 does not fall within those in which damage is caused by 
 misrepresentation within the meaning of the Lord Justice. 
 The class of cases which he probably had in his mind 
 was that of which Batdiffe v. Evans is an example — 
 namely, where the defendant has intentionally published 
 an untrue statement regarding the plaintiffs' business, and 
 thereby has, in the ordinary course, caused damage to the 
 plaintiff. Here the untrue statement related to the 
 defendant's own business, and I may point out that, if it 
 affected the plaintiffs' business at all, it did not affect it 
 exclusively, for . . . every music-dealer in the neighbour- 
 hood of Manchester who happened at the time to have a 
 piano of plaintiffs' in his shop, suffered damage as well as 
 the plaintiffs. However, for the reasons already given, I 
 think the damage was not caused by the misrepresentation 
 contained in the advertisement, and consequently the 
 action fails, and must be dismissed."
 
 32 ADVERTISEMENTS 
 
 Anctioneer's Loose Opinion no Misrepresentation. — A^ 
 described a piece of land, in the particulars of sale, as 
 "uncommonly rich water-meadow land," and B bought 
 the land. The meadow, on account of its high level and the 
 low level of the adjoining land, was imperfectly watered. 
 B pleaded that it was misrepresentation to describe it in 
 those terms, when, in point of fact, it was imperfectly 
 watered. Held, that the words " uncommonly rich " 
 referred to the quality of the land, and not to its watering, 
 and in that sense it professed to be nothing more than the 
 loose opinion of an auctioneer or vendor as to the obvious 
 quality of the land, upon which the vendee ought not to 
 have placed any reliance. 
 
 Description of F. in Advertisement as a Desirable 
 Tenant, when F. was in Arrears loitli Ms Rent, amounts to 
 Misrepresentation. — In August, 1882, S.^ put up a hotel 
 for sale, stating in the particulars that it was " let to F., a 
 most desirable tenant, at a rental," etc. M. bought the 
 property on behalf of defendants. Before completion F. 
 became insolvent, and M. refused to complete. S. was 
 sued for specific performance. Denman, J., held that 
 there was a material misrepresentation in regard to F., 
 and that the contract had been entered into in reliance 
 upon it. Held, on appeal, (1) that the description of F. 
 as a most desirable tenant was not a mere expression of 
 opinion, but contained the implied assertion that the 
 vendor knew of no facts leading to the conclusion that he 
 was not; (2) that F. was not a desirable tenant to the 
 knowledge of S. ; and (3) that there was a misrepresentation. 
 Per Bowen, L.J. : " In considering whether there was a 
 
 ' Scott V. Hani^nn, I Sim. 13. 
 
 * Smith V. JmiuI and Hou^e I'ropi rty Co., 28 Cb. D. 7.
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES 33 
 
 misrepresentation, I will first deal with the argument tliat 
 the particulars only contained a statement of opinion 
 about the tenant. It is material to observe that it is often 
 fallaciously assumed that a statement of opinion cannot 
 involve a statement of fact. In a case where the facts are 
 equally well known to both parties, what one of them says 
 to the other is frequently notliing l)ut an expression of 
 opinion. The statement of such an opinion is, in a sense, 
 a statement of fact about the condition of the man's own 
 mind, but only of an irrelevant fact, for it is of no con- 
 sequence what the opinion is. But if the facts arc not 
 equally well known to both sides, then a statement of 
 opinion by the one who knows the facts involves very 
 often a statement of a material fact, for he impliedly 
 states that he knows facts which justify his opinion." 
 
 Advertise!' hound hy the Impression produced hj the 
 Advertisement. — M.,^ a farmer, saw an advertisement issued 
 by W., a money-lender. The advertisement was headed 
 " Money on easy terms," and contained a statement that 
 money would be advanced on note of hand to, among 
 others, farmers on very easy terms, and on reversions, 
 etc., at 5 per cent. No other rate of interest was men- 
 tioned in the advertisement. M. went to W.'s office, and 
 applied for a loan of £100. W.'s agent told him the rate 
 of interest would be 5 per cent., and after negotiations M. 
 (who thought that a rate of 5 per cent, demanded by his 
 solicitors was too Mgh, and had therefore gone to W.) 
 agreed to pay 4^. He executed a bill of sale, in the beUef 
 that it was to secure £100, with interest at 4J per cent, 
 by weekly instalments. The bill of sale was, in fact, a 
 security for the repayment of £150 by weekly instalments 
 
 ' Moorhouse v. WooJfe, 46 L. T. iJ74. 
 
 D
 
 3-1 ADVERTISEMENTS 
 
 of £2 lOs. M. brought an action to set aside the bill of 
 sale. Held, that where a man represents to the public by 
 advertisement that he will lend money on easy terms, and 
 afterwards lends it on very hard terms, the onus lies upon 
 him to show that he has removed from a borrower's mind 
 the impression produced by such representation, and 
 clearly explained to him the terms on which the loan has 
 been made. On the evidence the Court believed M.'s 
 statement, and set aside the bill of sale. 
 
 Contract rescinded if Material Bc/prcscntation in Adver- 
 tisement he Untrue. — E.,* a solicitor, published in the Lavj 
 Times an advertisement headed " Law partnership," stating 
 that the advertiser, an elderly solicitor of moderate prac- 
 tice, with extensive connections, shortly retiring and having 
 no successor, would first take as partner an efficient lawyer 
 who would not object to purchase the advertiser's suburban 
 residence, value £1600. H., who answered the advertise- 
 ment, was told by E. that the business brought in ^bout 
 £300 a year. A subsequent interview was arranged to 
 show H. the amount of business done for the last three 
 years. E. then produced three summaries, showing that 
 the business amounted to not quite £200 a year. When H. 
 asked how the difference between the £300 and the £200 
 was made up, E. showed him a number of papers which 
 he said related to other business not included in the sum- 
 maries. These papers, which H. did not examine, showed 
 only a most trifling amount of business, and the gross 
 returns of the business were, in fact, only about £200 a 
 year. H. afterwards signed an agreement to pui'chase the 
 house for £1000, and paid a deposit. E. refused to have 
 any reference to the business inserted in the agreement. 
 
 • liedgravp. v. Tlvrd, 20 C'h. D. 1.
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES 35 
 
 H. took possession, but finding, as ho alleged, tliat the 
 business was worthless, refused to complete, K. brought 
 an action against H, for specific pcrforinanco of the con- 
 tract. H, pleaded misrepresentation as to the business, 
 and by a counter-claim claimed on the same ground to 
 have the contract rescinded, and to have damages on the 
 ground of the expense he had been put to, and the loss 
 incurred by giving up his own practice. He did not in his 
 counter-claim specifically state what representations had 
 been made, nor allege that they were false to li.'s knowledge. 
 
 Held, by Fry, J., that H., having had the opportunity 
 afforded him of ascertaining the truth of the representa- 
 tions made to him as to the amount of the business, and 
 having to some extent, though carelessly and inefficiently, 
 inquired into it, must be taken not to have relied on 
 the representations, and that K. was entitled to specific 
 performance. 
 
 Held, on appeal, that where one person induces another 
 to enter into an agreement with him by a material repre- 
 sentation which is untrue, it is no defence to an action to 
 rescind the contract that the person to whom the repre- 
 sentation was made had the means of discovering, and 
 might with reasonable diligence have discovered, that it 
 was untrue. 
 
 Held, further, that it is no defence in such an action 
 that H. made a cursory and incomplete inquiry into the 
 facts, for that if la material representation is made to 
 him, he must be taken to have entered into the contract 
 on the faith of it, and, in order to take away his right to 
 have the contract rescinded, it must be shown either that 
 he had knowledge of facts which showed it to be untrue, 
 or that he stated in terms or showed clearly by his 
 conduct that he did not rely on the representation.
 
 3H ADVEllTISEMENTS 
 
 Held, further, that H. was entitled to have the contract 
 rescinded, and the deposit returned, but that, as he had 
 not pleaded knowledge on R.'s part that the statements 
 as to the business were untrue, and had not specifically 
 alleged it in his counter-claim, he could not recover 
 damages. 
 
 Breach of Warranty founded on Statement in Advertise- 
 ment. — K.^ published an advertisement offering a ship for 
 sale. The vessel was described as " copper-fastened," but 
 these words were subjoined : " The vessel, with her stores, 
 as she now lies, to be taken with all faults, without 
 allowance for any defects whatsoever." The ship, when 
 sold, was only partially copper-fastened, and she was not 
 what was called in the trade a copper-fastened vessel. 
 S., before he bought, had had a full opportunity to examine 
 her situation. S. sued K. for breach of warranty, and 
 obtained a verdict. K. applied for a new trial, but the 
 verdict was upheld. Per Currain : " The meaning of the 
 advertisement must be that the seller will not be respon- 
 sible for any faults which a copper-fastened ship may 
 have. Suppose a silver service sold ' with all faults,* and 
 it turns out to be plated, — * with all faults ' must mean 
 with all faults which it may have consistently with its 
 being the thing described. Here the ship was not a 
 copper-fastened ship at all; and therefore the verdict 
 was right." 
 
 I 
 
 Fraudident Misrepresentation in Advertisement Ground 
 
 of Aetion for Deceit. — S.^ advertised in a newspaper the 
 letting by tender of a farm with immediate possession. 
 
 » Shepherd v. Eain, 5 B. & Aid. 241. 
 - Ri'chardfion v. Sihetier, 19 Q. K. v?4. 
 
 I
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES .']7 
 
 R, believing in the honm fides of the aclvertiseTnent, 
 inclined expense in inspecting the property and einphjy- 
 ing persons to value it for him. According to tlic 
 particulars of claim, S. had no power to let the property 
 as advertised, and caused the advertisement to be issued 
 to serve some purpose of his own other than that appear- 
 ing by the advertisement ; and he, S., knew at the time 
 he advertised that he had not the power to let the farm. 
 The county court judge ruled that the particulars disclosed 
 no cause of action for legal fraud and deceit, and non- 
 suited K. Held, that the particulars contained allegations 
 amounting to fraudulent representation, for which an 
 action would lie. 
 
 Advertisement admissible as Evidence of Fraud. — L.^ 
 entered into a contract with G.'s son (who was found to 
 be acting for his father) for building certain cottages, G. 
 promising to pay £216 "on condition of the work being 
 done in a proper and workmanlike manner on January 1, 
 1837, and to be completed on October 10, 1836." The 
 cottages were not completed by October 10, but G. after- 
 wards took the benefit of the contract. Towards the end 
 of September suspicions arose as to the solvency of G, 
 and his son, especially of the latter, and on the 23rd 
 of that month the son put an advertisement into the 
 Stamford Mercury, circulating in the district, intimating 
 that G. and his son had succeeded to an estate in America 
 on the death of a relative, and were on a given day and 
 at a certain place to receive a large sum of money. G. 
 gave currency to a report that his son had gone to 
 Philadelphia to take possession of the estate, whereas, 
 in fact, he was in confinement on a conviction for 
 
 ' Lucas V. Godicin, 4 Scott, 503.
 
 38 ADVERTISEMENTS 
 
 misdemeanour. About the time the advertisement appeared 
 B, read it to G., who recognized it as applying to himself. 
 The advertisement turned out to be a mere fabrication. 
 L. had sent in his bill to G.'s son. At the trial plaintiff 
 relied on the advertisement as evidence of the fraudulent 
 compact into which the father and son had entered. The 
 admission of the advertisement in evidence was objected 
 to on the ground that the newspaper produced was not 
 the identical paper read by B. The judge, however, 
 received it as evidence of the fact that about the time 
 of the conversation with B. a newspaper had appeared 
 containing an advertisement which corresponded with 
 that read to G. Held, that the judge was right in 
 receiving such evidence. 
 
 Misrepresentation in Advertisement inducing Contract 
 may justify Repudiation of Contract. — G.,^ a money-lender, 
 advertised under a fictitious name, and S. borrowed 
 money, and gave a promissory note to secure the sum 
 borrowed and interest. In an action on the promissory 
 note, the jury found that G. intentionally concealed his 
 identity to induce S, to borrow money from him as if 
 from another, and that S. was so introduced that G. did 
 so fraudulently, that S. entered into the contract believing 
 that he was doing so with a person of the fictitious name 
 given by G. S. repudiated the contract within a reason- 
 able time of his discovering that G. was the person with 
 whom he had contracted. Held, that the fraudulent 
 concealment by G. of his identity with a person whose 
 reputation in business was such that S. would not have 
 dealt with him, was material to the inducement which 
 brought about the contract. S. was therefore entitled to 
 
 ' Gordon v. Street, 1899, 5J Q. B. 641 (J. A.
 
 MISREPRESENTATION, AND ITS LEGAL CONSEQUENCES 39 
 
 repudiate it within a reasonable time after the discovery 
 of the fraud. Per A. L. Smith, L.J. : " The first question is 
 not whether the fraud was material to the contract cutered 
 into, but whether the fraud was material Lo the indvice- 
 ment which brought about the contract." Per Vaughan 
 Williams, L.J. : " I only wish to mention the case of 
 Moorhouse v. Woolfc as showing how in this case the 
 effect of the issue of the advertisement which was issued 
 by plaintiff made the misrepresentation contained in it 
 material to the inducement of the contract so as to entitle 
 the defendant to take the course that he has done."
 
 CHAPTER III 
 
 advertisement orders and other agreements 
 
 1. Breach of Contract 
 
 The form of such advertising contracts as those of which 
 precedents are set out in the " Encylopsedia of Forms and 
 Precedents " ^ is so complete that little or no litigation has 
 hitherto arisen therefrom. The great mass of advertising 
 contracts, however, pertains to the ordinary announce- 
 ments in newspapers and magazines, in which cases the 
 document used is a form of advertisement order, varying 
 a good deal in character and often incomplete. Under 
 the Statute of Frauds (sec. 4) a contract to take in a 
 literary work (to be published periodically) in parts 
 extending over more than a year, and to be paid for as 
 the parts are delivered, requires to be in writing.^ And 
 according to one authority,^ it would be the same with 
 contracts for the insertion of advertisements extending 
 over more than twelve months. 
 
 Where the advertisement order or agi^eement is on the 
 face of it an ordinary contract, it follows that any breach 
 of its terms, either on the one part or on the other, is a 
 wrong for which the defaulting party is liable in damages. 
 Negligence to insert an advertisement even once is breach 
 
 » Vol. i. p. 229. " Boydell v. VntmmoiKl, 11 ErtBt. 142. 
 
 => rowell's " Law aficcting PiinldH," p. 228.
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 41 
 
 of the contract under which the advertiser and the news- 
 paper owner have agreed to insert the advertisement.^ 
 Where an advertiser has contracted for a particular space 
 in the advertisement pages, he has a right to the continued 
 use of that space for the full term of the contracted p(3iiod, 
 and for discontinuance of the advertisement on the part 
 of the newspaper proprietor damages may be recovered.^ 
 Similarly it is conceivable that negligence on the part of the 
 printer in setting a wrong date in an advertisement, where 
 the date goes to the essence of the contract, say of a sale 
 or a concert, would render the newspaper proprietor liable 
 in damages to the aggrieved advertiser. Want of legality 
 in the object of the contract nullifies the effect of an 
 advertising agreement, just as it does in other contracts. 
 If the object of the advertisement be in any way illegal 
 or immoral, the contract may be repudiated as soon as its 
 real character is discovered, and, moreover, any money 
 paid in respect thereof becomes irrecoverable.^ The courts 
 will enforce an advertisement agreement, whether it be 
 contained in letters or simply in the form of an advertise- 
 ment order.* 
 
 Discontinuance of Advertisement a Breach of Contract. — 
 M.^ was a ladies' tailor, and in February, 1894, for the 
 purpose of starting his business, he took the ground floor 
 of a house situated at 37, Alfred Place, Bedford Square. 
 There were no means of displaying his goods in the 
 window, and he had to rely on advertising as the only way 
 of obtaining customers, and accordingly he determined 
 to advertise in the Jewish Chronicle, a paper which was 
 
 ' HawlcinK v. Tuxford, Times, Dec. 23, 1867. 
 - Marcun v. Mayerx and Daviefi, 11 T. L. R. 327. 
 ^ Oiceii V. Gieeiihuni, Thw-s, March 10, 1K98. 
 ^ Metzler v. Gounod, 32 L. T. 656.
 
 42 ADVERTISEMENTS 
 
 owned by Mayers and Davies. No other ladies* tailor had 
 an advertisement in the paper. Originally, the Jewish 
 Chronicle had no outside cover, but about this time a 
 cover liad been put upon it, which was fdled with adver- 
 tisements. M. gave an order ibr thirteen weekly inser- 
 tions in the paper, and this advertisement turning out a 
 very great success, in May, 1895, a further contract was 
 entered into, and it was upon this last contract that the 
 present case turned. A written order to the following 
 effect was given : " Please insert my advertisement in the 
 front page of the Jeiuish Chronicle for one year (fifty-two 
 insertions), payments to be on the dates as arranged." 
 This order was given by M. at the office of the paper in 
 May, and a piece of paper was given to him upon which 
 the dates for payment were written. The advertisement 
 appeared and the payments were made, and no difference 
 occurred till September, 1894, when the advertisement 
 was discontinued. After the advertisement was omitted, 
 M. found that his customers fell off, and he accordingly 
 brought this action to recover damages for the breach by 
 the defendants of this contract. The defence was that the 
 written order of May, 1894, and the paper given on 
 the same day did not contain the contract, and that there 
 were other terms, viz. that there must be no consecutive 
 appearance of the advertisement, and that if the outside 
 page was occupied, the defendants could either omit M.'s 
 advertisement or put it in some other place. It was 
 further contended on behalf of defendants that it was 
 impossible to tell what loss of business resulted from the 
 advertisement being discontinued, and that the true 
 measure of damages was the cost of the advertisement. 
 The jury found (1) that the contract was contained in 
 the two papers of May, 1894 ; (2) tliat there had
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 43 
 
 been a breach ; (3) and assessed the damages at .£G0. 
 In giving judgment, Kennedy, J., said, "The question 
 here is, What is the true measure of damages ? The 
 jury, having been directed by mo, according to the law 
 laid down in lladlcy v. Baxcndale} found that the phairitilf 
 suffered substantial damages. The defendants contend 
 that these damages are too remote and speculative, and 
 that evidence of loss of business is not admissible, I 
 have come to the conclusion that the damages found by 
 the jury are properly recoverable under the circumstances 
 of the case. The plaintiff contracted with the defendants 
 for a particular advertisement space in the Jewish 
 Chronicle, which is the particular journal of the Jewish 
 world. He contracted to have that space for twelve 
 months. The defendants knew the object of the adver- 
 tisement. If it be material, I think they ought to be 
 taken to have known at the time that if they broke the 
 contract the result would be, as a natural consequence, 
 loss to the plaintiff in his business. The plaintiff said 
 he suffered loss of business to the extent of £100, which 
 he attributed to the loss of the advertisement. During 
 the time of the breach he did not get a single new Jewish 
 customer. No suggestion was made by the defendants 
 as to any other cause of the loss of business. The 
 defendants knew that the plaintiff could not get the 
 advertisement inserted in a journal of such unique posi- 
 tion in such a place as they had contracted to give 
 to him. I am of opinion that the evidence of loss of 
 business was proper for the consideration of the jury in 
 assessing the damages." 
 
 Omission of Advertisement cdso a Breach of Contract. — 
 » 9 Ex. 354.
 
 44 ADVERTISEMENTS 
 
 H.* was a miller and corn-dealer, and occupied a steam 
 flour-mill atBelper. In November, 1864, he was desirous 
 of selling the mill. Accordingly, he instructed the agents 
 of Messrs. Smith and Sons, at Derby, to insert advertise- 
 ments of the sale in certain papers, including the Mark 
 Lane Express and in the Mar/net. T. was the proprietor 
 of the J/ar/j Lane Express, and H. ordered the insertion 
 of the advertisement in that paper in its issues of 
 November 21 and November 28. By some mistake the 
 advertisement was not inserted in the Ma7'k Lane Express 
 of November 28, and Messrs. Smith and Sons omitted to 
 send the advertisement to the Magnet. The sale was 
 held on December 24, but, as H. alleged, in consequence 
 of the absence of proper advertisements, the attendance 
 was very small, and no sale was effected. On applying 
 for compensation T. admitted his clerk's error, and offered 
 to insert an advertisement gratis if another sale was con- 
 templated. No suggestion was made by the defence that 
 the omission of the advertisement was not a breach of 
 contract. T. simply pleaded that his contract was with 
 Messrs, Smith and Sons, and not with H. This raised the 
 question of agency, which was the only point discussed. 
 H. proved he was the principal, and Messrs. Smith merely 
 agents. The jury assessed the damages at £20. 
 
 Advertising Contract of an Illegal or Immoral Nature 
 not Enforceable. — G.^ was an advertising contractor, and 
 O. was an advertiser who carried on the business of 
 selling patent medicines. O. paid G. in advance the cost 
 of inserting an advertisement relatuig to medicines for 
 ladies in a paper called Pich-Me- Up. The advertisements 
 
 ' EmoUm V. Tiixfnrd, Tlmox, Dec. 23, 1867. 
 - Oweit V. Qrcevhunj, Tinif't', March 10, 1898.
 
 ADVERTISEMENT OllDEUS AND OTHER AGREEMENTS 15 
 
 appeared for some time, but upon a change in the pro- 
 prietorship of the paper it was discovered that the adver- 
 tisements related to an improper practice, and the new 
 proprietors declined to insert any further advertisements. 
 0. then sought to recover from G. the money ho had paid 
 in respect of the time during which the advertisements 
 did not appear, and also damages for non-insertion. G. 
 swore that the advertisements appeared in any number of 
 respectable papers, and at the time he took them he did 
 not know there was anything of an illegal or immoral 
 nature in them. If he or the proprietors of the paper 
 had known the nature of the advertisements, they would 
 not have been inserted. The question left by Darling, J., 
 to the jury was, Was it intended by the advertisements to 
 convey that the medicines would procure miscarriage or 
 abortion ? If so, the advertisement was illegal, and the 
 contract was illegal, and 0. could not recover his money. 
 The jury answered the question in the affirmative, and a 
 verdict was given for G. 
 
 Terms of Advertising Contracts collected from Letters. — 
 M.^ were the proprietors of a journal called Tlic Choir, 
 and G. was a musical composer. G. signed the following 
 letter : " I hereby guarantee to the proprietors of The 
 Choir two hundred and fifty additional annual subscrip- 
 tions to this paper. In consideration of which the pro- 
 prietors of Tlie Choir undertake to give me the free use of 
 one column of space in each number. The said column 
 to be occupied in such proportions as may appear to me 
 from time to time most convenient with notices to {sic) 
 the ' Gounod's ' Choir, at present in course of formation, 
 and advertisements of M. Gounod's musical compositions. 
 
 ' Meizler v. Gounod, 32 L. T. 656.
 
 46 ADVERTISEMENTS 
 
 It being at the same time understood that the notices to (sic) 
 The Choir are to be put in a good place in the paper, and 
 that the advertisements are to appear among the ordinary 
 advertisements at the end of each number. I likewise 
 undertake to insert the name of 17ie Choir as my organ in 
 my standing advertisement in the Independence Beige, and 
 to do my best to get frequent mention made of The Choir 
 in that and other newspapers. This agreement is to hold 
 good for one year, from the 31st December, 1872." There 
 was also an agreement by M. to insert G.'s advertisement 
 in Tlic Choir in consideration of G. guaranteeing 250 
 additional subscriptions. This agreement made no mention 
 of the Independence BcUjc. It was signed by M., and was 
 followed by this postscript : " P.S. — The payment for the 
 above-named subscriptions to be complete by the 31st 
 December, 1873 : Metzler & Co." Later on, disputes arose 
 between the parties as to the manner in which the agree- 
 ment was to be earned lout, and G.'s agent wrote M. 
 a letter, which was treated by them as a repudiation of 
 the agreement. The question raised for the consideration 
 of the Court was. Did the two letters form a valid agree- 
 ment ? Brett and Huddlestou, JJ., held that there was 
 a binding contract. 
 
 2. Options and Trade Customs 
 
 In the interpretation of advertising contracts a good 
 deal of discussion arises in regard to certain customs in 
 the trade, and the effect of these usages upon agreements 
 made between advertisers and the owners of the publica- 
 tions where the advertisements appear. Sometimes the
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 47 
 
 wording of the advcrtiscmcut order itscli' is vague or 
 ambiguous, and the Court has to interpret it. 
 
 Options of various kinds exist in the advertising trade, 
 and are sometimes embodied in written contracts. Options 
 of a uiiihiteral kind arc contained in contracts executed 
 in such ditfereut trades as the building ^ and the printing 
 trade.'^ 
 
 It may also happen that the written agreement is 
 ambiguous in its references to this point. One of the 
 earliest cases of this kind on record is that of Mcasom v. 
 Finnigan, where there was a unilateral option to tlie 
 advertiser.^ F. was a trunk- maker at Manchester, and 
 M. proprietor of several illustrated railway guide-books. 
 M. furnished printed forms on which orders to insert 
 advertisements in the guide-books were taken. The 
 forms contained a prospectus of the work, the terms, 
 and a printed blank form of order. On March 8, 1859, 
 F. signed one of these documents. It commenced : 
 " One trunk-maker only in Manchester. London and 
 North Western Eailway." (Here followed a letter from 
 the general manager, requesting the officials of the com- 
 pany to afford information to M. Then followed the 
 prospectus of the work, and then the following) : " Scale 
 of charges for advertising, including a copy of the work 
 (each page to be headed 'Official Advertiser'), whole 
 page, £5 5s.," etc. " Order for insertion. March 8, 1859. 
 Sir, — Please to insert in ' The Official Illustrated Guide 
 to the North Western Eailway and its Branches,' by 
 George Measom, my advertisement, to form one page. 
 
 I Whithread & Co. v. Watt, 1901, 1 Ch. 911 ; Marsden v. Sambell, 28 
 W. R. 953. 
 
 ■^ GiUett V. Mau'man, 1 Taunt. 1H8. 
 3 11 W. R. 4;39.
 
 48 ADVERTISEMENTS 
 
 To last two years from date ; to be renewed on the same 
 terms at the end of that period, provided a second edition 
 shall be printed. No other trunk-maker in Manchester 
 to appear. — (Signed) B, Finnigan." M. accepted this 
 order, and F.'s advertisement was duly inserted in the 
 first edition for the period named in the order. At the 
 end of that period M., having sold off nearly the whole 
 of the first edition, gave notice to F. that he intended to 
 issue a second edition, and to renew the insertion of F.'s 
 advertisement therein, on the same terms as in the first 
 edition. But F. refused to allow the advertisement to 
 appear therein, and withheld and refused to return to M. 
 (though requested by M. so to do) the block of a picture 
 which had appeared in F.'s advertisement. At the trial 
 the jury returned a verdict for the plaintifi" on all the 
 issues, but Bramwell, B., reserved leave to F. to enter 
 a verdict. A court, including Blackburn, Wightman, 
 and Kealing, JJ., held that the meaning of the contract 
 was that if a second edition should be brought out, F. 
 should have the option to renew his advertisement upon 
 the same terms. 
 
 Options, such as that reserved in the contract dis- 
 cussed, may be created either by the express terms of the 
 agreement or by the customs or usages of the trade. 
 Where the existence of the option is clearly indicated 
 in the language of the advertisement order, evidence of 
 custom in the trade is not only inadmissible but unneces- 
 sary. "Where, however, the option is reserved verbally 
 where the order is given, but the agreement is silent on 
 the point, a serious difficulty arises in the way of 
 admitting evidence of the custom of the trade. The 
 cases in which evidence of custom is receivable to annex
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 49 
 
 incidents to written contracts have been clearly laid down 
 in the courts. As far back as 1800 Lord Eldou ^ expressed 
 the opinion that the practice of admitting usage to explain 
 contracts ought not to l)o extended. The limits set to 
 the admissibility of such evidence are clearly set out in 
 the judgment of Parke, 13., in Hutton v. Warren.'^ From 
 his language it may be collected that evidence of custom 
 or usage will be received to annex incidents to written 
 contracts on matters with respect to which they are 
 silent, not only in contracts between landlord and tenant, 
 but in commercial contracts and other occupations where 
 known usages have been established and prevailed. 
 Such evidence, however, is only receivable where the 
 incident which it is sought to import into the contract 
 is consistent with the terms of the written instrument.^ 
 If inconsistent, the evidence is not receivable, and this 
 inconsistency may be evinced {a) by the express terms of 
 the written instrument ; and (h) by implication therefrom. 
 The usage of which evidence is tendered must be reason- 
 able,* must be general,^ need not be annexed,^ and it is 
 not necessary that the party bound should have known 
 of the usage if he dealt in the market where it prevailed, 
 or authorized his agent to deal there.' 
 
 An illustration of the extent to which the general 
 law is controlled by the usages of the trade is found in 
 Gillett V. Mawman^ G. was a printer. He printed, on 
 
 » Anderson v. Pitcher, 2 B. & P. 168. 
 2 1 M. & W. 475. 
 » S. L. C. 555. 
 
 * Veanon v. Scott, 9 Ch. D. 198. 
 
 ^ Wihly V. Stephemon, C. & E. ;i; Nthon v. Dalil, 12 Ch. 576. 
 
 « Willans^ V. Ay res, 3 A. C. 13.3. 
 
 ' Sutton V. Talhim, 10 Ad. & E. 27. 
 
 * 1 Tauut. 138.
 
 50 ADVERTISEMENTS 
 
 accoimt of M., a trauslation of Anarchasis. The work was 
 nearly completed when a fire accidentally broke out on G.'s 
 premises, and the whole impression was destroyed. G., 
 when entrusted with the translation, had undertaken to get 
 it insured. Afterwards he effected an insurance in his own 
 name upon property on his premises, but without making 
 any mention of the goods held in trust for M. After the 
 premises were destroyed by fire, G. received the amount 
 of his insurance, which fell considerably short of his own 
 loss. The courts held that no part of this money could 
 be considered as received on account of B., and it could 
 not, therefore, be set off in an action for work and labour 
 brought by G. against M. Per Lord Mansfield: "The 
 custom of the trade was fully established. It was 
 proved that the printer, by the general usage, was not 
 entitled to be paid for any part of his work until the 
 whole was completed and delivered. Tliis custom is law 
 of the trade, and as far as it extends it controls the 
 general law." 
 
 Parol evidence of the custom of a particular place or 
 trade cannot be given to vary a written contract, or to 
 contradict it, but it may be admitted to explain the terms 
 used or to add a tacitly implied incident. Where a 
 young lady was engaged as an actress for three years, 
 evidence was admitted to show that, by the usages of the 
 trade, the term " three years " in such an agreement meant 
 only the theatrical seasons of the year.* Where the term 
 " 1000 rabbits " was used in a contract, it was shown that 
 the " 1000" meant 1200, according to the custom of the 
 trade. Where the words " on arrival " occurred in a 
 charter-party, evidence was admitted to show that, liy tlie 
 
 ' Grant v. Madihx, If) M. & W. 7:57.
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 51 
 
 usage of the port, " arrival " meant going to a particular 
 spot in the port.^ By mistake a contract note was written 
 as of a sale from A, a broker, to C. A tried to get in 
 evidence that it was the custom of the place to send 
 brokers' contract notes without disclosing the principal's 
 name, but it was rejected, on the ground that it was verbal 
 evidence to contradict a written contract.^ Where A and 
 B entered into a written agreement for the sale of an 
 interest in a patent, and at the same time agreed orally 
 that the agreement should not come into force unless C 
 approved of it, the parties interested were allowed to 
 prove that C did not approve of it.^ 
 
 A glance at these authorities is sufficient to show the 
 state of the law in regard to one established usage of the 
 advertising trade, namely, the letters " U. C," signifying 
 "until countermanded," which are sometimes written 
 across an advertisement order. The order may authorize 
 the insertion of the advertisement for so many weeks or 
 months, as the case may be, but the inscription of the 
 letters " U. C." written on the face thereof reserves to the 
 advertiser or his representative the option of terminating 
 the order before the expiration of the period. On the 
 authority of the cases above quoted, the writer is of opinion 
 that parol evidence is admissible to show the meaning of 
 the letters " U. C." written on the order. Cases arise, 
 however, where the letters " U. C." are not written thus 
 on the order, but in which the advertiser is led to under- 
 stand that he has the option of countermanding the order 
 should the results of the advertisement be unsatisfactory. 
 Can oral evidence of this be admitted, where the order 
 
 ' Norden v. Dempsy, 1 C. P. D. 654. 
 * Magee v. Atkimon, 2 M. & W. 442. 
 2 Vym V. Campbell, 6 E. & B. 370.
 
 52 ADVERTISEMENTS 
 
 speaks definitely of the insertion of the advertisement for 
 so many weeks or months ? Two rules may be laid down. 
 Where one of the terms of an agreement deals specifically 
 with the period during which it is to last, oral evidence is 
 not , admissible to vary the document or to contradict it. 
 Such evidence, therefore, will be ruled as inadmissible on 
 the ground that it contradicts a written term in regard to 
 which the document is quite clear. The other rule is that 
 a tacitly implied incident may be proved by verbal 
 evidence where it is consistent with the written terms of 
 the order. If the words " until countermanded " are 
 signified by the letters " U. C." written in full across the 
 order, such parol evidence will be quite consistent with 
 what appears on the face of the contract, and is admissible. 
 
 3. When Payments are due 
 
 As a rule, a properly drawn advertisement order pro- 
 vides for the amount and the period of payment agreed on 
 for the insertion of the advertisement. Where the docu- 
 ment contains no reference either to the amount or to the 
 period of payment, evidence of the usages of the trade 
 would be admissible on the point, and the owner of the 
 paper or magazine where the advertisement appeared must 
 charge only what is reasonable, A different question 
 arises where the agreement specifies either the amount of 
 each insertion or the total amount for the series of adver- 
 tisements, but makes no provision for the period or mode 
 of payment. Can the publisher of the advertisement in 
 such a case sue for any portion of the money before the 
 series is completed ? Or must the advertisements appear 
 for the whole period before any money becomes due ?
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 53 
 
 The first question to determine is whether the contract is 
 entire or divisible. If the contract be entire, no money is 
 due till the contract is completed. If, on the other hand, 
 the contract is divisible, payments may be enforced before 
 the series is completed. If A undertakes to shave B and 
 demands payment when he has only shaved one side of 
 B's face, he can recover nothing till he completes the job 
 he has undertaken to do. It has long been laid down 
 that an entire job cannot be apportioned. Where S. 
 claimed £5 for repairing B.'s chandeliers, and B. proved 
 that S.'s agreement was to make the chandeliers complete 
 for £10, judgment was given for B.^ If, however, the 
 contract or its consideration be divisible, the entire job 
 may be separated into portions, which may be sued upon 
 before the series is complete. R undertook to put H.'s 
 ship into thorough repair. When he had partly carried 
 out his undertaking, R. demanded payment for what he 
 had done, and refused to complete the work unless he was 
 paid. H. refused to pay him till the whole job was done. 
 The courts held that this was not a specific job for a 
 specific sum, and that there was no undertaking in the 
 contract to make no demand for payment till the work 
 was complete.^ 
 
 Performance of the whole work is not a condition pre- 
 cedent to the payment of any part of the price unless 
 both price and work are specified. The best illustrations 
 of divisible promises can be found in contracts to receive 
 and pay for goods by instalments. The question to be 
 answered in all these cases is one of fact ; the answer 
 must depend on the circumstances of each case. This is 
 substantially the mode in which the Legislature has stated 
 
 ' Sinclair v. Boicles, 9 B. & C. 92. 
 - Boherts v. Haveloch, 3 B. & Ad. 404.
 
 54 ADVERTISEMENTS 
 
 the problem iu the Sale of Goods Acts. Sec. 31 of that 
 statute runs — 
 
 " Sec. 31. — (1) Unless otherwise agreed, the buyer of 
 goods is not bound to accept delivery thereof by instal- 
 ments. 
 
 " (2) Where there is a contract for the sale of goods to 
 be delivered by stated instalments which are to be sepa- 
 rately paid for, and the seller makes defective deliveries 
 in respect of one or more instalments, or the buyer 
 neglects or refuses to take delivery of or pay for one or 
 more instalments, it is a question in each case depending 
 on the terms of the contract and the circumstances of the 
 case, whether the breach of contract is a repudiation of 
 the whole contract, or whether it is a severable breach 
 giving rise to a claim for compensation, but not a right 
 to treat the whole contract as repudiated." 
 
 An order for a series of advertisements is analogous 
 to an order for the supply of goods in the form of adver- 
 tising space in the columns of a newspaper. It will be 
 noticed that sec. 31 is framed on the assumption that 
 the contract indicates the terms on which the "instal- 
 ments " (of advertising spaces) are to be supplied or paid 
 for. In each case the circumstances proved at the trial 
 deteimine the result. Where it is proved that the con- 
 tract is divisible, i.e. where the other party has derived 
 some benefit from the part performance, it is clear that 
 payments may be enforced before the end of the series. 
 The presumption in such cases is that the parties intended 
 payment to keep pace with the accrual of the benefit for 
 which payment was to be made. The most aralogous 
 case to an advertisement order is that of Lockiuood v. 
 Tunh'idge Wells Local Board.^ 
 
 • Cnb. & E. 289.
 
 ADVEIITISEMKNT ORDERS AM) OTHER A(!REE.MENTS 55 
 
 A, a builder, had contracted to execute certain works 
 for 13 at Pcmbury. Defendants, owners of a stone-quarry, 
 agreed to supply A with the stone required in the works. 
 The terms of the contract were : " Supply me with the 
 whole of the Sevenoaks stone required at the Pembury 
 reservoir, the same to be clean, fit for use, and delivered 
 into trucks of the railway company at Sevenoaks at 
 55. Sd. per ton." Deliveries were made from time to time, 
 and at the time the action was brought about one-third 
 of the quantity of stone required had been delivered. It 
 was contended for A that the contract was entire, and that 
 payment under it did not become due till its completion. 
 Huddleston, B., saying that the question turned on the 
 intention of the parties, held that B was entitled to pay- 
 ment on delivery for the quantities delivered from time to 
 time. 
 
 4. Stamping of Advertisement Oedeks 
 
 Shortly after the passing of the Stamp Act of 1891, 
 the authorities at Somerset House drew the attention of 
 the proprietors of newspapers and magazines to the point 
 that all advertisement orders above the value of £5 may 
 be liable to the 6d. stamp provided for in the first schedule. 
 No legal duty or obligation is imposed on the owner of a 
 newspaper or magazine to put a 6d. stamp on every 
 advertisement order received at his office. The question 
 whether the order bears a stamp or not springs up only 
 when, a legal dispute having arisen between the proprietor 
 and the advertiser, the former wishes to rely upon the 
 order as evidence of the contract. If the document be 
 stamped, and the stamp be an adhesive stamp, it must be 
 cancelled at the time of making the agreement by the
 
 56 ADVERTISEMENTS 
 
 person first signing putting on the stamp his name or 
 initials, or the name and initials of his firm, and the 
 date.* 
 
 If it be not so stamped, the document may be im- 
 pressed with a stamp at Somerset House, or other Inland 
 Ixevenue office either before execution or after. If after 
 execution, it must be brought to be stamped within four- 
 teen days from its date, if it bears one, or from its exe- 
 cution if it does not bear the date, or it will not be 
 stamped without payment of the penalty. The penalty 
 is £10 ; but, if within three months of the first execution 
 of the document, the Commissioners of the Inland Eevenue 
 be memorialized, and a good excuse offered for not stamp- 
 ing the document in time, the penalty will be mitigated, 
 though there is hardly ever less than 10s. to pay.^ 
 Sec. 21 of the Stamp Act of 1891 runs — 
 "Agreement or any memorandum of an agreement 
 made in England or Ireland under hand only, or made in 
 Scotland without any clause of registration, and not other- 
 wise specifically charged with any duty, whether the 
 same be only evidence of a contract or obligatory upon 
 the parties from its being a written instrument, 6d. 
 
 " Exemptions. 
 
 " (1) Agreement or memorandum, the matter whereof 
 is not of the value of £5. 
 
 " (2) Agreement or memorandum for the hire of any 
 labourer, artificer, manufacturer, or menial servant. 
 
 " (3) Agreement, letter, or memorandum made for or 
 relating to the sale of any goods, wares, or merchandise. 
 
 ' Stamp Act, 1870, sec. 24. 
 
 ' Powell's " liaw affecting PrinterB," p. 229.
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 57 
 
 "(4) Agrcemout or memorandum made betweeu the 
 master and mariners of any ship or vessel for wages, on 
 any voyage coastwise from port to port in the United 
 Kingdom. 
 
 " (5) Agreement entered into between a landlord and 
 tenant, pursuant to sub-sec. 6 of sec. 8, or sub-sec. 2 of 
 sec. 20 of the Land Law (Ireland) Act, 1881. 
 
 " Sec. 22. — The duty of sixpence upon an agreement 
 may be denoted by an adhesive stamp, which is to be 
 cancelled by the person by whom the agreement is first 
 executed." 
 
 The terms upon which instruments, not duly stamped, 
 may be received in evidence are set out in sec. 14 — 
 
 " (1) Upon the production of an instrument chargeable 
 with any duty as evidence in any court of civil judicature 
 in any part of the United Kingdom, or before any arbitrator 
 or referee, notice shall be taken by the judge, arbitator, or 
 referee, of any omission or insufficiency of the stamp thereon, 
 and if the instrument is one which may legally be stamped 
 after the execution thereof, it may, on payment to the 
 officer of the court whose duty it is to read the instru- 
 ment, or to the arbitrator or the referee, of the amount 
 of the unpaid duty, and the penalty payable on stamp- 
 ing the same, and of a further sum of one pound, be 
 received in evidence, saving all just exceptions on other 
 grounds." 
 
 It is now settled practice to allow an unstamped 
 document to be used, upon the personal undertaking, not 
 of a party to the action, but of the solicitors who are 
 officers of the court to stamp it and to produce it so 
 stamped before the order of the court is drawn out.^ 
 If the judge rules that the stamp upon any document 
 
 • Re Coolqurdie Co., ex parte Flemlwj, 1900, 1 Ch. 475.
 
 o8 advp:rtisement.s 
 
 is sufticicnt, or that the document docs not require a 
 stamp, a new trial will not be granted.^ If the judge 
 rules that the stamp upon a document is sufficient, no 
 appeal lies against his ruling, even though it should 
 appear to be incorrect.^ It is the duty of the judge to 
 reject an unstamped or insufficiently stamped document 
 tendered in evidence, whether counsel take objection to 
 its admissibility or not.'^ 
 
 5. Should all Advertisement Orders be stamped? 
 
 Notwithstanding the circular issued by the Somerset 
 House authorities to newspaper proprietors, it is very 
 doubtful whether all the advertisement orders above £5 
 require a stamp. So far as the words of the charge 
 describe the instrument chargeable, they are taken sub- 
 stantially from the language of 55 Geo. III., c. 184, and 
 the subsequent statutes, and must be interpreted according 
 to the cases decided under those Acts.^ Even where the 
 document is not required by law to be in ^vriting, it 
 must be stamped if it comes within the description 
 of the charge — that is to say, if it be "an agree- 
 ment or any memorandum of an agreement made in 
 England or Ireland under hand only : . . . whether the 
 same be only evidence of a contract or obligatory upon 
 the parties from its being a written instrument." The 
 general rule on the point was laid down by Parke, B.,^ as 
 
 ' Order XXXIX. rule 8; Mfuidrr v. Buhjewny, 1898, 1 Q. B. 501. 
 = BUwilt V. Trotion, 1892, 2 Q. B. G27. 
 ' Bowlfr V. WUklui^on, 5 T. L. R. 382. 
 * Alpe's " Law of Stamp Duties," p. 52. 
 » BeecMng v. Wenthrnol; 8 M. & W. 414.
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 59 
 
 follows : " A stamp is not imposed by the Act upon 
 every document which refers to, and so furnishes evidence 
 to prove, a contract ; it is required only on documents in 
 which the parties put down the terms by which they 
 intend to be mutually bound." 
 
 The cases cited below establish two rules in regard 
 to stamping applicable to advertisement orders : (a) a 
 proposal accepted orally need not be stamped ; ^ (5) a docu- 
 ment or letter containing the terms of agreement already 
 made must be stamped.^ An order for the insertion of 
 advertisements above the value of £5 requires to be 
 stamped (a) when it is signed after the advertiser has 
 discussed terms with the canvasser; or (h) when the 
 order is signed in response to a letter or application. 
 The order need not be stamped (a) when the advertiser, 
 on his own initiative, requests the newspaper to insert 
 the advertisement, and his proposal is tacitly accepted 
 by the insertion of the advertisement ; or (h) when the 
 advertisement order comes in the form of a proposal from 
 the canvasser, and is orally accepted by the advertiser. A 
 written proposal to let land on certain terms accepted 
 by parol is not an agreement nor a minute or memorandum 
 of agreement.^ 
 
 A letter purporting to allot shares in terms differing 
 from those of the letter of application was held admissible 
 without a stamp, on the ground that the letter of allot- 
 ment was a new proposal.* Letters offering the term 
 of an engagement to an actor who accepted the terms by 
 
 ' Drant v. Broton, 3 B. & C. 669; Hudspeth v. Yarnold, 9 C. B. 625 ; 
 Doe d. Bingham v. Cartwrhjht, 3 B. & Aid. 326. 
 2 Knhjht V. Barher, 16 M. & W. 66. 
 ' Ttrant v. Brown, 3 B. & C. 669. 
 * Volluns V. Flrtrhrr, 16 I.. J. Kx. 173.
 
 60 ADVERTISEMENTS 
 
 parol, were admitted unstamped.^ A prospectus {e.g. of 
 a school) containing terms which were accepted by parol 
 need not be stamped, being a proposal only.^ But where 
 the letters or documents are -written so as to contain the 
 terms of a contract already made between the parties, 
 a stamp is required, though only signed by one of them.' 
 
 An agreement consisting of several letters may be 
 proved under one stamp, the letters being those written 
 while the contract is being made.* The stamp may be on 
 any letter of the series, but it should be on an original 
 document, not a copy.^ 
 
 6. Stamping of other Advertising Contracts 
 
 The stamping of advertising contracts other than 
 advertisement orders has been materially affected by the 
 decisions of the Court of Appeal in such cases as Jones v. 
 the Commissioners of Inland Revenue,^ and The National 
 Telephone Co. v. the Commissioners of Inland Revenue? 
 Specimens of these contracts are to be found in the 
 " Encyclopaedia of Forms and Precedents," ^ so far as 
 they deal with two rights secured by contract: {a) the 
 right to afi&x advertisements on another's property ; (&) 
 the advertisement of another's property. Neither a notice 
 inviting tenders for the exclusive right to use the cars or 
 carriages of a tramway or railway company for advertising 
 
 » Hwhpeth V. Yarnohl, 9 C. B. 625. 
 
 - Edijar V. Bitch 1 Starkie 4G4; Chiy v. Croft», 20 L. J. Ex. 361. 
 
 => KniijU V. Barber, 16 M. & W. GG. 
 
 * Beeching v. Wcntbrook, 8 M. & W. 411. 
 
 ^ Alpe's " Law of Stamp Duties," p. 53. 
 
 « 1895, 1 Q. B. 484. 
 
 ' 1899. 1 Q. B. 250; 1900, A. C. 1. 
 
 » Vol. i. p. 229.
 
 ADVEETISEMENT ORDERS AND OTHER AGREEMENTS 01 
 
 purposes, nor the conditions of tender annexed thereto, 
 requires a stamp, but the contract form which is often 
 attached to the conditions must, when it is duly filled up 
 as accepted, be stamped at the rate of 2s. ^d. per £5 of 
 the total amount of the first quarterly payment and lO.s. 
 in addition. The words of the second schedule of the Stamp 
 Act of 1891, which render such agreements chargeable, 
 are as follows : — 
 
 " Bond, covenant, or instrument of any kind what- 
 soever — 
 
 " (1) Being the only or principal or primary security for 
 any annuity (except upon the original creation thereof by 
 way of sale or security, and except on a superannuation 
 security) or for any sum or sums of money at stated periods, 
 not being interest for any principal sum secured by a duly 
 stamped instrument, nor rent reserved by a lease or tack. 
 
 " Tor a definite and certain period, so that the total 
 amount to be ultimately payable can be ascertained. 
 (The same ad valorem duty as a bond or covenant for such 
 total amount.) 
 
 " For the term of life or any other indefinite period — 
 
 " For every £5 and also for any fractional part of £5 
 of the annuity or sum periodically payable, 2s. 6d" 
 
 The cases decided point to the conclusion that all 
 instruments of whatever description, containing a binding 
 promise to pay an ascertained sum of money at stated 
 periods, which are not chargeable with ad valorem duty 
 under the title Conveyance, or Lease, or Mortgage, are 
 liable to either the primary or auxiliary duty (as the case 
 may be) under this title. 
 
 In Jones v. the Commissioners of Inland Revenue} A 
 had entered into an agreement under seal with B, a 
 
 » 1895, 1 Q. B. 484.
 
 62 ADVERTISEMENTS 
 
 teleplioue compauy, for the supply of means of telephonic 
 communication. A covenanted to pay, by quarterly instal- 
 ments in advance, for the use of the telephone lines and 
 apparatus and the telephone communication, the annual 
 sum of £11 5^. per line, the minimum amount to be pay- 
 able being calculated on the rent of forty-five lines, viz. 
 £506 5s. The agreement was to continue in force for ten 
 years, and thereafter from year to year, determinable by 
 either party on three months' notice at the end of the 
 tenth or any subsequent year. The question was, Was 
 the agreement an " instrument " chargeable with bond, 
 etc., only under sub-sec. 1 as securities for the payment of 
 annual sums for a certain period ? It was contended that 
 the word "security" meant something auxiliary to a prior 
 obligation, but the Divisional Court decided that the agree- 
 ment was chargeable. Wright, J., expressed the view that 
 " the word ' security ' as used in these schedules does not 
 mean, as in popular language, some obligation which is 
 auxiliary to a prior obligation, but means any obligation 
 created by any instrument." The same decision was given 
 in TJie Sweetmeat Automatic Co. v. the Commissioners of 
 Inland Revenue} and in Clifford v. the Commissioners of 
 Inland Revenue?' Finally, in The National Telephone Co. 
 V. the Commissioners of Inland Revenue^ the House of 
 Lords settled the point beyond question. An agreement 
 under hand only for the hire of a private telephone wire 
 for the sum of £12, payable yearly in advance, was held 
 chargeable under the section. 
 
 One authority ^ expresses the opinion that a contract 
 
 » 1895, 1 Q. B. 484. 
 « 1896, 2 Q. B. 187. 
 3 1899, 1 Q. B. 250; 1900, A. C. 1. 
 
 * M. Underbill, general editor of the " Encyclopiedia of ForiuB and 
 Precedents."
 
 ADVERTISEMENT ORDERS AND OTHER AGREEMENTS 63 
 
 between a railway company and an advertiser or adver- 
 tisement agent, conferring the riglit to exhibit advertise- 
 ments in the company's stations, recpiires a stamp at the 
 rate of 2s. Qd. per £5 of the annual rent. According to the 
 same authority, the stamp on nearly all these advertising 
 contracts will be at the rate of 2s. Gd. per £5 of the lirst 
 periodical rent, whether annual, quarterly, monthly, or 
 otherwise ; but the fact that what is in substance a yearly 
 rent is payable by instalments, quarterly or otherwise, 
 will not make the duty payable on the first instalment 
 only. An additional stamp of 10s. will be necessary 
 where the first periodical rent may be exceeded by an 
 uncertain amount.^ In cases where the agreement is for 
 a term certain (and is not to continue after the term until 
 determined by notice) so that the total amount payable 
 under the contract can be definitely ascertained, the 
 agreement must be stamped ad valorem as a mortgage. 
 
 7. Stamping of Insurance Coupons 
 
 Under sec. 118 of the Stamp Act of 1870, the 
 penalty of £20 is imposed on every person who " makes, 
 executes, or delivers out or pays, or allows in account, or 
 agrees to pay or allow in account, any money upon or in 
 respect of any policy which is not duly stamped." When 
 newspapers adopted the practice of issuing free insurance 
 coupons against injury in railway or other accident, they 
 brought themselves within the provision ; and in the 
 Ee venue Act of 1889 provision was made for the com- 
 pounding of the stamp duties on the lines secured for 
 the Eailway Passengers Assurance Co., and the Ocean, 
 
 ' Jo7ies V. tht Iithind Revenue CommissionerK, 1805, 1 Q. B. 484.
 
 (j4 ADVERTISEMENTS 
 
 Eailway, and General Accident Co., by two private bills. 
 Under the amending Act of 1891, the Commissioners of 
 Inland Revenue may enter into an agreement for the 
 compounding of the stamp duties by means of a quarterly 
 payment of a lump sum by way of composition for such 
 duty.
 
 CHAPTER IV 
 
 THE EATING OF ADVERTISING STATIONS 
 
 The Advertisiug Stations (Eating) Act of 1889 dealt with 
 the problem of who was the right person to be rated for 
 land occupied or unoccupied, but used for advertising 
 purposes ; and, secondly, with the power of local authorities 
 to regulate structural advertisements. At common law, 
 the power of putting up hoardings in highways without 
 any licence from the local authority still exists. 
 
 A householder may of right, according to the proposi- 
 tion laid down in one case,^ put up temporary hoarding 
 during the repairs of his house, although it projects into 
 the roadway, though this right is subject to the limitation 
 that any excess or abuse of it may amount to a nuisance. 
 The inability of a local authority to restrict this common- 
 law right was settled in a case as far back as 1870.^ Under 
 the City of London Sewers Act, 1848, persons about to 
 build or pull down a house could be licensed by the Com- 
 missioners to erect a board or fence, the name of the 
 street and the purpose for which the hoarding was to be 
 made to be mentioned in the licence. A person who w^as 
 about to erect a large building that would take two years 
 to build, applied for a licence to erect a hoarding. As a 
 
 ' FisUcr V. Frowse, 2 B. & S. 770. 
 
 * Beg. V. the Commissioners of Sewers for tlie City of London, ex parte 
 Brass, 22 L. T. N. IS. 582. 
 
 F
 
 66 ADVERTISEMENTS 
 
 condition of granting the licence, the Commissioners 
 stipulated that no placards or other materials for adver- 
 tising purposes should he placed against the hoarding. 
 The Court held that the Commissioners had no right to 
 impose conditions prohibiting the placing of advertisements 
 on the hoarding. 
 
 Whilst it is true that the statute of 1889 does not 
 make property rateable which was not rateable before, it 
 has solved many points that had arisen as to whether the 
 advertising contractor was liable to be rated. In the law 
 of rating, it is not the place but the occupier that is rated. 
 Almost every case turned mainly on two points : (1) Were 
 the advertisement hoardings so fixed to the soil as to come 
 within the legal definition of " land " ? and (2) if so, were 
 the parties exhibiting the advertisements occupiers in the 
 legal sense of the term, or merely licencees ? In order to 
 bring the advertisement hoarding within the definition of 
 a structure, it was necessary to show that the hoardings 
 had a firm foundation in the soil, so as to render them, for 
 so long as the materials of which they were composed 
 would naturally last, a part of the land not removable 
 without digging up or the loosening of their foundations 
 thereon. The first point arose in lieg. v. St. Pancras Assess- 
 ment Committee} A suburban villa was occupied by a 
 caretaker. In front of the house a dwarf wall was sur- 
 mounted by iron railings. In front of the wall and railing 
 a framework of wood was fixed expressly for the purpose 
 of advertising. W. paid a yearly payment to rent the 
 hoardings for advertising purposes, and such hoardings 
 were fixed, but not in such a way as to necessitate any 
 disturbance of the soil if they were removed, or as to 
 indicate any intention on the part of the owner that there 
 
 > 2 Q. B. D. 581.
 
 THE RATING OF ADVERTISING STATIONS 67 
 
 should be a permanent occupation of any part of the land 
 by the person erecting the hoarding. It was held that 
 such a person was not rateable as occupier of an adver- 
 tising station, and that his name was therefore wrongly 
 inserted in the valuation list. 
 
 The second point was raised two years before the 
 passing of the Act, in Taylor v. rendlcton^ which decided 
 that if it could be shown that the person who used land 
 for advertising purposes was in occupation of the land, 
 then he was rateable for such occupation. The test is 
 whether the advertising agent is merely a licencee, or has 
 he the right to exclude others, including the owners of 
 the land, from interfering with his possession ? A land- 
 owner agreed to let an advertising station at a yearly rent 
 to an advertising agent, who agreed to pay the rates and 
 taxes. By another agreement the landowner agreed to 
 allow the agent to erect an ordinary hoarding, for which 
 the agent was to pay a yearly rent. The first agreement 
 was limited to seven years, and the second to three years. 
 The hoardings were supported by posts fixed into the 
 ground. In one instance the structure was used partly 
 by the owner as a shed and partly by the advertising 
 agent as a hoarding ; in the second instance, the structure 
 was used exclusively by the agent as a hoarding. It was 
 held that each of the agreements created a tenancy and 
 conferred an exclusive occupation, and not merely a 
 licence, and therefore the advertising agent was liable to 
 be rated to the relief of the poor in respect of both hoard- 
 ings as occupier of an advertising station. 
 
 Two years later the Act was passed with the object, to 
 quote the preamble, of removing the difficulties which had 
 arisen as to the right person to be rated for occupied or 
 1 19 Q. B. D. 288.
 
 68 ADVEllTISEMENTS 
 
 unoccupied laud used foi* advertising. In addition to sees, 
 3 and 4, which deal with the principal object of the bill, sec. 
 5 controls the manner of exercising the licences issued by 
 the local authority to (a) erect hoarding in roads, (h) to use 
 such hoarding for advertising. Two cases of the use of land 
 for exhibition of advertisements arc dealt with in sees. 3 
 and 4. Sec. 3 deals with land not occupied, and therefore 
 not rateable, upon which advertisement hoardings have 
 been erected ; sec. 4 deals with the user of hereditaments 
 which are occupied, and therefore rateable. The person who 
 is to be assessable in each case is indicated as follows : — 
 
 "Sec. 3, — Where any laud is used permanently or tempo- 
 rarily for the exhibition of advertisements or for the erection 
 of any hoarding, frame, post, wall, or structure used for 
 the exhibition of advertisements, but not otherwise occu- 
 pied, the person who shall permit the same to be so used, 
 or (if he cannot be ascertained) the owner thereof shall 
 be deemed to be in beneficial occupation of such land or 
 part thereof, and shall be rateable in respect thereof to the 
 relief of the poor and to all local rates, according to the 
 value of such use as aforesaid. 
 
 " Sec. 4, — Where any land or hereditament occupied 
 for other purposes, and rateable in respect thereof to the 
 relief of the poor and local rates, is used temporarily or 
 permanently for the exhibition of advertisements, or for 
 the erection thereon or attachment thereto of any hoarding, 
 frame, post, wall, or structure used for the exhibition of 
 advertisements, the gross and rateable value of such land 
 or hereditament shall be so estimated as to include the 
 increased value from such use as aforesaid." 
 
 Two years after the passing of the Act the first case 
 under it was tried. ^ C. was a contractor for the erection 
 
 • aiapppll V. the Overseers of St. Bololph, 1892, 1 Q. B. 561.
 
 THE RATING OP ADVERTISING STATIONS Of) 
 
 of buildings upon land vested in the Postmaster-General. 
 Ho put up a hoarding round the land on which the build- 
 ings were to be erected, and, in pursuance of a clause in 
 the contract permitting the use of the hoarding for adver- 
 tising purposes, let the hoarding to a firm of advertising 
 contractors. The hoarding was erected upon the public 
 street under a licence granted by the Commissioners of 
 Sewers. It was held that the hoarding had been erected 
 upon " laud not otherwise occupied " within the meaning 
 of sec. 3, that C. was the person who had " permitted " 
 the land to be used for the exhibition of advertisements 
 within the meaning of that section, and that he must, 
 therefore, be deemed to be in beneficial occupation of the 
 land. This decision has been discussed and questioned 
 by an authority,^ who points out that C. was not the 
 o\vner of the hoarding, the hoarding was not put up by 
 him, it was not fixed to the soil, nor was the land on 
 which it stood in his occupation or, in fact, occupied at 
 all, for it was in the public street. He puts the follow- 
 ing hypothetical case : Suppose A owned the hoardings and 
 permitted B to use them for advertisements, and B per- 
 mitted C, and C again permitted D, and D actually used 
 the hoardings for advertisements. Are A, B, C all rate- 
 able, or only B ? 
 
 Each case must be decided on its particular facts. 
 In Burton v. St. Giles' and St. George's Assessment Com- 
 mittee,^ A, who was putting up certain buildings erected 
 certain hoardings, and B, under agreement with A, used the 
 hoardings for the exhibition of advertisements. It was a 
 term of the agreement that the contract should not give 
 B any interest in the premises upon which the advertising 
 station was to be erected, or in any way make him liable for 
 
 ' 56 J. P. 243. - 1900, 1 Q. B. 389.
 
 70 ADVERTISEMENTS 
 
 rates or taxes during the continuance of the agreement. 
 B's name was inserted in the valuation list as being the 
 rateable occupier of the hoardings under sec. 3. B con- 
 tended that he was not in the exclusive occupation of the 
 advertising station or the hoardings, and that he did not 
 " permit " the land upon which the hoardings were erected 
 to be used for the exhibition of advertisements. Was he, 
 by virtue of sec. 3, to be deemed to be in beneficial occu- 
 pation of the land on which the advertising station and 
 the hoardings were erected ? It was held that he did 
 not " permit " the land to be so used, and could not be 
 deemed the beneficial occupier. 
 
 In Shelley v. Dillon ^ an advertisement contractor had, 
 by permission of the occupier of a field, erected a hoard- 
 ing on the wall of a field, and used the hoarding for the 
 purposes of advertising. It was held that the occupier of 
 the field, and not the contractor, was the person to be rated 
 under sec. 4, 
 
 Sec. 5 runs : — " Where, under any power vested in them 
 by any local or general Act, any corporation, board, vestry, 
 urban sanitary or other authority, shall grant a licence 
 for the temporary erection of any board, gantry, scaffold, 
 or other structure, upon or over any part of any public 
 highway, or upon or over any lands or hereditaments the 
 property of such corporation, board, vestry, urban sanitary 
 or other authority, such corporation, board, vestry, sanitary 
 or other authority, may include in such licence a condition 
 or conditions prohibiting the affixing of any advertise- 
 ment to any such board, gantry, scaffold, or other 
 structure, or sanctioning the affixing of advertisements 
 thereto upon payment of such sum and on such con- 
 ditions as the corporation, board, vestry, sanitary or other 
 
 » 30 L. R. Ir. 304.
 
 THE RATING OF ADVERTISINQ STATIONS 71 
 
 authority granting the licence may determine. And any 
 person using any such board, gantry, scaffold, or other 
 structure, otherwise than as permitted by such licence, 
 shall for every offence be liable to a penalty not exceed- 
 ing five pounds, and a further sum not exceeding forty 
 shillings for every day during which such offence shall 
 be continued after notice in writing to discontinue such 
 use shall have been given to such person by such 
 corporation, board, vestry, sanitary or other authority, 
 which penalties may be recovered in a summary way by 
 such corporation, board, vestry, sanitary or other authority. 
 
 "The amount of any payments received or penalties 
 recovered under this section shall be applied by the 
 corporation, board, vestry, sanitary or other authority 
 receiving the same in aid of the rate levied for the repair 
 of the highway." 
 
 Whilst giving power to the local authority to pro- 
 hibit advertisement hoardings, sec. 5 leaves untouched 
 the non-rateability of the licencee, who is no more rate- 
 able under the Act than he was before. One of the first 
 points to determine in these cases is. Is it merely a 
 licence, or is it an exclusive interest ? 
 
 " An exclusive licence is a leave to do a thing, and 
 a contract not to allow any one else to do the thing ; but 
 unless coupled with a grant, it confers, no more than any 
 other licence, any interest or property in the thing, and 
 the licencee has no title to sue in his own name." ^ The 
 " free and uninterrupted use of a garden-wall," by T., the 
 owner, in return for monthly payments to P., an adver- 
 tisement contractor, for the display of a frame of advertise- 
 ments, although expressed in the agreement "not to be 
 a lease," amounts to a personal covenant that T. would 
 
 « Hecq) V. HurtUy, 42 Ch. D. 4G1.
 
 72 ADVERTISEMENTS 
 
 not interfere with P.'s enjoyment.^ A contract giving 
 an exclusive right to advertise and let spaces for adver- 
 tisements in certain parts of a theatre does not confer 
 "an interest in land" which could form the subject of 
 compensation under the Lands Clauses Consolidation Acts.^ 
 
 An advertisement hoarding in a field on a hedge- 
 bank running parallel to a street, a strip of land between 
 the hoarding and the street, varying from 2 feet to 3 feet 
 4 inches in width, does not " abut on the street." ^ Adver- 
 tisement cases illuminated by electric light, and fixed 
 upon the front walls of a building, and projecting 10 inches 
 beyond the building line but less than an existing cornice 
 which was 2 feet beyond the Irailding, are not " structures " 
 within the meaning of sec. 22 of the London Building 
 Act of 1894.* Letters fixed to an iron trellis supported 
 on a pallisade which surmounted one of the end walls of 
 a large building, the dome of which was some 30 feet higher 
 than and separated from these letters, are not a sky sign 
 within the meaning of 54 & 55 Vict. c. 78.^ A wooden case 
 attached to the external wall of a building by iron brackets, 
 and used as an advertisement sign, is not a projection 
 within the meaning of sec. 73, sub-sec. 8 of the London 
 Building Act, 1894, which applies only to projections 
 forming part of the building from which they project.^ 
 
 Posters fixed to a hoarding with the consent of the owner 
 of the hoarding are property, and a person who tears them 
 
 * Tunmer v. Partington Advertising Co., C8 J. P. 319. 
 
 2 Frank Warr & Co. v. the London County Council, 1904, 1 K. B. 713; 
 Bidy V. Edwurdes, 17 T. L. E. 115. 
 » Barnttt v. Lovell, G8 J. P. 93. 
 
 * The London County Council Y. the Illuminated Advertising Co., 68 
 J. P. 445. 
 
 ' Tusnaud V. tlie London County Council, 57 J. I*. 185. 
 « Hidl v. the London County Council, 1901, 1 Q. B. 581.
 
 THE RATING OP ADVERTISTNQ STATIONS t-l 
 
 down defaces them, and may be convicted under 24 & 25 
 Vict. c. 97, s. 52.^ A wooden stand outside a club house, 
 which obstructs a neighbour's view, is a mere amenity 
 which cannot be protected.^ Scattering from a van over 
 the roadway printed bills advertising a performance at the 
 theatre may amount to " throwing or allowing any litter " 
 in a thoroughfare under sec. 60 of the Metropolitan 
 Police Act, 1839 ; but it is a question of fact for the 
 magistrate in each case to decide whether such paper was 
 " litter " or not within the meaning of the section.^ 
 
 A curious point arose in the case of the Partington 
 Advertising Co. v. Willing & Co. {Limited),^ heard by 
 Kekewich, J., in 189G. By an agreement dated March 
 22, 1895, E., the owner of certain premises in the Strand, 
 which had been pulled down and cleared for a new build- 
 ing then in progress, let the hoarding, which extended 
 over part of the public street, to P., at a rent of £8 a 
 month, for advertising purposes. Thereupon, on March 
 28, P. took possession of the hoarding, printed up their 
 name, and prepared to display their posters and advertise- 
 ments thereon. On the same day the builders let the 
 hoarding to W. for advertising purposes, whereupon the 
 next day, March 29, W. proceeded to post their bills over 
 P.'s. P. had not obtained any licence for advertising, 
 under sec. 5 of the Advertising Stations (Eating) Act, 
 1899, but W. had done so, though not till after putting up 
 their posters. The building agreement between E. and 
 the builders contained this clause: "The hoardings are not 
 to be let for advertising, nor are any bills, placards, or 
 
 » R. V. Mlhain, 1 T. L. R. 159. 
 
 * Foli V. the Devonshire Club, 3 T. L. R. 760. 
 « Eilh V. I>«i'/«.s 67 J. P. 198. 
 
 * 12 T. L. R. 176.
 
 74 ADVERTISEMENTS 
 
 notice-boards, of any kind or description, to be placed 
 upon the hoardings, fans, etc." Kekewich, J., held that 
 the hoarding belonged not to the building owner, but to 
 the builders. The clause in the agreement bound the 
 building owner and the builders as between themselves, 
 and when the builder let the hoarding to some one else, 
 he did so subject to the claim of the building owner to 
 enforce his agreement by an action for damages. If the 
 case stopped at P.'s want of title, the only thing to do 
 would be to dismiss the case with costs. But there was 
 an infirmity in W.'s title also, for W. had taken possession 
 of the hoarding before the date of their licence, and they 
 had just as much title to it as P., which was none at all. 
 Neither P. nor W. was in the right, and he dismissed the 
 action without any order as to costs.
 
 CHAPTER V 
 
 advertising schemes and the lottery and betting acts 
 1. Lottery Advertisements. 
 
 Schemes adopted by advertisers for popularizing their 
 wares sometimes involve competitions which are closely- 
 akin to the gaming and lottery schemes prohibited by 
 law. Of the numerous Acts of Parliament passed between 
 1G99 and 1846 for the suppression of lotteries, fourteen 
 are still in existence, and five contain provisions relating 
 to the advertising of lottery schemes. Lotteries were 
 declared nuisances by 10 & 11 Wm. III., and that statute 
 was followed by 9 Geo. I. c. 19, which imposes a penalty 
 of £200 for setting up any lottery by virtue of a grant 
 from any foreign prince, or issuing any advertisements 
 relating to the same. It has been decided that this statute 
 only applies to lotteries in this country.^ By 12 Geo. II. 
 c. 28, the same penalty was imposed for setting up sales 
 by lotteries or for advertising for advances of sums of 
 money " to be distributed by way of lottery." Any person 
 publishing any scheme for the sale of tickets in any lottery 
 authorized by any foreign potentate or to be drawn in any 
 country is liable, under sec. 60 of 4 Geo. IV. c. 41, to a 
 fine of £50 and to be dealt with as a rogue and vagabond ; 
 and 6 & 7 Wm. IV. c. 66 imposes a penalty of £50 on any 
 person who prints or publishes any advertisement or other 
 notice relating to the drawing of any foreign or other lottery 
 ' MacNee v. Fenian Investment Corporatian, 44 Ch. D. 306.
 
 76 ADVERTISEMENTS 
 
 not authorized by Parliament; and the same penalty is 
 imposed for printing advertisements of the sale of tickets 
 or chances in any lottery. With the view of saving 
 newspaper proprietors the annoyance of being sued for 
 inadvertently advertising lotteries, provision is made by 
 59 Vict. c. 74 for (1) staying judicial proceedings on 
 certain conditions; (2) preserving half the penalty im- 
 posed for the Crown ; and (3) instituting proceedings in 
 the Attorney-General's name. 
 
 In nearly all the cases cited hereafter a good deal of 
 discussion has arisen as to the legal definition of a lottery. 
 More than one learned judge have accepted Johnson's 
 definition as a " distribution of prizes by lot or chance," 
 but this, as Mr. Stutfield points out,^ is obviously incom- 
 plete, since it does not exclude the case of provident and 
 building societies where the distribution of shares as 
 dividends or profits is settled by lot or chance. Other 
 elements must be added to the definition. Not only must 
 the distribution of prizes be by lot or chance, but it must 
 be connected with a fund where (a) the shares do not 
 represent the contribution of recipients, or (h) the sub- 
 scription of shares to the fund must be made for the 
 purpose of dividing the fund between them by chance 
 and unequally. A company or partnership which dis- 
 tributes dividends or profits by drawing lots stands on 
 a different footing, for although the distribution is by 
 chance it is not imequal. One authority^ suggests the 
 following test of a lottery: There must be an agree- 
 ment or scheme contemplating that, in consideration of 
 subscriptions paid by the adventurers, certain property (be 
 it the fund subscribed or otherwise) is to be allotted to 
 
 ' Stutlield's " Law Relating to Betting," 3rd ed., p. 128. 
 - Ibiil, p. HI.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 77 
 
 some ouG or more exclusively of the other adventurers, or 
 distributed unequally among them; such allotment or 
 distribution to be determined by lot. But (a) agreement 
 may be among the subscribers themselves, as in the case 
 of a sweepstakes, or by the subscribers, with a person who 
 is getting the lottery up, perhaps for his own profit ; (h) it 
 must be part of the scheme that some of the adventurers 
 should win and others should lose ; (c) the distribution of 
 the prizes must be by lot or chance, differing from a wager ; 
 (d) the distribution of the prizes must be in consideration 
 of property subscribed by the adventurers out of property 
 belonging to them individually; (c) the distribution of 
 the prizes by lot must be the main substantial part of the 
 scheme to which the adventurers subscribe. The value of 
 this test is seen when the decided cases are considered. 
 Several cases pertain to the class of lottery sales, or 
 ordinary business transactions with which lotteries are 
 associated for the purpose of attracting the attention of 
 the public. In Taylor v. Smetten^ packets of tea were 
 sold in a tent, each packet containing a coupon entitling 
 the purchaser to a prize later on. The tea was good and 
 worth the money paid for it, but the prizes varied in 
 character and value. Hawkins, J., decided that the 
 purchaser bought the tea coupled with the chance of 
 getting something of value by way of a prize, but without 
 the least idea what the prize might be. " What he got 
 he got as the result of mere chance or accident." The 
 proceedings therefore amounted to a lottery. The case of 
 Ru7it V. Williams^ differed from Taylor v. Smetten in 
 that there was no advertisement or announcement in the 
 former of what the packets sold contained, whereas in the 
 latter the trader announced that the packets contained a 
 
 ' 11 Q. B. D. 207. "" 52 J. P. 821.
 
 78 ADVERTISEMENTS 
 
 prize coupon. It is interesting to compare these cases 
 with Caminada v. Ilulton^ where a scheme of attaching 
 prize coupons to the article sold was held to be no 
 lottery. To increase the sale of a publication, the 
 defendant appended to each copy a coupon, which the 
 purchaser might if he chose fill up with the names of 
 the horses he thought likely to win one or more races. 
 Certain conditions were set forth, and the persons suc- 
 cessful in selecting a given number of winners were 
 entitled to a prize. On the point as to whether the com- 
 petition was a lottery, the judges held that as the 
 competitors selected their own horses, there was no dis- 
 tribution by lot, and therefore there was no contrivance 
 to obtain money by chance. To constitute a lottery, it is 
 necessary that the result of the competition must depend 
 entirely, and not merely partly, on chance. The question 
 was discussed by A. L. Smith, L. J., in Hall v. Gox^ where 
 a newspaper had offered £1000 to the reader who pre- 
 dicted the correct number of births and deaths in London 
 in a given week. A clear distinction was there drawn 
 between competitions which depended largely, but not 
 entirely, on chance, and competitions where the result 
 rests wholly and entirely on chance. The skill necessaiy 
 to investigate statistical tables so as to gather the probable 
 number of births and deaths was held to exclude the case 
 from lottery competitions. In the " missing-word " com- 
 petition the same distinction had been drawn. Stirling, J., 
 discussed the subject at length in Barclay v. Pearson,^ 
 where a newspaper published a paragraph from which the 
 last word had been omitted, and invited the readers to 
 cut out a coupon and fill in tlie missing word. It 
 
 ' 60 L. J. M. (\ 116. « 1899. 1 Q. V,. 190. 
 
 => 1893, 2 Ch. 155.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 79 
 
 appeared that the word to which success attached was not 
 fixed until after all the coupons had been sent in, aiid 
 was then chosen by selecting from a bag one of twenty or 
 thirty pieces of paper, on which had been written words 
 which were more or less appropriate solutions. Eeaders 
 were asked to supply " the word," and not " a word," and 
 as the selection of the word was a matter of chance, the 
 competition was held to be a lottery. 
 
 The legal relations of English promoters to foreign 
 lotteries are discussed by Chitty, J., in McicNcg v. Persian 
 Investment Corporation} In that case a company had 
 been formed to acquire and work a concession conferring 
 the exclusive privilege of conducting all operations in 
 connection with lottery loans in Persia. A shareholder, 
 contending that the enterprise was in contravention of the 
 Lottery Acts, sought to restrain the company from carry- 
 ing out the scheme. Mr. Justice Chitty, however, held 
 that the proposed purchase of the concession was not 
 unlawful, since the company were not attempting to erect 
 or set up any lottery in this country within the meaning 
 of 9 Geo. I. c. 19, s. 4. That learned judge made it 
 perfectly clear that there is nothing in the Lottery Acts to 
 prevent two Englishmen in this country, British subjects, 
 from putting together a fund for the purpose of employing 
 that fund in erecting a lottery in a foreign state where 
 foreign lotteries are lawful. As to 6 & 7 Wm. IV. c. 66, 
 which was passed to prevent the advertising of foreign 
 and other illegal lotteries, Chitty, J., declined to hold that 
 a prospectus was within the general words at the end of 
 the section — "any advertisement or other notice of or 
 relating to the drawing or intended drawing of any foreign 
 lottery." A mere general statement as to the number of 
 
 ' 44 Cli. D. 307.
 
 80 ADVEllTISEMENTS 
 
 annual issues in Persia and the minimum drawings, which 
 
 was in effect what tlie prospectus amounted to, was in the 
 opinion of the judge not an advertisement or notice of 
 such lottery within the meaning of the section. 
 
 Lottery Sales illegal if Eight to Prizes he ascertained hy 
 Chance. — H.,* a hawker of watches, announced what he 
 called the " Eastern Bazaar," to he conducted " according 
 to the principle of the Ai't Union." There were to be 
 5000 tickets of Is. each, and in the prospectus it was 
 stated that bonuses "to the amount of £250 were to 
 be distributed." The chief " bonuses " consisted of eight 
 articles, either clocks or watches, varying in value from 
 £12 to £2. The other " bonuses " were so arranged that 
 every subscriber obtained something. Every person who 
 paid Is. obtained a ticket, with a distinguishing number, 
 on presenting which reference was made to a book, and the 
 holder was informed of the " bonus " he had obtained. H. 
 was indicted for keeping a lottery. The jury found him 
 guilty, and they also found that the subscribers did not in 
 all cases obtain full value for the shilling. Per M. Smith, 
 J. : " Whether the full value of the shilling was or was 
 not received by the subscribers, the case comes equally 
 within the mischief against which the Act prohibiting 
 lotteries was directed, inasmuch as the subscribers were 
 induced to part with their money in the hope of obtaining 
 not only their alleged shilling's worth, but something of 
 much greater value, the right to which was to be ascer- 
 tained by chance." 
 
 Distribution of Presents at a Sale amounts to Lottery. — 
 M.^ gave a musical entertainment, to which admittance was 
 
 » Reg. V. Harris, 10 C. C. C. 352. 
 * Monis V. Blachman, 28 J. 1'. 199.
 
 COMPETITIONS AND THE LOTTERY AND BETTINO ACTS 81 
 
 obtained by tickets sold at a shop kept by J. After the 
 entertainment, at which M. was assisted by J., M. dis- 
 tributed a number of presents to persons occupying 
 numbered seats, who had paid a sum of money for 
 admission generally to the room. Held to be a lottery 
 within sec. 2 of the 45 Geo. III. c. 49. 
 
 Wlicre the Prizes given at a Sale are the Result of Mere 
 Chance or Accident, the Transaction is a Lottery. — T.^ erected 
 a tent in which he sold packets, each containing a pound 
 of tea, at 2s. Qxl. a packet. In each packet was a coupon 
 entitling the purchaser to a prize, and this was publicly 
 stated by T. before the sale, but the purchasers did not 
 know until after the sale what prizes they were entitled 
 to, and the prizes varied in character and value. The tea 
 was good, and worth the money paid for it. Held, that 
 what T. did constituted a lottery within the meaning of 
 the statute. Per Hawkins, J. : " Nor can it be doubted 
 that, in buying a package, the purchaser treated and con- 
 sidered it as a purchase of the tea and the coupon, what- 
 ever its value might turn out to be. In other words, he 
 bought the tea coupled with the chance of getting some- 
 thing of value by way of a prize, but without the least 
 idea what that prize might be. In making his purchase 
 he exercised no choice. What he got he got without any 
 option or action of his own will, but as the result of mere 
 chance or accident." 
 
 Absence of Advertising in Lottery Sale renders the 
 Transaction none the less Illegal. — H.'^ kept a sweet-stuff 
 
 1 Taylor v. Smetten, 11 Q. B. D. 207. 
 • Hunt V. WiUiamK, 52 J. P. 821. 
 
 G
 
 82 ADVERTISEMENTS 
 
 shop, and sold penny packets of American caramel. Some 
 of the packets sold contained, in addition to the sweetmeats, 
 a halfpenny, and some two halfpence. All the packets 
 contained a fair pennyworth of sweetmeats, hut there 
 had been no advertisement or announcement of any kind 
 that money was so contained. Held, that H. was rightly 
 convicted for keeping a lottery within the meaning of 
 42 Geo. III. c. 119, s. 2, and 5 Geo. IV. c. 83, s. 21. Per 
 curiam (Wills, J., and Grantham, J.) : " We think it 
 can make no difference that there was no advertising of 
 these prizes, for the fact might become equally well known 
 without advertisement." 
 
 Coupons hearing Guesses no Contrivance to obtain Money 
 by Chance, and tlierefore no Lottery. — H.^ published weekly 
 a sporting handbook, giving a list of horse-races coming 
 off. Added to the paper was a blank coupon, inviting the 
 purchaser to name six, five, or four winning horses, and 
 return the coupon ; if he guessed rightly, a prize was to 
 be given according to number of guesses. There was no 
 regular office for the sale of the paper, but it was obtained 
 chiefly through newsagents. C, a detective inspector, 
 summoned H. for committing an offence under the Betting- 
 House Act, 16 & 17 Vict. c. 119, and under the Lotteries 
 Act (Geo. IV. c. 60, s. 41), and under 37 Vict. c. 15, s. 3. 
 It was contended on behalf of C, that the transaction of 
 pvirchasing the handicap-book was an invitation of persons 
 by advertisement exhibited and published in the book 
 to take a share in connection with a lottery contrary 
 to statute. The magistrate dismissed the summons, and 
 Day, J., and Lawrance, J., upheld his decision. Per Day, J. : 
 
 ' Caminada v. HuUon, CO L. J. M, C. IIG.
 
 COMPETITIONS AND THE LOTTERY AND BETTINO A-CTS 83 
 
 " This was not the case of a lottery, there being no con- 
 trivance to obtain money by chance. It has been contended 
 that the purchaser of one of these books makes a bet when 
 he returns a coupon, stating that he has backed six horses ; 
 but I am unable to see how it is a bet. The purchaser of 
 one of these books, even if not successful in guessing the 
 right horse, loses nothing. Moreover, the house or office 
 where the books are sold is not a betting office, but only 
 a newspaper oflficG. There is difficulty in gaining a prize, 
 but nothing to show how there is anything like ordinary 
 betting." 
 
 Missing-word Competition a Lottery. — P.,^ who was 
 the proprietor of a newspaper, carried on in its columns 
 a missing-word competition. He published in his paper 
 a paragraph omitting the last word. In the same paper 
 he printed a coupon, with a direction that persons wishing 
 to enter the competition must cut out the coupon, fill in 
 the word missing from the paragraph, together with their 
 names and addresses, and send it, with a postal order for 
 Is., to the office of the paper. It was further stated in 
 the paper that the missing word was in the hands of a 
 chartered accountant, enclosed in a sealed envelope ; that 
 his statement with regard to it would appear with the 
 result of the competition in a subsequent issue of the 
 paper; and that the whole of the money received as 
 the entrance fees would be divided equally amongst those 
 competitors who filled in the missing word correctly. 
 In an action by B. and other successful competitors 
 against P. and the unsuccessful competitors, seeking 
 administration of the trusts of the moneys in the hands 
 of P. for the purposes of the competition and distribution 
 
 ' Barclay v. Pearson, 1893, 2 Ch. 155.
 
 84 ADVERTISEMENTS 
 
 among the persons entitled thereto : — Held, (1) that the 
 competition constituted a lottery within the meaning of 
 42 Geo. III. c. 119, and was illegal; (2) that so far as 
 the money in the hands of P, was impressed with any 
 trust, it was one which had arisen out of an illegal trans- 
 action, and the Court would not render any assistance 
 in its administration ; and semhle, (3) that notwithstanding 
 the illegality of the competition, the competitors had a 
 legal right, enforceable by an action at law, to the return 
 of their contributions at all events, provided that they 
 gave notice of their claim before the money had been 
 distributed by P. 
 
 Results of Lottery must depend entirely on Chance, or 
 the Proceeding not Illegal. — C.^ published a newspaper. The 
 Bochet, which offered a prize of £1000 in a competition. 
 The conditions of the competition stated that according 
 to the Eegistrar-General's returns, the number of births 
 and the number of deaths in London during the week 
 ending December 12, 1896, were — births (males) 1342; 
 (females) 1213; deaths, 1539. A prize of £1000 was 
 offered by the Rochet for a correct prediction of the 
 numbers of male and female births, and the number 
 of deaths in London during the week ending December 11, 
 1897. A competitor was to fill in a voucher, published 
 with the issue which contained the offer, with the number 
 of births (male and female) and of deaths predicted, in 
 spaces left blank for the purpose, and to send the voucher 
 so filled in, together with a coupon cut from the front 
 page of the Bocket, to the office of that paper. H. claimed 
 that a voucher sent in by him had fulfilled all the con- 
 ditions for the prize of £1000, and that the figures filled 
 » HuU V. Gox, ISGO, 1 Q. B. 199.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 85 
 
 in were correct according to the return subsequently 
 issued by the Eegistrar-Geucral. At the trial the jury 
 passed a verdict for H., but, C. then raising the point that 
 the competition was a lottery, Lawrance, J., directed judg- 
 ment to be entered for C. Held (in the Court of Appeal), 
 that the competition, not being one the result of which 
 depended entirely on chance, was not a lottery. Per A. L. 
 Smith, L.J. : " The result no doubt depends largely on 
 chance, but not entirely, and the cases show that to con- 
 stitute a lottery it must be a matter depending entirely 
 upon chance. There is an element of skill in the inquiry 
 in this case, dependent on the investigation of the returns 
 for previous years, and the consideration of the increase 
 of population and death-rate and such-like statistical 
 investigations." 
 
 To acquire the Rigid of conducting Lottery Loans 
 Abroad is Lawful, since it does 7iot erect or set up any 
 Lottery in England. — P.^ was a company, of which M. was 
 a shareholder, formed to acquire and work a concession 
 conferring the exclusive privilege of conducting all 
 operations in connection with lottery loans in Persia. The 
 prospectus referred to the profits made on the continent 
 by lotteries, and stated that the operations of the company 
 would be conducted upon the lines adopted by European 
 States where Government lotteries were in vogue, and that 
 " at least five issues have to be made annually in Persia, 
 with minimum drawings of £10,000, and it is estimated 
 that these operations should return continuously increasing 
 dividends." The company had agreed to purchase this 
 concession. M. as a shareholder commenced an action to 
 restrain the company from acquiring and from publishing 
 
 ' MacNee v. rersicm Inveslmeid Corporation, 44 Cb. D. 306.
 
 S6 ADVERTISEMENTS 
 
 any prospectus or scheme relating to the acquisition of 
 this concession, and from publishing any advertisement 
 or notice in any manner relating to such lottery loans, and 
 from applying the funds of the company in the purchase 
 of the said concession, on the ground that the enterprise of 
 the company was illegal and in contravention of the Lottery 
 Acts. The action failed. Per Chitty, J. : " The illegality 
 alleged is illegality under the Lotteries Acts, and the only 
 Act that counsel for the plaintiff has been able to point to as 
 being the Act which makes the contract illegal is 9 Geo. I. 
 c. 19, s. 4. The words principally relied on were 'erect- 
 ing, setting up, constructing, keeping or using, or procuring 
 to be erected or set up.' The company by virtue of its 
 contract do not propose to set up any lottery in this 
 country ; . . . the Act of Parliament is unquestionably 
 directed against the erection of lotteries in this country. 
 The legislature of Great Britain of that day did not intend 
 to exercise any jurisdiction over lotteries in foreign 
 countries, kept and carried on exclusively in foreign 
 countries; and there is nothing in this Act, nor indeed 
 in any of the Acts that I have been refen-ed to, which 
 would prevent two Englishmen in this country, British 
 subjects, from putting together a fund for the purpose of 
 employing that fund in erecting a lottery in a foreign 
 state where foreign lotteries are lawful. 
 
 2, Betting Advertisements. 
 
 Apart from the Betting and Loans (Infants) Act of 
 1892 (55 Vict. c. 4, s. 1), which makes it a penal offence 
 to send betting advertisements to infants,^ certain classes 
 of advertisements are prohibited by the Gaming Act of 
 
 ' See Chapter X.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 87 
 
 1853 and the Amending Act of 1874. The first section of 
 the principal statute created two offences : («) keeping a 
 house for the purpose of " betting with persons resorting 
 thereto ; " (b) keeping a house for the purpose of money 
 being received as consideration of an undertaking to pay 
 money on an event or contingency relating to a horse- 
 race. By sec. 7 two kinds of advertisements are ren- 
 dered unlawful : (1) advertisements of houses kept for 
 the purpose of " betting with persons resorting thereto ; " 
 and (2) advertisements of houses kept for the purpose of 
 exhibiting betting lists. By sec. 3 of the Amending Act 
 of 1874 (37 Vict. c. 13), three offences are created in 
 respect of betting advertisements, namely : (a) advertise- 
 ments of persons who will on application give information 
 or advice with respect to any bets or wagers as are men- 
 tioned in the principal Act, or will make, on behalf of any 
 other person, any such bets or wagers as are mentioned in 
 that Act (sec. 1) ; (h) advertisements of houses where 
 information or advice with respect to such bets or wagers 
 may be obtained (sec. 2); (c) advertisements inviting 
 persons to make such bets or wagers (sec. 3). The wider 
 application implied in the amending Act created the im- 
 pression that people were prohibited from advertising 
 themselves as ready to give information or " tips " with 
 respect to ordinary betting transactions. The case of Cox 
 V. Andrews,'^ heard in 1883, made it clear that the later 
 statute only prohibited advertisements of betting carried 
 on in any office or place used for the purpose of illegal 
 betting within the meaning of the principal Act. In recent 
 years an entirely different question has arisen for the con- 
 sideration of the courts. Prior to the amending Act of 
 1874, many of the betting fraternity had migrated to 
 ' 12 Q. B. D. 130.
 
 88 ADVERTISEMENTS 
 
 Scotland, which was expressly excluded by sec. 20 of the 
 principal Act, and advertisements of betting houses, so 
 long as those houses were in Scotland, and therefore legal, 
 were no contravention of sec. 7. Anderson's Act, as the 
 amending statute was called, put an end to this by extend- 
 ing the principal Act to Scotland. In the same way, 
 members of the betting fraternity have transferred their 
 activities to Holland or some other part of the Continent, 
 in the belief that the fact of their offices being situated 
 out of our jurisdiction is sufficient to prevent the business 
 which is advertised in London papers from constituting 
 an offence against the Betting Act of 1853. Most of the 
 cases which have come into court relate to the coupon 
 competitions advertised in sporting newspapers, in which 
 the readers are invited to fill up a coupon with the results 
 of certain impending horse-races or other contests, and to 
 forward the same either to the offices of the newspaper or 
 to some address in Holland. Where the coupon competi- 
 tion is conducted wholly in England, the receipt of filled- 
 up coupons, accompanied by remittances of money, brings 
 the newspaper offices within the second part of sec. 1 
 of the Act of 1853, as " an office kept for the purpose of 
 money being received as consideration for undertaking to 
 pay thereafter money on events relating to horse-races." ^ 
 On the other hand, it has been held that such a competi- 
 tion is no lottery.^ Whether it is a betting transaction 
 or not is a question of fact proper for the finding of the 
 magistrate.^ A newspaper office may be an essential part 
 of the machinery for receiving money for the purpose of 
 illegal betting,* even where money has not been received 
 
 > Ecg. V. Stoddart, 1901, 1 Q. B. 177. 
 ■ (laminarla v. nnlton, <iO L. J. M. C. 116. 
 3 Sfoddnrt v. Scuiar, 1895, 2 Q. B. 475. 
 * Hawke V. MacKenzic, 1902, 2 K. B. 2l6.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACT8 89 
 
 there.^ In order to constitute an offence against sec. 1, it 
 is not necessary that the money sent in with the coupons 
 should be intended to be received at the house itself, nor 
 need the intended place of receipt be within the United 
 Kingdom.'^ " Eesorting " to a betting-house within sec. 1 
 means physically resorting thereto,^ and sending letters 
 and telegrams relating to bets to a house does not amount 
 to physically resorting to the house within the meaning of 
 sec. 1 of the principal Act.* To bring an advertisement 
 within sec. 7 of the principal Act, it must appear by 
 reasonable inference to refer to the two classes of betting 
 prohibited therein.^ 
 
 To constitute an Offence, Money need not he received at 
 the Newspaper Office, nor need the Place of Receipt he witJiin 
 the United Kingdom. — S.^ was the owner of a weekly 
 newspaper published at an office in Eed Lion Court, Fleet 
 Street. He carried on in its columns a series of coupon 
 competitions, in which prizes were given to such persons 
 as should correctly guess the result of impending horse- 
 races or football-matches. Their guesses were written on 
 certain forms called " coupons," which so filled up were 
 sent by them to S., together with Id. for each guess made. 
 The coupons were procurable at S.'s office, either with or 
 separably from the newspaper, free of charge. In accord- 
 ance with the instructions in the advertisement in S.'s 
 paper, both coupons and remittances were addressed to 
 " Sporting Luck, Middelburg, Holland." Eemittances were 
 
 * Lennox v. Stoddart, 66 J. I'. 469. 
 ^ Reg. V. Stoddart, 111. 
 
 3 Beg. V. Brown, 1895, 1 Q. B. 119. 
 
 ♦ Ihid. 
 
 ' Ashley and Smith v. Huicke, 67 J. P. 361. 
 « Stoddart v. Hawb; 1902, 1 K. B. 353.
 
 90 ADVERTISEMENTS 
 
 to be made payable to S., and later to G. S., who was S.'s 
 son. At the post-office postal orders were cashed, payable 
 either to.S. or to G. S., and returned from Holland, amount- 
 ing to £9683. Among postal orders returned for payment 
 through Dutch bankers, with whom G. S. had an account, 
 were numerous orders identified as having been sent to S. 
 and G. S. for the competition. S. was charged under sec. 
 1 of the Betting Act, 1853, with keeping an office in Eed 
 Lion Court for the purpose of money being received by or 
 on behalf of the keeper of the house as the consideration 
 for undertakings to pay money on events relating to horse- 
 races or games. He was convicted. Held, on appeal, that 
 to constitute an offence under that section it is not neces- 
 sary that the money should be intended to be received at 
 the house itself, nor need the intended place of receipt be 
 within the United Kingdom. 
 
 Newspaper Office may he Part of Macliincry for receiving 
 Money for Betting. — M.^ was the occupier of an office in 
 London and the proprietor of a newspaper called Football 
 Chat, published at that office. T. conducted at Middcl- 
 burg, in Holland, a football coupon competition, that is to 
 say, a scheme in which there was a promise by T. to pay 
 a sum of money to such persons as should correctly guess 
 the results of such certain football-matclies, and should 
 write their guess on certain forms called coupons. The 
 competition was advertised week by week in M.'s news- 
 papers, and the coupons were arranged as part of the 
 advertisements, and could be procured at M.'s office; they 
 were, when filled up, to be cut out of the paper and sent, 
 with the entrance money, to Football Chat, Middelburg, 
 Holland. The names of the winners and the results of the 
 
 ' Uawlu' V. Muchemic, 1902, 2 K. B. 216.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 91 
 
 competition were also advertised in M.'s newspaper. M. 
 received for the insertion of these advertisements a sum 
 considerably more than the charge for ordinary advertise- 
 ments ; but he had no other interest in the competition, 
 nor had T. any interest in the newspaper, M. was charged, 
 under the Betting Act of 1853, for (1) permitting his 
 office to be used by T. for the purpose of money being 
 received by T. as the consideration of or undertaking to 
 pay money on events or contingencies relating to the game 
 of football ; (2) for keeping such offices for the said purpose, 
 etc. Held, that there was evidence on which the magis- 
 trate could properly find that the office was used as an 
 essential part of the machinery for receiving money for an 
 illegal purpose, and that the conviction was right. 
 
 Newspaper Offices ivhere Racing Coupons are received are 
 ivitliin the Act. — S.^ was the occupier of an office, and the 
 proprietor of a newspaper published weekly at that office. 
 Each number of the paper contained a notice of what 
 was called a " coupon competition " — that is to say, of a 
 promise by S, to pay a certain specified sum of money to 
 such persons as should correctly guess the result of a 
 certain horse-race then shortly about to be run,!and should 
 write their guesses upon certain forms called "coupons," 
 which were issued with each number of the newspaper, 
 and should return the coupons so filled up to S.'s office, 
 together with the sum of one penny in respect of each 
 guess made. A large number of persons every week sent 
 in to S.'s office coupons filled up as aforesaid, accompanied 
 by remittances of money. S. was upon these facts con- 
 victed under the Gaming Act of 1853, of having unlawfully 
 kept the office for the purpose of money being received 
 
 ' Rtij. v. Stoddart, 1901, 1 Q. B. 177.
 
 92 ADVERTISEMENTS 
 
 by her as the consideration for undertakings to pay there- 
 after money on events relating to horse-races. Held, that 
 the conviction was right. 
 
 Ncivspapcr Ojfficcs, even tvhcre Money has not been re- 
 ceived, may he within Sec. 1. — L.^ and D. brought actions 
 against S. under sec. 5 of the Betting-House Act (16 & 17 
 Vict. c. 19), to recover certain moneys paid by L. and D. to 
 S. in respect of coupon competitions in Sportinrj Lueh, as 
 money received by S. for the use of L. and D. In the 
 one case the money was paid at the office in Ked Lion 
 Court, and the other at Middelburg, in Holland. 
 Judgments were given for plaintiff, and defendant ap- 
 pealed. Held, that S. had committed an offence under 
 sec. 1 of the Betting Act, 1853. To bring a case within 
 that section it is sufficient that a house or office has been 
 used by the occupier as an essential part of the machinery 
 for carrying out the operation of receiving money as or for 
 the consideration for or undertaking to pay thereafter 
 money on an event or contingency relating to any horse- 
 race, although the receipt of the money has not taken 
 place at such house or office. Stoddart v. Hawhe approved. 
 Sec. 5 of the Gaming Act, 1853, is not repealed by sec. 1 
 of the Betting (Infants) Act, 1892. 
 
 Contract to publish Newspaper containing notice of 
 Coupon ComiJctition is not Illegal. — S.^ was the occupier 
 of an office in Holland and the proprietor of a newspaper 
 published weekly in London. Each number of the news- 
 paper contained a notice of what was called a "coupon 
 competition " — that is to say, of a promise by S. to pay a 
 certain specified sum of money to such persons as should 
 
 ' Lennox v. Stoddart, 6G J. P. 409 ; Lcnnnx v. Ddvis, 66. J. P. 469. 
 2 Stoddart v. Aujus Print uiy Co., 1901, li K. 13. 47.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 93 
 
 correctly guess the result of a certain horse-race then 
 shortly to be run, and should write their guesses upon 
 certain forms called "coupons/' which were issued with 
 each number of the newspaper, and should send the 
 coupons so filled up to S.'s office in Holland, together 
 with the sum of one penny in respect of each guess made. 
 A., who had made a contract with S. to publish the news- 
 paper on S.'s behalf, refused to perform theii* contract, upon 
 the ground that the publication of the newspaper was 
 illegal, as being an infringement of sec. 7 of the Gaming 
 Act, 1853, and of sec. 3 of the Betting Act, 1874. Held, 
 that whether the fact of S.'s office being situate out (jf 
 the jurisdiction was sufiicient to prevent the business so 
 carried on by S. from constituting an offence against the 
 Betting Acts or not, there was nothing in the above- 
 mentioned sections to render illegal the publication by A. 
 of the newspaper advertising the said business. 
 
 Racing Cowpon Competition no Lottery; whether it is 
 a Betting Transaction or not is purely a Question of Fact. — 
 S.^ published a newspaper containing an advertisement of 
 a " coupon competition," which was to be carried out by 
 means of coupons to be filled up by the purchasers of the 
 paper with the names of the horses selected by the pur- 
 chasers as likely to come in first, second, third, and fourth 
 in a race. For every coupon filled up after the first, the 
 purchaser paid a penny, and S. promised a prize of £100 
 for naming the first four horses correctly. S. was prose- 
 cuted under the Act for the Suppression of Lotteries, for 
 opening and keeping an office to receive a lottery, for 
 selling tickets and chances in a lottery ; also under the 
 Gaming Act, 1853, for opening, keeping, and using an 
 
 ' Stoddart v. Sagur, 1895, 2 Q. B. 47").
 
 94 ADVERTISEMENTS 
 
 office for the purpose of money being received as the 
 consideration for or undertaking to pay money on events 
 and contingencies relating to horse-races, and for receiving 
 moneys as deposits on bets, on condition of paying £100 
 on the happening of events and contingencies rekiting to 
 horse-races ; also under the Betting Act, 1874, for pub- 
 lishing an advertisement inviting all who read it to make 
 bets and wagers on such events and contingencies. In 
 the first case, under the Lottery Acts, the magistrate 
 found as a fact that the winning of the prizes in the com- 
 petition would be determined by chance and not by skill, 
 and was of opinion that the facts stated were sufficient in 
 law to support the offences charged in the three informa- 
 tions under the Lottery Acts, and convicted S. In the 
 second case (under the Betting Acts), the magistrate was 
 of opinion that the facts stated were not sufficient in law 
 to support any of the offences charged under the Betting 
 Acts, 1853 and 1874, and dismissed the five informations. 
 On cases stated by the magistrate, held, that the transaction 
 did not amount to either a lottery or betting within the 
 meaning of the Acts under which the proceedings were 
 instituted, and the defendants were not liable to be con- 
 victed. Per Pollock, B, : " The alderman has stated liis 
 opinion that the facts stated in the case were not sufficient 
 in law to support any of the offences charged. That finding 
 is well within his province, and if it was desired that 
 any further question should be decided by him, he should 
 have been asked for a further finding. The defendant has 
 been acquitted, and we will not send back the case to be 
 reconsidered. ... I am clearly of opinion that the facts 
 stated do not show anything amounting to a lottery. ..." 
 Per Wright, J. : " . . . No doubt it is possible that under 
 certain circumstances such a competition as this may be a
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 95 
 
 betting transaction, for a case can be suggested where the 
 facts might bo so found as to show tliat it was. For 
 instance, if it were found tliat a place was used for the 
 purpose of money being received as tlic consideration for a 
 promise to pay money on an event or contingency of or 
 relating to a race, that might amount to a iiuding that the 
 contract was a wagering contract, and the Betting Act 
 might be lield applicable ; but there is no such finding in 
 the present case." 
 
 To Iring Advertisement within Sec. 7 of Betting Act 
 0/ 1853, it must apjjcar hy Beasonable Inference to refer to 
 the Two Classes of Betting prohihitcd therein. — A. and S.,* 
 publishers of a sporting daily, inserted the following 
 advertisement for T. and S., of " Flushing, Holland : " 
 " The Derby, Ascot Stakes, Eoyal Hunt Cup, Northumber- 
 land Plate, etc. The Continental Sportsman, also Year 
 Book and Ready Eeckoner. Free on receipt of address. 
 Telegraphic instructions can be sent to London. All 
 letters to be addressed: 'T. and S., Flushing, Holland.' 
 Postage 2hd. ; Postcards Id." B. bought the paper, read 
 this advertisement, and applied to T. and S. for certain 
 documents, which were posted to him in an envelope 
 bearing an English Id. stamp and a London postmark. 
 On the back of the envelope were stamped the words, " If 
 not delivered, to be returned to 150, Fleet Street, London." 
 B. then sent £3 to T. and S., and subsequently addressed 
 a telegram to " Grumble, London," betting 10s. each way 
 on a certain horse. This was the telegraphic address of 
 T., a member of the firm of T. and S., at 150, Fleet Street. 
 Further bets were made in the same way, and B. received 
 from T. and S. an account, showing a balance due from T. 
 
 * Ashley and Smiih v. Haivke, 67 J. P. 3G1.
 
 96 ADVERTISEMENTS 
 
 and S. on the betting transactions. A. and S. were then 
 charged with unlawfully causing certain advertisements 
 to be published in the City of London, whereby it was 
 made to appear that an office and place was opened, kept, 
 and used by T. and S, for the purpose of making bets or 
 wagers in manner prohibited by the Betting Act, 1853. 
 A. and S. were convicted. Held, on appeal, that for an 
 advertisement to come within the terms of sec. 7 of the 
 Betting Act, 1853, it must appear by reasonable inference 
 from the advertisement itself that it referred to one of the 
 two classes of betting transactions prohibited or rendered 
 illegal by sec. 1 of the said Act. This was not so apparent 
 on the face of the advertisement in question, as it did not 
 appear that there was or would be " physical resorting " 
 to any office or place in England or Ireland, or that betting 
 was or would be carried on at any such office or place by 
 means of prepayment. The evidence given as to bets and 
 proceedings relating to bets taken pursuant and subsequent 
 to the publication of the advertisement was irrelevant. 
 The conviction, therefore, could not stand. 
 
 Sending Letters and Telegrams relating to Bets does not 
 amount to 'physically resorting to the House within Meaning 
 of Sec. 1 of the Act of 1853. — B.^ occupied a house which 
 he used for the purpose of betting with any persons who 
 wrote or telegraphed to him, asking him to bet with them. 
 He used it also for the purpose of money being received 
 on his behalf as and for the consideration to pay money 
 on the account of a horse-race. There was no e\'idence 
 that any person had actually gone to the house for the 
 purpose of betting with the defendant other than those 
 who had gone for ready-money betting. At the trial he 
 
 ' Reg. V. Broion, 1895, 1 Q. B. 119.
 
 COMPETITIONS AND THE LOTTERY AND BETTING ACTS 07 
 
 was indicted, on the first count, under sec, 1 of the Betting- 
 House Act, 1853, for keeping a house for the purpose of 
 betting with persons resorting thereto ; and on a second 
 count, for keeping it to receive payments for the purpose 
 of ready-money betting. The Eecorder directed the jury, 
 in rehition to the first count, that it was not necessary, 
 "for a conviction under the first count, that B.'s house 
 should have been used for the purpose of betting with 
 persons who physically came to the house. But that if 
 the house was used by B. as an office to which any 
 persons who wished to bet with him were to send their 
 communications, and if persons were in the habit of send- 
 ing letters and telegrams to him there, dii'ecting him to 
 make bets with them, such persons resorted to the house 
 within the meaning of the Act, and the jury might find 
 the defendant guilty of using the house for the purpose 
 of betting with persons resorting thereto." Held, on 
 appeal, that upon the trial of an indictment under sec. 1 
 of the Betting-House Act, 1853, for keeping a house for 
 the purpose of betting with persons resorting thereto, it 
 is unnecessary to show that such persons have physically 
 resorted to the premises, the purpose for which the house 
 is kept being that which is condemned by the section, 
 and the offence may be proved by showing that the house 
 was opened and advertised as a betting-house, although 
 no person ever physically resorted thereto. But where 
 no other evidence than that of resorting is offered in 
 support of such an indictment, there must be evidence of 
 physically resorting, and it is not sufficient to show that 
 letters and telegrams were sent to the accused, directing 
 him to make bets with the senders ; persons sending such 
 letters and telegrams do not resort to the house within 
 the meaning of the section. 
 
 H
 
 CHAPTER VI 
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 
 
 Words spoken or written of a person in the way of his 
 business or profession are defamatory, and therefore are 
 actionable without proof of special damages. Slander of 
 title, which enables a man to claim damages for words 
 denying his title to certain property, or disparaging goods 
 which he makes or sells, is, as several authorities point 
 out,^ really an action on the case for publishing without 
 lawful excuse an untrue statement disparaging a man's 
 goods, and thereby causing him damage. Three elements 
 are essential to a successful action for slander of title: 
 (1) the statement must be false ; (2) the statement must 
 be malicious ; (3) special damages must be proved to 
 have arisen from the words. Where the words complained 
 of appear in an advertisement, the publisher of the paper 
 where the advertisement appeared is equally responsible 
 with the advertiser.^ " The law has always been jealous 
 of the reputation of tradesmen," ^ and slander of title in 
 an advertisement may give rise to greater damages on 
 account of the circulation of the slander.^ The words 
 may be either written or spoken, and their appearance in 
 an advertisement may be evidence of malice. Where the 
 
 ' Odgers, Fraser, and Roscoo. 
 
 ^ RavenhiU v. Ujjcott, 33 J. P. 299. 
 
 ' Fer curiam, Uarman v. Delany, 2 Stra. 898.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 99 
 
 publication of the defamatory words is necessary to a 
 man's self-defence, it may be excused ; but if that object 
 could be effected without advertising the words, he loses 
 all privilege.^ In an action for slander of title, no pre- 
 sumption exists that the words are untrue, and the plaintiff 
 cannot establish his case without proof of this untruth. 
 He must also givQ jprimd facie evidence of the defendant's 
 malice, or that he acted without lawful occasion or excuse. 
 In two instances statutory protection is afforded to 
 libellous advertisements. By sec. 4 of the Libel Amend- 
 ment Act of 1888 (51 & 52 Vict. c. 64), notices or 
 reports issued "for the information of the public" at 
 the request of any Government office or department or 
 of the Commissioner of Police, shall be protected unless 
 published maliciously. Sec. 32 of the Patents Designs 
 and Trade Marks Act of 1883 enacts that where A claim- 
 ing to be the patentee of an invention, threatens B by 
 advertisements or otherwise with legal proceedings or 
 liability respecting the alleged infringement of such in- 
 vention, B may bring an action or apply for an injunction 
 against A to restrain the continuance of the threats if the 
 alleged infringement was not in fact an infringement of 
 A's legal rights, but this does not apply if A commences 
 with due diligence an action for the infringement of 
 his patent. An advertisement offering reward for docu- 
 mentary evidence in an action pending is no contempt 
 of court.^ Moreover, a man may, by advertising, bring his 
 own conduct or property or goods, within such criticism 
 as amounts to hona fide comment on a matter of public 
 interest. This rule is applicable more particularly to 
 
 ' Lawless v. Anglo-Egyptian Co., 4 Q. B. 262; Brown v. Croome, 2 
 Starck, 297; Lay v. Lawson, 4 A. «fe E. 795. 
 
 • Plating Co. v. Faiqnharson, 17 Ch. D. 49. *
 
 100 ADVERTISEMENTS 
 
 advertisers who sell patent medicines.^ It applies to a 
 tradesman who distributes handbills or circulars.'^ But 
 community of interest may secure privileges for libel.^ 
 Whether the words go beyond fail- criticism is a question 
 for the jury.* But where the words used in the advertise- 
 ment are incapable of a defamatory meaning, they cannot 
 be left to the jury ; ^ where the words are capable of such 
 meaning, they cannot be withdrawn from the jury.*^ An 
 agreement to indemnify the printer against the conse- 
 quences of a libel is illegal, and therefore will not be 
 enforced.' 
 
 The elements constituting slander of title have been 
 discussed by the courts in a large number of cases, espe- 
 cially in the well-known case of White v. Mellin,^ where 
 it was definitely laid down that slander of title must be in 
 the natiu:e of absolute and not merely relative disparage- 
 ment. The case of Evans v. Harlow ^ is authority for the 
 proposition that the publication of a caution against the 
 value of particular goods amounted to no slander of title 
 nor to a personal imputation. In another case,^° A's claim 
 that his goods were better than B's was held to be quite 
 consistent with B's article being a very good one, and 
 therefore A's claim was no slander of title. Even where 
 a tradesman's statement that his goods are superior to 
 
 • Hunter v. Shnrpe, 4 F. & F. 983. 
 « Paris V. Levy, 2 F. & F. 71. 
 
 » White V. Batey, 8 T. L. R. 698. 
 ■• Jenner v. A' Beckett, 7 Q. B. 11. 
 
 * MuUirian v. Cole, 10 Q. B. 549. 
 British Empire Type-sdtiiuj Co. v. the Linotype Co., 14 T. L. E. 253, 
 
 511. 
 
 ' ShacMl V. Bosier, 2 Bing. N. C. 635. 
 
 • 1895, A. C. 155. 
 
 » 5 Q. B. 624. 
 
 >• Young v. Macrae, 3 B. & S. 264.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 101 
 
 another's is untrue, it is not a trade libel.^ In all these 
 cases the words complaiued of, even where they amounted 
 to disparagement, were not disparaging in an absolute 
 sense. Slander of title, however, exists where the dis- 
 paragement is not of a relative character. In Tlic Western 
 Counties Manure Co. v. the Lawes Chemical Manure Co.,^ 
 a trader, in comparing, by advertisement, a rival's goods 
 with his own, went to the length of declaring that the 
 article sold by the plaintiff was of " a low quality ; " and 
 this was held to amount to slander of title, on which an 
 action could be maintained. The distinction between 
 absolute and relative disparagement was set out fully in 
 the judgment of the House of Lords in White v. Mellin? 
 In that case the plaintiff supplied the defendant with 
 bottles enclosed in wrappers bearing the words " Mellin's 
 Infant's Food." The defendant sold the bottles again to 
 the public after affixing a label to the plaintiff's wrappers. 
 The label recommended the public to buy defendant's 
 infant food, and described it as " far more nutritious and 
 healthful than any other preparation yet offered." 
 
 Where the plaintiff who has obtained a verdict fears a 
 continuance of the libel, he may apply to the judge there 
 and then for an injunction to restrain any further publica- 
 tion of the libel or slander. It is submitted by a great 
 authority on the law of libel * that where the words are 
 not actionable in themselves, the plaintiff cannot be entitled 
 to any injunction until he has established a complete cause 
 of action. In cases of defamation the court has power 
 to grant an interlocutory injunction,^ and this jurisdiction 
 
 * Huhhnck and Sons v. Wilhinson, Heyioood, and Clarhe, 1899, 1 Q. B. 86. 
 « 9 Eq. 218. 
 
 =» 1895, A. C. 155. 
 
 * Odger's " Law of Libel and Slander." 
 
 * Boimard v. Ferryman, 1891, 2 Ch. 269.
 
 102 ADVERTISEMENTS 
 
 is not confined to words affecting trade or business.* 
 Even in cases of defamation which do not require proof of 
 special damage, the jurisdiction to grant an interlocutory 
 injunction has been held to be " of a very delicate nature, 
 and it ought only to be exercised in the clearest cases." 
 The rules laid down, according to Mr. Odgers,^ for granting 
 interim injunctions, as set up by the cases decided up to 
 now, are : (1) where the words are so clearly libellous 
 that if a jury found them not to be libellous the court 
 would set aside the verdict as unreasonable ; (2) where 
 the words are such that a jury could not properly find 
 them to be a fair comment on a matter of public interest ; 
 (3) if the words are not such that a jury might properly 
 find them to be a fair and accurate report of a judicial 
 proceeding ; (4) where the occasion of publication is privi- 
 leged, the court will not try the issue of malice or no 
 malice on affidavit, except, perhaps, in the plainest cases ; 
 (5) where, there being a plea of justification, the court is 
 satisfied there is no reasonable prospect that defendant 
 will prove his words are true ; (6) where there is evidence 
 that defendant intends to continue the circulation of the 
 libel ; (7) where it is established that irreparable or very 
 serious injury will result from continuance of libel ; 
 (8) where plaintiff has not disentitled himself to relief by 
 delaying his proceedings or by other conduct. 
 
 Slander of Title in Adven^tisement. — K.^ purchased an 
 estate in Staffordshire after the title thereto had been 
 contested by a long series of litigation. After selling 
 certain portions of the estate in building lots, he started to 
 
 » Monmn v. Tmmwl, 1894, 1 Q. B. 671. 
 
 - Lihd and Slander, 4tli Edition, 398. 
 ^ Raveuhill v. Upcott, 33 J. P. 299.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 103 
 
 advertise the sale of further portions. An advertisement 
 was sent to the Wolverhampton Chronicle in the ordinary 
 course of business, and . published once. It was as fol- 
 lows : " Important Notice. Horsehill Estate. The public 
 are respectfully requested not to buy any property 
 formerly belonging to A, B, and C, without ascertaining 
 that the title-deeds of the same are correct ; as the heirs 
 are not dead nor abroad, but still alive." This appeared 
 just at the time when R was advertising the sale of the 
 estate in building lots ; but the advertisement revived all 
 previous doubts about K.'s title, and rendered the estate 
 practically unsaleable. At the end of a week E. wrote to 
 U., who had published the advertisement, and complained 
 of it, and asked for the name and address of the person 
 who sent it to the paper. This U. at once furnished ; but 
 on January 30 he was served with a writ. On February 10 
 he inserted an apology, and at the trial of the action 
 brought by K. against U. for slander of title it was pleaded 
 for defendant that he had apologized at the earliest oppor- 
 tunity within the meaning of 6 & 7 Vict. c. 9, s. 2. The 
 judge ruled against defendant on the point. The jury, 
 under the direction of the judge, found for plaintiff. 
 
 Advertisement as Evidence of Malice. — H.^ was gun- 
 smith to the then Prince of Wales, and a paper called the 
 Craftsman announced that H. had had the honour of 
 presenting His Royal Highness with a gun 2 feet 6 inches 
 long, which would shoot as far as one a foot longer. D. 
 then published the following advertisement : " Whereas 
 there was an account in the Craftsman of John Harmer, 
 gunsmith, making guns of two feet six inches to exceed 
 any made by others of a foot longer (with whom it is 
 
 ' Harmau V. Ddany, 2 Stra. 898.
 
 104 ADVERTISEMENTS 
 
 supposed he is in fee), this is to advise all gentlemen to 
 be cautious ; the said gunsmith not daring to engage ivith 
 any artist in toivn, nor ever did make such an experiment 
 (except out of a leather gun), as any gentleman may be 
 satisfied of at the Cross Guns in Long Acre." Held, a 
 libel on the plaintiff in the way of his business. Verdict 
 for plaintiff. Damages £50. Per curiam: "... They 
 might advertise that they make as good as he, but they 
 ought not to say he is no artist, which they plainly do by 
 saying he dares not engage with any artist, and by advis- 
 ing gentlemen to be cautious of him ; the law has always 
 been very tender of the reputation of tradesmen, and 
 therefore words spoken of them in the way of their trade 
 will bear an action that will not be actionable in the case 
 of another person ; and if bare words are so, it will be 
 stronger in the case of a libel in a public newspaper, 
 which is so diffusive." 
 
 Advertisement offering Beward for Documentary Evi- 
 dence in an Action iiending is no Contempt of Court. — F.^ 
 carried on the business of nickel-plating. P., a company 
 which owned a patent process for nickel-plating, obtained 
 au injunction to restrain F. from infringing the patent, and 
 F. gave notice of appeal, F. then published an advertise- 
 ment in a daily paper, inviting the trade to subscribe 
 towards the expenses of the appeal. Another advertise- 
 ment was published, offering a reward of £100 to any one 
 who could produce documentary evidence that nickel- 
 plating was done before 18G9. P. therefore sought to 
 commit the publishers for contempt of court in publishing 
 these advertisements as being an interference with the 
 course of justice. Held, that as all persons engaged in 
 
 > riaiinij Co. V. Farquhursou, 17 Ch. D. 49.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 105 
 
 the trade of plating had a common interest in resisting 
 P.'s claims, an advertisement asking them to contribute 
 to the expenses of defending the proceedings was open to 
 no objection. Held also, that the advertisement oifer- 
 ing a reward for documentary evidence was free from 
 objection. 
 
 Evidence of General Loss of Business admissible where 
 Libel is in the Way of a Man's Trade. — E.^ carried on the 
 business of an engineer and boiler-maker, under the name 
 of " Eatcliffe and Sons." He became entitled on his 
 father's death to the good will of the business, which had 
 been carried on by his father and others as " Eatcliffe and 
 Sons." E., the owner of a local paper, published a para- 
 graph to the effect that E. had ceased to carry on his 
 business of engineer and boiler-maker, and that the firm 
 of Eatcliffe and Sons did not then exist. The statement 
 of claim alleged that E. had falsely and maliciously 
 published and printed of E. in relation to his business 
 certain words, etc. At the trial the statement of claim 
 was allowed to be amended by the addition of the words, 
 " by reason of the premises, the plaintiff was injured in 
 his credit and reputation, and in his said business of an 
 engineer and boiler-maker, and he thereby lost profits which 
 he otherwise would have made in his said business." E. 
 proved tlie publication of the statements complained of, 
 and that they were untrue. He also proved a general loss 
 of business since the publication ; but he gave no specific 
 evidence of the loss of any particular customers or orders 
 by reason of such publication. In answer to questions 
 left to them, the jmy found that the words did not refiect 
 upon E.'s character, and were not libellous; that the 
 
 > Butcbje V. Evum, 1892, 2 Q. B. 524.
 
 106 ADVERTISEMENTS 
 
 statement that the firm of Ratcliffe and Sons was extinct 
 was not published lonafide ; and that R's business suffered 
 injury to the extent of £120 from the publication of that 
 statement. Judgment was then given for E. for £120 
 and costs. On appeal it was contended for E. that proof 
 of special damage was necessary to support the action, 
 and that the evidence given by E. of a general loss of 
 business ought not to have been admitted. Held, that in 
 an action for words not actionable per se, but constituting 
 an untrue statement maliciously published about a man's 
 business, which statement is intended or reasonably likely 
 to produce, and in the ordinary course of things does 
 produce, a general loss of business as distinct from the loss 
 of particular known customers, evidence of such general 
 loss of business is admissible, and sufficient to support the 
 action. Per Bowen, L.J. : "... The case of Hargrave v. Le 
 Breton,'^ decided a century and a half ago . . . shows 
 what sound judgment itself dictates, that in an action for 
 falsehood producing damage to a man's trade which in its 
 very nature is intended or reasonably likely to produce 
 a general loss of business, as distinct from the loss of this 
 or that known customer, evidence of such general decline 
 of business is admissible." 
 
 Coinmunity of Interest may secure Privilege for Libel. — 
 To ^ put a stop to the practice of filling bottles, marked 
 with the name of one manufacturer, with water made by 
 another, manufacturers of aerated and mineral waters 
 formed themselves into a Mineral Water Bottle Exchange 
 and Trade Protection Society, W. and B, were among 
 the manufacturers who joined the society. The rules of 
 
 ' 4 Burr. 2422. 
 
 « White and others v. Batey & Co., 8 T. L. R. G98.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 107 
 
 the society provided that the council of the society had 
 power to refer to arbitration any claims or demands 
 against the society or its members; that every member 
 should be requii^ed to forward the objects of the society, 
 and to report to the secretary of the society all such in- 
 formation respecting the proceedings of any member in 
 possession of or otherwise dealing improperly with the 
 bottles or boxes of any member, or doing any act or acts 
 calculated to injure the trade. B. wrote to the secretary 
 of the society, complaining that W. systematically and 
 habitually filled other people's bottles, especially B.'s, 
 with liquids of their own manufacture. Collins, J., held 
 the letter privileged, and said that B. had a right to put 
 forward this complaint in the way he did, as the society 
 was the tribunal which both W. and B. had chosen to 
 create for the purpose. 
 
 Words capahle of Defamatory Meaning cannot he with- 
 drawn from Jury. — A and B * were owners of patent 
 rights for the manufacture of certain type-setting machines, 
 and had them in use in various parts of the world. Five 
 machines of A's make were sent to a newspaper office for 
 trial, and a dispute arose with a printers' trade union 
 about their use. In consequence of this dispute it was 
 found necessary to discontinue four out of five of the 
 machines. Paragraphs setting out these facts, and that 
 the machines had given every satisfaction, appeared in a 
 trade paper. Subsequently B, getting to know of this, 
 sent a paragraph, with a request for its insertion, to two 
 newspapers. The paragraph ran thus: "The Empire 
 Type - setter in America : — The Union Printer and 
 
 • The British Empire Type-setting Machine Co. v. the Linotype Co., 14 
 T. L. R. 253, 511.
 
 108 ADVERTISEMENTS 
 
 American Craftsman, the most wideawake and spirited of 
 American trade journals, has recently contained several 
 references to the Empire composing-machines, which were 
 installed in the office of the New York Evening Sun with 
 such a flourish of trumpets. From these paragraphs we 
 gather that five machines altogether had been employed 
 in this office, the first being introduced some time in the 
 month of February last, and the other four commencing 
 operations on March 9 last. So short-lived, however, docs 
 this installation appear to have been, that we learn the 
 machines were discontinued on Wednesday, April 29, and 
 now the Empire Company is in receipt of notice to remove 
 them altogether in the course of a few days. This will 
 be a very serious blow for this machine." The plaintiffs 
 were unable to say what damage they had suffered by the 
 paragraph complained of. It was submitted for B that 
 the paragraph was not a libel at all, because it was not 
 defamatory ; if, however, it was a trade libel, no evidence 
 had been given of special damage, of which proof was 
 necessary. The jury found that the words complained 
 of were a libel, and that they were directed against 
 the business of the company as vendors of these machines 
 generally, and were not merely a disparagement of the 
 particular machines, and that B published the words 
 maliciously, intending to attack A in the conduct of 
 A's business ; and assessed the damages at £500. Held, 
 on appeal, by A. L. Smith and Chitty, L.JJ. (Vaughan 
 Williams, L.J., dissenting), that the words were capable 
 of the defamatory meaning found by the jury. Per A. L. 
 Smith, L.J. : " In my opinion, it is the law that if a pub- 
 lication be such that a person of ordinary intelligence 
 reading it might naturally come to the conclusion that 
 the publication imputed to a trader either misconduct, or
 
 LIBEL AND SLANDER OP TITLE IN ADVERTISEMENTS 109 
 
 want of care, or of qualification, or of skill in his business, 
 and the statement is proved to be untrue, the occasion not 
 being x^rivilcged, then the case must be left to the jury, 
 and it is not competent for the judge to witlidraw it from 
 them, for they are the tribunal, if there be ground for 
 assuming that the imputation may be libellous upon the 
 plaintiff to say whether the document published does in 
 fact make any such imputation upon him. ... To falsely 
 write of a trader that he sells or sets up worthless or 
 unworkable wares is a libel upon the trader in the 
 way of his trade, for it imputes either carelessness or 
 incapacity therein, and this, in my opinion, is what the 
 defendants have written and published of and concerning 
 the plaintiffs." 
 
 Whether Words go heyond Fair Criticism is a Question 
 for the Jury. — J.^ and others were manufacturers of bags, 
 and had manufactured a bag which they called " The Bag 
 of Bags." A. printed and published, concerning J. and 
 others in the way of their business, the following words : 
 " As we have not seen the Bag of Bags, we cannot say that 
 it is useful, or that it is portable, or that it is elegant. All 
 these it may be, but the only point we can deal with is the 
 title, which we think very siUy, very slangy, and very 
 vulgar ; and which has been forced upon the notice of the 
 public ad nausmm." Lush, J., held, that the words could 
 not be deemed libellous, either upon J. or upon their mode 
 of conducting business. But Mellor and Harman, L.J., 
 thought that it was a question for the jury whether the 
 words went beyond the limits of fair criticism, and 
 whether or not they were intended to disparage J. in the 
 conduct of their business. 
 
 • Jenmr v. A'BeckeU, 7 Q. B. 11.
 
 110 ADVERTISEMENTS 
 
 Words incapable of Defamatory Meaning cannot he left 
 to Jury. — M.,^ a certified art master, became master of the 
 Walsall School of Art, which was subsequently called the 
 Walsall Science and Art Institute. C. and others were 
 chairman, treasurer, and secretary of the institute. In 
 consequence of disagreement, M.'s engagement with C. and 
 others ceased by notice from them. M. afterwards estab- 
 lished a new school of art called the Walsall Government 
 School of Art, and he had obtained subscribers and received 
 subscriptions for it. A few weeks after the new school 
 was opened, C. and others published an advertisement in 
 the Walsall Observer as follows : " Walsall Science and Art 
 Institute. The public are informed that Mr. M.'s con- 
 nection with the institute has ceased, and that he is not 
 authorized to receive subscriptions on its behalf." The 
 advertisement was signed by defendants, as officers of the 
 institute. The innuendo alleged was that M. falsely pre- 
 tended to be authorized to receive subscriptions on behalf 
 of the institute ; but at the trial the learned judge directed 
 a nonsuit, on the ground that the advertisement was not 
 capable of the defamatory meaning attributed by the 
 innuendo. Held, that the nonsuit was right ; for that the 
 advertisement was not capable of a defamatory meaning. 
 
 Patent Medicines extensively advertised open to Public 
 Criticism. — M.^ belonged to a class of pill-vendors who 
 styled themselves "hygeists," and issued advertisements 
 in which the pills he manufactured were described as a 
 cure for diseases of every kind. W., one of the " hygeists," 
 persuaded a sick man named E. to take the pills, with the 
 result that E. died, and W. was sentenced for manslaughter, 
 
 ' Mulligan v. Cole and another, 10 Q. B. 549. 
 
 - Morrison and another v. Harmer and another, 3 Bing. N. C. 759.
 
 LTBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 111 
 
 and another, S., was sentenced for the manslaughter of M. 
 under similar circumstances. H. made repeated efforts to 
 bring M.'s pills into disrepute, and published the words : 
 " We may safely claim the merit of having crushed the 
 self-styled hygeist system of wholesale poisoning, since we 
 commenced exposing the homicidal tricks of these impudent 
 and ignorant scamps." The jury found for the defendants 
 on these issues. 
 
 H,^ was a medical practitioner with an American 
 degree, who came over to London and entered into 
 partnership with two properly qualified medical assist- 
 ants. In conjunction with them he established himself 
 in practice, especially in cases of consumption, and he 
 organized an extensive system of advertisement, in which 
 a work of his upon consumption was republished in the 
 newspapers in serial form, with prefaces put forth in the 
 name of his assistants — as if they were independent 
 practitioners — and in which his own name appeared as 
 M.B. generally, although in the title-page of the book he 
 was called M.B. of New York. S., the proprietor of the 
 Pall Mall Gazette, published an article, in which H. was 
 denounced as a quack, impostor, and like scoundrels who 
 passed bad coin. H. sued S. for libel. The jury found 
 a verdict for H., with one farthing damages. Held, a 
 public writer, in commenting upon matters of public 
 interest, is protected and excused if, in writing honestly 
 and with reasonable moderation and self-control, he makes, 
 through mistaken references on the matters of fact in- 
 volved, defamatory statements the truth of which he 
 cannot substantiate. Publications having been issued by 
 a medical practitioner by way of advertisement, the effect 
 of which was to represent that he was in possession of a 
 
 ' Uuntfr V. Shnrpe, 4 F. & F. 983.
 
 112 ADVERTISEMENTS 
 
 specific remedy for a disease hitlierto regarded as in- 
 curable, held to be a matter of public interest, and fair 
 and proper subject for public comment. A public writer 
 having in commenting thereon represented the autlior as 
 a quack, impostor, and also — by reason of his describing 
 himself as an M.B. on account of a diploma ol)tained 
 abroad — as like scoundrels who pass bad coins ; and there 
 being evidence that his publications teemed with state- 
 ments extravagant and exaggerated and alarming, held 
 that if they were consciously so, and if H. did not really 
 believe them, these epithets were justifiable. But further 
 held, that even if they were not so in fact, if the jury 
 were satisfied that the writer really believed that tliey 
 were so, and that he was writing honestly and with 
 reasonable regard for moderation, he was excused and 
 protected. 
 
 Public Criticism of Advertisement may he well-foiinded. 
 — P.^ was a marine store dealer carrying on business at 
 Clapham. He issued a handbill, offering prices for kitchen 
 stuff, left-off apparel, etc. Thereupon L., the proprietor of 
 the Daily Telegraph, drew attention to the handbill in a 
 paragraph which was headed: "Encouraging Servants to 
 rob theu' Masters." P. sued L. for libel. Earl, C.J., told 
 the jury : " If P. puts forward a handbill and draws public 
 attention to it, which in the opinion of the editor is most 
 dangerous to honesty, and holds out a temptation to 
 servants to depart from their duty, it may be the editor 
 will be able strictly to excuse before a jury the remarks 
 he has made if in their judgment they are well-founded 
 and wholly applicable to it. If you consider the handbill 
 issued by P. has the dangerous tendency attributed to it by 
 
 » raris V. Jjevy, 2 F. & F. 71.
 
 LIBEL AND SLANDER OP TITLE IN ADVERTISEMENTS 113 
 
 L., then the editor has done that which may be salutary 
 for the community in preventing such encouragements 
 being given, and that he has not been actuated by malice 
 against P., but from a desire founded on the principle of 
 fiiir dealing and honesty to prevent such temptations 
 being held out to dishonesty." 
 
 Trader's Statement that his Goods are superior to those 
 of Another, even if Untrue, is not a Trade Libel. — H,^ was 
 a manufacturer of zinc paint, which he called " Hubbuck's 
 Patent White Zinc." W. and the other defendants were 
 the manufacturers of a similar article called " Bell Brand 
 Genuine White Zinc." A firm of builders and decorators 
 made a number of experiments on the two paints for the 
 purpose of comparing them. The report they made gave 
 particulars of the mode of comparison of the two paints, 
 and concluded as follows : " Exactly nine pounds of paint 
 were used in each case, and each coat took the same 
 quantity of paint. Judging the finished work, it is quite 
 evident that W. H. & Co.'s zinc has a slight advantage 
 over Hubbuck's, but for all practical purposes they can be 
 regarded as being in every respect equal." W. and the 
 other defendants published a circular containing this report 
 in China and Japan. H. brought an action for libel against 
 W. The statement of claim alleged that the report and 
 each statement in it were untrue ; that H.'s paint was not 
 equal or inferior, but superior to W.'s ; and that H. had, 
 by reason of the premises, been injured in his business 
 and credit. W. applied to strike out the statement of 
 claim as showing no reasonable cause of action. The 
 master made an order for striking out the statement of 
 claim unless within a limited time H. amended it by 
 ' Huhbuch and Sons v. Wilkinson, Hi y wood, and Clarice, 1S99, 1 Q. B. 86. 
 
 I
 
 114 ADVERTISEMENTS 
 
 alleging special damage with full particulars. It was 
 held, on appeal, that judgment must be entered for de- 
 fendants. Heldj that a statement by a trader that his own 
 goods are superior to those of another trader, even if un- 
 true and the cause of loss to the other trader, gives no 
 cause of action; that the allegation that the statement 
 was made maliciously could not convert a statement 
 p'ivia facie lawful into one prima facie unlawful ; and 
 that the allegation and proof of special damage would not 
 improve H.'s case. 
 
 PuUication of Caution against Particular Goods no 
 Slander of Title nor a Personal Imputation. — E.^ carried 
 on the trade of an engineer, and sold goods called " self- 
 acting tallow syphons, or lubricators," He was the in- 
 ventor and registered proprietor of an original design for 
 making impressions on articles manufactured in metal, 
 on which the design was used. H., a rival tradesman, 
 issued an advertisement, warning the public against a 
 "person offering what he calls his self-acting tallow 
 syphon, and stating that he is the sole inventor. Such a 
 patent does not exist." No innuendo was put upon the 
 words, and no special damage was alleged. Held, on 
 demurrer, no libel on plaintiff, cither generally or in the 
 way of his trade. Per Lord Denman, C.J. : " If we hold 
 this to be a libel, then every tradesman who publishes 
 that his goods are better than those of some other trades- 
 man will be liable to an action." Per Wightman, J. : 
 " The absence of any personal imputation on the plaintiff 
 distinguishes the case from that which is most like the 
 present, namely, that of Harman v. Dclany." 
 
 A's Claim that his Goods are better than B's consistent 
 
 • EvauK V. Tlarlutc, 5 Q. B. 024.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 115 
 
 with Fs Article being a very Good One.—M.} published a 
 circular comparing his paraffin oil with that of Y., and 
 embodying the report of a professor of chemistry, who 
 described M.'s oil as " a colourless and somewhat aromatic 
 liquid," while Y.'s oil was described as having " a reddish- 
 brown tinge, is much thicker, and has a more disagreeable 
 odour" than the other. Y. sued M. for libel in the way 
 of trade. Held, that no action lay, since the comparison 
 alleged not that Y.'s article was bad, but that it was 
 inferior to M.'s, which was consistent with Y.'s article 
 being in itself a very good article. Per Cockburn, C.J. : 
 " If this is a libel, the effect would be to put down ninety- 
 nine out of every hundred advertisements of articles that 
 we see." 
 
 Where a Trader advertises a Rival's Goods as of " Low 
 Quality" an Action is maintainable.— A. and B ^ were rival 
 manufacturers of artificial manures. B circulated an 
 analysis in detail, purporting to show the proportion of 
 phosphates and ammonia in A and B's artificial manures 
 respectively. The letterpress accompanying the analysis 
 described B's as much the best, and A's as an article of 
 "low quality." A then sued B for trade libel, and 
 alleged special damages. Per Bramwell, B. : "... it 
 appears there was a statement published by B of A's 
 manufacture which is comparatively disparaging of that 
 manufacture, which is untrue so far as it disparages it, 
 and which has been productive of special damage to A ; 
 and it is stated that that publication was made falsely and 
 'maliciously,' which possibly may mean nothing more 
 
 ' Young v. Macrae, 3 B. & S. 264. 
 
 2 Tim Western Counties Manure Co. v. the Lawes CJiemkal Manure Co., 
 9 Eq. 218.
 
 116 ADVEllTISEMENTS 
 
 than that it was made falsely, and without reasonaljle cause 
 calling for a statement by B on the subject. But if actual 
 malice is necessary — wliich I do not think is the case — 
 the allegation is sufficient. It seems to me, however, that 
 where a plaintiff says, * You have without lawful cause 
 made a false statement about my goods, to their compara- 
 tive disparagement, which false statement has caused me 
 to lose customers/ an action is maintainable." 
 
 M.^ was the proprietor of a certain food for infants. 
 He sold the food in bottles enclosed in wrappers bearing 
 the words, " Mellin's Infant's Food." Among others he 
 supplied with the bottles was W. W. sold the bottles 
 again to the public, after affixing to M.'s wrappers a label 
 as follows : " Notice. — The public are recommended to 
 try Dr. Vance's prepared food for infants and invalids, it 
 being far more nutritious and healthful than any other 
 preparation yet offered. Sold in barrels, each containing 
 1 lb. nett weight, at 7|c?. each, or in 7-lb. packets 3s. 9^. 
 each. Local agent, Timothy White, chemist, Portsmouth." 
 W. was the proprietor of Vance's food. M., on discover- 
 ing W.'s practice, brought an action, claiming an injunction 
 to restrain him and damages. Held, that as the label 
 made no reference to M.'s food it could not bo said to have 
 disparaged it, and that no action would lie. 
 
 In tJie Case of a Trade Lihel, the Court has Jurisdiction 
 to grant an Interlocutory Injunction. — B.^ and others were 
 associated together with a financial company in the City. 
 P., the proprietor of a financial paper, attacked them in 
 an article, wluch described B. and his associates as being 
 guilty of fraudulent and dishonest conduct. B. sued P. 
 
 » White V. Mellin, 1895, A. C. 155. 
 
 ' Bommrd v. rniymau, 189J, 2 Ch. 2G9.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 117 
 
 for libel, and applied for an interim injunction till the 
 trial of tlie action, to restrain P. from repeating the libel. 
 Held, that the court has jurisdiction to restrain by injunc- 
 tion, and even by an interlocutory injunction, tlie publica- 
 tion of a trade libel. But the exercise of the jurisdiction 
 is discretionary, and an interlocutory injunction ought not 
 to be granted except in the clearest cases — in cases in 
 which, if a jury did not find the matter complained of to 
 be libellous, the court would set aside the verdict as un- 
 reasonable. An interlocutory injunction ought not to be 
 granted when the defendant swears that he will be able to 
 justify the libel, and the court is not satisfied that he may 
 not be able to do so. Decision of iSTorth, J., granting an 
 interlocutory injunction to restrain the publication of an 
 alleged libel, reversed, Kay, L.J., dissenting. Per Cole- 
 ridge, Esher, Lindley, Bowen, Lopes, L.JJ. : " Is there 
 jurisdiction in the Supreme Court to issue an injunction 
 to restrain the publication of an alleged libel, either at all 
 or before the libel has been adjudged to be such ? Prior 
 to the Common Law Procedure Act, 1854, neither courts 
 of law nor courts of equity could issue injunctions in such 
 a case as this : not courts of equity, because cases of libel 
 could not come before them ; not courts of law, because 
 prior to 1854 they could not issue injunctions at all. But 
 sees. 79 and 82 of the Common Law Procedure Act, 1854, 
 undoubtedly conferred on the courts of common law the 
 power, if a fit case should arise, to grant injunctions at 
 any stage of a cause in all personal actions of contract or 
 tort, with no limitation as to defamation. This power 
 was, by the Judicature Act, 1873, conferred upon the 
 Chancery Division of the High Court, representing the 
 old courts of equity. But it is obvious that the subject- 
 matter of an action for defamation is so special as to
 
 118 ADVERTISEMENTS 
 
 require exceptional caution in exercising the jurisdiction 
 to interfere by injunction before the trial of an action to 
 prevent an anticipated wrong." 
 
 Injunction will not he granted where there is no Malice. 
 — D. and M.^ were rival dealers in a particular kind of 
 tyre. In reply to an inquiry from a customer, M.'s 
 manager 'svrote that neither D. nor any other company 
 except M. could supply any one with the tyre, as M. 
 alone had the right to import such tyres into England. 
 No special damages resulted from the statement, as the 
 customer, in spite of it, ordered and obtained the tyres in 
 question from D. D., however, applied for an injunction, 
 and Walton, J., granted it. Held, on appeal, that judg- 
 ment must be for M. and the injunction dissolved, on the 
 ground that there was no malice on his part. 
 
 Special Damage must he estahlished before an Injunction. 
 — In 1897 ^ two trade-marks registered by the E. Company 
 of New York were expunged from the register at the 
 instance of W., C, & Co. Both trade-marks were labels, 
 containing prominently the words, "Koyal Baking Powder." 
 Shortly afterwards W,, C, & Co. issued a circular, stating 
 that the R. B. P. Co. were using a label for their goods 
 which it was illegal for them to use, as they, W., C, & 
 Co., had obtained an order expunging the label from the 
 register of trade-marks. They also stated that they 
 intended to take proceedings against any person selling 
 goods so labelled. Held, that if the circular had been 
 
 ' Durdop Pneumatic Tyre Co. v. Mahoii Talbot, and oiheri^, 20 T. L. R. 
 581. 
 
 2 Royal Baking-powder Co. v. Wrhjht, Crossley, & Co., 18 R. P. C. 95.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 119 
 
 issued maliciously, and had produced special damage to 
 the R, B. r. Co., an action would lie. 
 
 Wlierc Material Questions iviU he raised at Trial, an 
 Interlocutor i/ Injunction ought not to he granted. — M.^ had 
 been tried in Scotland upon a charge of murder by shooting 
 with a gun. The jury returned a verdict of " Not proven." 
 T., the proprietor of an exhibition of wax figures repre- 
 senting celebrated and notorious personages, exhibited a 
 portrait model of M. with a gun, described as M.'s gun. 
 In the same room were figures of Napoleon I. and three 
 other persons, of whom one was convicted of murder, 
 another committed suicide to avoid arrest, and another was 
 a person charged with having been concerned in the alleged 
 murder with which M. was charged, but who could not be 
 found. In the room were also relics of Napoleon I. and 
 the Duke of Wellington. In another room, called " The 
 Chamber of Horrors," where figures of notorious mur- 
 derers were exhibited, were models of the scenes of murder, 
 together with a model of the spot where the murder with 
 which M. was charged was alleged to have taken place. 
 M. sued T. for libel, and applied for an interlocutory 
 injunction to restrain T. from exhibiting the figure of him- 
 self pending the trial of the action. It appeared that the 
 defendants did not intend to justify, the defence being 
 simply that the exhibition was not libellous. Held, by the 
 Queen's Bench Division (Mathew and Collins, JJ.), that 
 the case was so clearly one of libel, that a verdict to the 
 contrary ought to be set aside as unreasonable, and there- 
 fore, under the circumstances, an interlocutory injunction 
 ought to be granted. On appeal, it appeared from further 
 
 ' MoiiKon V. TuKsamh, Limited ; i\ron>>on v. Lo»?.< Tmgaud, 1894, 1 Q. B. 
 671.
 
 120 ADVERTISEMENTS 
 
 affidavits filed, that there would be a question at the trial 
 whether M. had consented to the exhibition complained of. 
 Held, by the Court of Appeal (Lord Halsbuiy, Lopes, L. J., 
 and Davcy, L.J.), that, that being so, according to the 
 rule laid down in Bonnard v. Ferryman, an interlocutory 
 injunction ought not to be granted. By Lord Halsbury : 
 " The decision in Bonnard v. Pcrrjjman cannot be con- 
 sidered as laying down an absolute rule limiting the 
 jurisdiction given to the Court by the Judicature Act, 1873, 
 sec. 25, sub-sec. 8, to grant an injunction by interlocutory 
 order where it shall appear to them to be just or con- 
 venient ; and, but for the question raised by the further 
 affidavits, a clear case of libel having been shown to the 
 court, the injunction ought to have been granted." By 
 Lopes, L. J., and Davey, L.J. : " The judgment of the Court 
 of Appeal in Bonnard v. Ferryman lays down an absolute 
 rule of practice with regard to the circumstances under 
 which an interlocutory injunction ought to be granted, 
 pending the trial in actions of libel." By Lopes, L.J. : 
 " There not being so clear a case of libel that a verdict to 
 the contrary ought to be set aside as unreasonable, accord- 
 ing to the rule in Bonnard v. Ferryman, the injunction 
 ought not to be granted. By Lord Halsbury and Davey, 
 L.J. : " The jurisdiction to issue injunction in cases of libel 
 is not confined to cases of libels affecting a trade or business." 
 
 TVJiere Injunction against a Rival is advertised, Adver- 
 tisement may he restrained hy Injunction. — A,^ who traded 
 as E. H. & Co., and B, who traded as R. H. and Sons, were 
 rival manufacturers of sail-cloth. A had formerly been a 
 partner in B's firm. In 1885 B brought an action against 
 A, claiming an injunction to restrain him from representing 
 
 ' Haytoart} & Co. v. Uayward and Soiis, 34 Cli. U. 198.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 121 
 
 his firm to be the original firm of E. H. & Sons. At the 
 trial of the action, the judge was satisfied hy the evidence 
 that A had never made any such representation, l)ut that 
 on two or three occasions one of A's agents, witliout his 
 knowledge or concurrence, had represented that A's firm 
 was the original firm. A repudiated this as soon as he 
 knew of it, and offered at the trial an undertaking that 
 he would never make such a representation. North, J., 
 desired that this undertaking should be inserted in the 
 judgment. A assented, and it was accordingly inserted in 
 the judgment drawn up by the registrar. In 1886 B 
 distributed a printed circular, which stated that they were 
 the original firm, and, after giving the title of the former 
 action, headed by the word " Caution," proceeded : " By 
 the judgment A was ordered to undertake not to represent 
 that his firm is or that A's firm is not the original firm of 
 E. H. and Sons.. Messrs. E. H. and Sons, finding that serious 
 misrepresentations were in circulation to their prejudice, 
 felt themselves compelled to bring the above action." 
 Held, that the circular contained an untrue statement of 
 the effect of the judgment in the former action ; that it was 
 a libel injurious to A's trade ; that it was not privileged ; 
 that B had published it maliciously ; and that A was 
 entitled to an injunction with the costs of the action. But 
 there being no evidence of damages to A, except his own 
 affidavit that the publication of the circular was calculated 
 to injure him, and had injured him in liis business, which 
 he said had greatly fallen off since the issue of it ; and A. 
 not having brought the action till three months after he 
 knew of the publication of the circular, only £5 damages 
 were awarded to him. 
 
 Advertisement of Injunction obtained against a Rival
 
 122 ADVERTISEMENTS 
 
 restrained hj Injunction. — G.^ owned two patents for 
 manufacturing cotton belting. K. was formerly G.'s agent. 
 In 1883 an injunction was granted to restrain K. from 
 selling the belting of other manufacturers as that of G.'s. 
 Subsequently, G. inserted an]advertisement in the British 
 Trade Journal, complaining that unprincipled persons 
 were imitating his belting and misleading the public, 
 stating that the above injunction had been granted, and 
 that he had reason to believe that K. still continued to 
 sell a large quantity of other belting than his. North, J., 
 granted an injunction with costs against both G. and the 
 publisher of the British Trade Journal, and also ordered 
 G. to pay £500 damages. 
 
 Injunction not granted against a Privileged Com- 
 munication. — B.2 was a shareholder in Q., a gold-mining 
 company, and he issued a circular to his, brother share- 
 holders, containing statements as to the financial position 
 of Q., which were not positively proved to be untrue. The 
 circular also invited all the shareholders to take some 
 joint action with reference to Q. Q. sued B, for libel, and 
 applied for an interlocutory injunction. Held, that though 
 the Court had jurisdiction to grant an interlocutory in- 
 junction restraining the publication, yet it would not do 
 so when the circular was, as here, ;prima facie a privileged 
 communication. 
 
 Advertisement commenting on Pending Litigation re- 
 strained hj Inj^mction.^ — While the evidence in a Chancery 
 suit was being taken before the examiner, C, the plaintiff, 
 
 » Kerr v. Ganihj, 3 T. L. R. 75. 
 
 « Quiiriz Hill Gohl-minimi Co. v. B.-all (C. A.), 20 Ch. D. 501. 
 
 ' Cohman v. WeM Harth'pool Harbour Co., S W. R. 734.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 1 23 
 
 caused the following advertisement to be inserted in the 
 Times : " To the share and debenture liolders of the West 
 Hartlepool Harbour and Eailway Company : — I have just 
 published a reply to the proceedings of a meeting of 
 proprietors held at West Hartlepool on tlic 28th June 
 last, which may be had of . . . King, Parliament Street, 
 and all booksellers. B. Coleman . . . Street, London." 
 The pamphlet was full of abuse of the chairman of the 
 defendant company, and also gave a digest of C.'s evidence 
 before the examiner. Wood, V.C., granted an injunction 
 to restrain C. and his agents from publishing so much of 
 the pamphlet (stating the objectionable passages), and 
 from publishing or offering for sale during the progress of 
 this suit any book or pamphlet containing statements of 
 the proceedings in this suit ; and also from making public 
 any of such proceedings otherwise than in the due course 
 of the prosecution of this suit until the hearing of the 
 cause or until the further order of the court. 
 
 Sermon on a Pending Action restrained hy Injunction. 
 — B.,1 one of the defendants in an action, was a Noncon- 
 formist minister, and circulated a handbill through the 
 town in the following words : — " Chancery Suit. Con- 
 gregational Church, Heme Bay, On Sunday morning, 
 June 25th, the Eev. Thomas l^landford will preach a 
 sermon with special reference to the trial in which the 
 town is so deeply interested, and which is fixed for the 
 27th and following days. Divine service to-morrow at 
 11 o'clock." About forty inhabitants of Heme Bay were 
 to be examined as witnesses at the trial. Bacon, V.C, on 
 Saturday the 24th, granted an injunction to restrain B, 
 from preaching any sermon or delivering any address with 
 
 ' Machett v. Commissioners of Heme Bay, 24 W. E. 845.
 
 124 ADVERTISEMENTS 
 
 special or other reference to the trial, and from issuing 
 these handbills or being in any way instrumental in the 
 publication or distribution of these or any other like hand- 
 bills or notices, and from otherwise prejudicing or inter- 
 fering with the trial of the action or the persons to be 
 examined as witnesses therein. 
 
 Jurisdiction to grant Injunctions extends to Oral as well 
 as to JVriften Statements. — B.^ was a manager in the employ- 
 ment of L., who dismissed him from his service. B. then 
 went among L.'s customers saying L. was insolvent, and 
 advising some of them not to pay L. for machines whicli 
 had been supplied through B. L. brought an action to 
 restrain B. from making statements that L. was about to 
 stop payment, or was in difficulties or insolvent, and from 
 in any way slandering L, or injuring his reputation or 
 business. No special damage was proved. Held, by 
 Pearson, J., and the Court of Appeal, that the Court has 
 jurisdiction to restrain a person from making slanderous 
 statements calculated to injure the business of another 
 person, and that this jurisdiction extends to oral as well 
 as written statements, though it requires to be exercised 
 with great caution as regards oral statements, and that in 
 the present case an injunction ought to be granted. 
 
 Power to grant Injunction dates from the Judicature 
 Act. — B.^ and others were coopers in Cork and Limerick, 
 who made butter-firkins by hand. P. started a manu- 
 factory near Limerick for making similar firkins liy 
 machinery. B. and others, being annoyed at this, induced 
 the butter-merchants of Limerick to print and widely 
 
 » Hermann Loog v. Bean, 2G Ch. D. 30G. 
 
 - I'livrh V. Bmjd and oihaa, K! L. 11. Ir. 47C.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 125 
 
 distribute a " Notice to Farmers," stating that they would 
 not purchase any butter packed in machine-made firkins, 
 as they found them "to be most injurious to the keeping 
 qualities of the butter," to the great injury of P.'s business. 
 The Irish Queen's Bench Division granted an injunction to 
 restrain the publication of this notice, on the authority of 
 Jlermann Loog v. Bean, holding that the Judicature Act had 
 altered the law as laid down in a previous case where it bad 
 been hekl that the Court had no power to issue injunction. 
 
 Injunction to restrain Libel granted in King's Bench 
 Division. — S. and E.^ were rival manufacturers of railway 
 signals. They both invented practically the same improve- 
 ment ; but E. was the first to patent it. S. subsequently 
 petitioned for a patent, but was refused as being too late. 
 Thereupon E. published an advertisement, announcing that 
 " Saxby's application was cancelled by the Crown on the 
 ground of piracy from i-Easterbrook." S. claimed £1000 
 damages, and an injunction to restrain E. from publishing 
 libels against S. of like nature and description. The jury 
 awarded 40s., and Lord Coleridge, C.J., granted a perpetual 
 injunction. The Divisional Court decided that he had 
 power so to do, as the jury had previously found the 
 matter libellous. 
 
 Injunction will not he granted unless Statements are Mala, 
 Fide. — A.,'' a gun-manufacturing company, obtained con- 
 tracts to supply guns to the nation. Armit and others 
 published a newspaper article, commenting on recent 
 alleged irregularities in the Ordnance Department of the 
 War Office, whereby defective guns, etc., had been supplied 
 to the nation, and accepted without sufficient trial. The 
 
 » Saxby v. Easterbrook, 3 C. P. D. 339. 
 
 ^ Annstrong v. Annlt, 2 T. L. K. 887.
 
 126 ADVERTISEMENTS 
 
 ai'ticle also asserted that A. had obtained contracts from 
 Government officials by corrupt means. A. brought an 
 action for damages, and also applied for an injunction to 
 restrain the editor and printer of the paper from further 
 publishing libellous matter of A. pending the action. The 
 Court (Lord Coleridge, C.J., and Denman, J.) refused the 
 application, as the subject-matter of the article was clearly 
 one of great public interest, and the comments thereon 
 were not proved to be mala fide. 
 
 Injunction granted where Statements are False, and there 
 is Evidence that they woidd he continued to he issued. — 
 L.^ issued cii'culars declaring that A. was wrongfully 
 using L.'s labels upon his Jars of extract of meat, and 
 threatening A.'s customers with legal proceedings for 
 buying and reselling his jars bearing those labels. A. 
 applied for an injunction to restrain L. from issuing such 
 circulars ; but the Court refused to grant it, because it 
 was not satisfied that the statements complained of were 
 untrue. Subsequently, A. issued new wrappers for his 
 meat-jars, with a photograph of Baron Liebig, and the 
 words, " This is the only Genuine Brand." L., whose 
 brand was at least as genuine as A.'s, thereupon applied 
 for and obtained an injunction restraining him from using 
 such wrappers, although the company had themselves 
 issued misleading advertisements. 
 
 Use of Estahlished Name must he accompanied hi/ 
 Precautions to prevent Purchasers from supposing they arc 
 buying the Original Article. — Joseph Thorley^ for many 
 years manufactured and sold extensively an article called 
 
 * Andenon v. Lichufs Extract of Meat Co., 45 L. T. 757 ; Liehiifs 
 Extract of Meat Co. v. Amlerson, 55 L. T. 206. 
 
 * Thorley'n Cnitli) Food v. Masxam (interlocutory), 6 Ch. D. 552; 14 
 Ch. D. 781.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 127 
 
 " Thoiiey's Food for Cattle," made according to a recipe 
 communicated to him, and not known to the public. 
 Josiah Thorley became manager of the business, and had 
 an equal knowledge of the mode of compounding the 
 cattle food with his brother, and had an equal right to 
 use the name of " Thorley's Cattle Food." Joseph Thorley 
 died, and his business was carried on by his executors. 
 Josiah Thorley thereupon formed the Thorley's Cattle 
 Food Company. M., on behalf of the executors, sought 
 to restrain the company from manufacturing and selling 
 the condiment known as "Thorley's Cattle Food;" but 
 the action was dismissed on the ground that M. and the 
 executors had no exclusive right to the title " Thorley's 
 Cattle Food." Later on M. issued an advertisement which 
 concluded with the words, " The proprietors of which are 
 alone possessed of the secret for compounding that famous 
 condiment." The company then moved for an injunction 
 to restrain the issue of this advertisement, and the Court 
 was of opinion that, notwithstanding the decision in a 
 former case, it now had power, by the Judicature Act, 
 sec. 25, sub-sec. 8, to restrain the publication of such an 
 advertisement, but declined to do so upon an interlocutory 
 application. Held, on appeal, that the company were not 
 at liberty to use the name "Thorley's Food for Cattle," 
 unless they took such precautions as would prevent pur- 
 chasers from supposing that the article sold by them was 
 manufactured at the original establishment of Joseph 
 Thorley. 
 
 Agreenient to indemnify Printer against the Consequence 
 of a Libel, being Illegal, will not be enforced.— S} was the 
 proprietor of a paper called John Bull. At the solicitation 
 
 ' ShacMl V. Rosier, 2 Bing. N. C. 6:«.
 
 128 ADVERTISEMENTS 
 
 and request of R, S. inserted the following paragraph in 
 the paper: "Verily the Whigs select choice subjects for 
 the exercise of His Majesty's grace. A few weeks since, 
 the town was astonished at the respite from death of two 
 men who had been found guilty of a murder under cir- 
 cumstances of peculiar atrocity; it was then suggested 
 that the respite was granted to court the favour of the 
 mobocracy of Lambeth, as Lord Palmerston had then 
 some intention of standing for that borough. In the 
 Times of Friday is the following from a correspondent: 
 ' Mr. Chalmers, who was convicted of forgery at the 
 sessions of May last at the Old Bailey, has received His 
 Majesty's gracious pardon. . . . ' In the former case the 
 murderers were men of such notorious bad character that 
 the officers, when they heard of the deed, immediately 
 proceeded to take them up on suspicion. In this case we 
 know that the crime of forgery was not new to Mr. Free 
 Pardon Palmer Chalmers ; and we think we can offer 
 some reason for this act of Whig-Liberal mercy. Mr. F. 
 P. P. C. was for some time previous to his incarceration 
 on this charge an eminent mob-leader in a small way. 
 The Political Union met within these few weeks to 
 petition for this man's pardon, and he is pardoned 
 accordingly." Thereupon Mr. Chalmers brought an 
 action for libel against S., and recovered damages to the 
 amount of £30. After the proceedings for libel had 
 begun, R. undertook to indemnify the paper against the 
 costs, etc., of the action. A written indemnity was drawn 
 up, but never signed by R. or stamped. Held, that as 
 the consideration for the promise was illegal, S. could not 
 recover the indemnity. 
 
 Lihd ill JJooIc justifies the PriuLcr in repudiating
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS 120 
 
 Contract. — Y.^ applied to C, who was a printer, to print 
 a second edition of a treatise called " Military Tactics." 
 This edition was to contain a dedication to Sir "William 
 Napier. C. agreed verbally to find the paper and print 
 500 copies for £4 IO5. a sheet. At the time C. com- 
 menced printing the treatise, the dedication was not 
 written, but it was afterwards sent to him, and the type 
 set up without his having any knowledge of its contents. 
 After the proof-sheets of the dedication had been revised 
 by Y. and returned by him, C. discovered for the first 
 time that the dedication contained libellous matter, and 
 he refused to complete the printing of it. Y. would not 
 pay for the treatise without the dedication, whereupon 
 C. sued him for printing the treatise. Held, that C. could 
 recover. Pollock, C.B. : " I think that if a contract is 
 bona fide entered into by a printer to print a work con- 
 sisting of two parts, and at the time he enters into the 
 contract he has no means of knowing that one part is 
 unlawful, and he prints both, but afterwards suppresses 
 that which is unlawful, there is an implied undertaking 
 on the part of the person employing him to pay for so 
 much of the work as is lawful." 
 
 Unauthorized Use of Name not a Libel by Way of Pro- 
 fession unless it has occasioned Injury. — D.,^ a physician and 
 lecturer to a London hospital, was recommended to drink 
 " Sallyco," a mineral water made by defendant. D. told 
 defendant that nothing seemed to have done his gout so 
 much good as " Sallyco," but he had been taking other 
 drugs as well, and perhaps Sallyco was getting the credit 
 of it. Subsequently defendant published in a leaflet, copies 
 
 ' Clay V. Yates, 1 II. & N. 73. 
 
 ' Doch-ell V. Dougall, 15 T. L. R. 333.
 
 130 ADVERTISEMENTS 
 
 of which were circulated as advertisements, the following 
 words, which were complained of as a libel : " Dr. Marger 
 Dockrell, physician to St. John's Hospital, London, and 
 many of the leading physicians are prescribing Sallyco as 
 an habitual drink. Dr. Dockrell says, ' Nothing has done 
 his gout so much good.' " Evidence was given at the trial 
 that the appearance of D.'s name on the leaflet was detri- 
 mental to him in his profession, as it was contrary to the 
 rules of the hospital to which D. belonged, and because it 
 made him appear as if he were pushing the sale of 
 Sallyco, contrary to the etiquette of his profession, and 
 would lead his fellow-doctors to ostracize him. The 
 following questions were left to the jury : — (1) Was the 
 matter complained of libellous ? (2) If libellous, was it 
 true ? The jury found it was not libellous, and gave 
 no finding on the second question. Judgment was given 
 for defendant, and Eidley, J., refused to grant D. an 
 injunction against defendant on the ground that the jury 
 had negatived injury to D.'s reputation or property. On 
 appeal a remark by Lord Selborne,^ "Could not a pro- 
 fessional man be injured in his profession by having his 
 name associated with a quack medicine ? " was quoted on 
 behalf of D., but the appeal was dismissed on the ground 
 that the jury had found there was no injury to D. in his 
 profession. Per Vaughan Williams, L.J. : " The plaintiff 
 had wholly failed to prove more than a user of his name 
 by defendant. He failed to prove any injury done to him 
 in his property, business, or profession. His lordship said 
 he made these remarks in order to prevent the impression 
 getting about that a person might in an advertisement 
 print of an eminent physician that the latter recommended 
 a quack medicine, when he had done nothing of the sort. 
 
 ' In re Riviere'f Tnvh Marh, 26 Ch. D. 48.
 
 LIBEL AND SLANDER OF TITLE IN ADVERTISEMENTS l.*31 
 
 He did not mean to affirm anything of the sort, and in 
 such a case the jury would prol^ably award considerable 
 damages, in addition to any remedy to which the plaintiff 
 might be entitled." 
 
 Obscure position of Singer's Name in a Concert Adver- 
 tisement may he Evidence of Damages to Rejmtation. — K.^ 
 was a well-known public singer, who was engaged to sing 
 at a concert by N., a concert manager and the owner of the 
 Musical Exchange Journal and. Dramatic Observer. K. had 
 sung for N. on previous occasions, when she had stipulated 
 for a certain place in the programme, but on this occasion 
 she made no such stipulation. At the same concert N. 
 engaged M., and he undertook to place M.'s name first. In 
 N.'s paper the order of the names of the singers was as 
 follows : " Miss Macintyre, Miss Eose Cavendish, Miss 
 Ella Eussell." E.'s husband complained to N. of the 
 position in which her name was placed, and her engage- 
 ment was cancelled. Subsequently, however, E.'s name 
 was again inserted in the following order : " Miss 
 Macintyre, Miss Eose Cavendish, Miss Ella Eussell, and 
 Miss Amy Sherwin." Thereupon E. brought an action for 
 libel against N. and asked for an injunction to restrain the 
 further publication of the paper. It was stated in evidence 
 that the first place in the order of concert singers' names 
 in advertisements was a sign of superior reputation in the 
 profession of public singing, and that the beginning and the 
 end in such announcements as these were superior positions 
 as compared with the middle. The jury found a verdict for 
 R, and assessed the damages at £100. The Court of 
 Appeal affirmed the judgment. 
 
 > Bimell V. Notcntt, 12 T. L. R. 195.
 
 CHAPTER VII 
 
 COrYEIGHT IN ADVERTISEMENTS 
 
 Things entitled to copyright have been defined as " works 
 which the author or composer has bestowed some brain- 
 work upon ; " ^ and the statutory definition of copyright 
 is " the sole and exclusive liberty of printing or otherwise 
 multiplying copies of any subject to which the word is 
 in the Act applied."^ Copyright cannot exist in works 
 of a blasphemous, treasonable, libellous, seditious or im- 
 moral character. In the case of literary works, copyright 
 is wholly statutory, and does not exist at common law, 
 though whether this is true of artistic copyright is un- 
 settled. Originally no protection was given by English 
 law to the work of foreign authors residing abroad, even 
 if such works were first published in England. The Inter- 
 national Copyright Act of 1844 provided that an Order 
 in Council might empower authors of books and works 
 of art first published in foreign coimtries to claim copy- 
 right therein within our dominions for certain periods 
 and upon compliance with certain conditions specified in 
 the Order. Great difficulties arose in the application of 
 the Order until, in 1886, a conference of the Powers 
 on the subject was held in Berne. In September, 1887, 
 the United Kingdom, France, Germany, Italy, Spain, 
 Switzerland, Tunis, Hayti, Luxembourg, Monaco, and 
 
 ' Lindley, L.J, * 5 & G Vict. c. 45, B. 2.
 
 COPYRIGHT IN ADVERTISEMENTS 133 
 
 Montenegro entered into a Union, under which the author 
 of any literary or artistic work in any one of these countries 
 possesses the same rij^^lit of copyrii^lit throughout tlie other 
 countries as if the work had been there produced. He 
 possesses no greater right or enjoys no longer term of 
 copyright than in the country of origin of the work, and 
 does not acquire copyright in the other countries until he 
 has complied with all the formalities required by the 
 country of origin. 
 
 If, however, a person has lawfully produced in the 
 United Kingdom heforc 1887 the published work of a 
 foreign author, he will be entitled to sell after that date 
 all copies made before that date, but he will not have a 
 right to bring out a fresh edition or print fresh copies after 
 that date.-^ Under sec. 6 of the International Copyright 
 Act of 1886, nothing shall diminish or prejudice any right 
 or interests arising "from or in connection with" the 
 lawful production of any work in the United Kingdom 
 subsisting at the date when the benefits of the Berne 
 Convention were extended to the country of origin of the 
 work. A German picture, registered by an English firm 
 as their trade mark before the Union gave protection to 
 German artists, was held to be included in such " right or 
 interests arising from or in connection with " such work.^ 
 Where, however, a German picture had been used for 
 advertising purposes, but not as a trade mark, it was held 
 there had been infringement of the German artist's copy- 
 right.^ 
 
 Copyright exists in published books, periodicals, 
 magazines, newspapers, advertisements, pamphlets, sheets 
 
 ' Cohen's Copyright. 
 
 - Schaner v. Field, 1893, 1 Ch. 35. 
 
 => HanfxtaengL Art Co. v. TloUoimy, 1S9.S, 2 Q. B. D. 1.
 
 134 ADVERTISEMENTS 
 
 of music, maps, charts, or plans separately published, 
 prints, drawings, photographs, and also in designs for 
 works of ornament or utility. Copyright is conferred on 
 the author of every published book by 5 & 6 Vict. c. 45 ; 
 and copyright in engravings is now governed by 8 Geo. II. 
 c. 13; 7 Geo. III. c. 38; 17 Geo. III. c. 57 ; 6 & 7 
 Will. IV. c. 59; 15 & 16 Vict. c. 12. By the first 
 Georgian Act, any print on which copyright was con- 
 ferred had to be engraved, etched, etc., in some part of 
 Great Britain, and duly engraved with the name of the 
 proprietor on each plate, and printed on every such print. 
 Where the engravings form part of a book as illustrations, 
 it is not necessary for the print to bear the name of the 
 proprietor.^ Under 15 & 16 Vict. c. 12, the provisions of 
 the statutes were applied to " prints taken by lithography 
 or any other process by which prints or impressions of draw- 
 ings or designs are capable of being multiplied indefinitely." 
 By 25 & 26 Vict. c. 68, copyright is conferred on the 
 authors of original paintings, drawings, and photographs. 
 If these things be made for any other person, the copy- 
 right belongs to such person where the thing has been 
 made for a good or valuable consideration. The assignee 
 or purchaser from the author is not entitled to protection 
 unless the copyright is conferred on him by writing, nor 
 does the author retain the copyright unless an agreement 
 in writing reserves it to him. So far as infringement is 
 concerned, the main question turns invariably upon the 
 point, whether the infringing work is a substantial copy 
 of the original. For instance, it was held to be no in- 
 fringement of an engraving called " The Huguenots," to 
 publish a pattern for Berlin woolwork, consisting of the 
 figures in the picture, because the work was of a wholly 
 
 • Bogue v. Ilouhion, 5 de G. & S. 2C7.
 
 COPYRIGHT IN ADVERTISEMENTS 135 
 
 different character, and to be used for other purposes.^ 
 It has been laid down ^ that one of the principal tests is 
 vvliether the alleged copy will injure the reputation of 
 the author or afifect the commercial value of his work. 
 
 Mere registration alone confers no title to copyright. 
 Nor, on the other hand, does the mere omission to register 
 affect the copyright. No obligation is imposed by law on 
 an author to register his copyright. But neither he nor 
 anybody to whom he may have assigned the property can 
 take legal proceedings for infringement of copyright unless 
 such copyright is first registered. In other words, registra- 
 tion secures not the author's copyright per se, but the 
 author's right to sue an infringer of his copyright, and 
 the registration may take place after the infringement has 
 occurred. The duration of a copyright varies according 
 to the nature of the subject: literary copyright lasts 42 
 years, or for the whole of the author's life and 7 years 
 after, whichever period is longer; paintings, drawings, 
 photographs, for the natural life of the author and 7 
 years after ; engravings and prints, 28 years from date of 
 first publication ; designs, 5 years. The proprietor of a 
 periodical possesses copyright in such parts of it only as 
 have been composed on the terms that copyright therein 
 shall belong to him, and for which he has actually paid. 
 Such copyright vests in him for the period of 28 years, 
 after which it reverts to the author for the remainder of 
 the 42 years. The purchaser or assignee from the original 
 author is not entitled to copyright in such periodicals, 
 unless it is conferred upon him by writing. Moreover, 
 the author does not in such a case retain the copyright 
 unless he reserves it to himself by agreement in writing ; 
 
 » Dichs V. Broolio, W Ch. D. 22. 
 
 - Huiifstaenijl v. Emjdie Fabel & Newnei^, 1894, 3 Ch. 109.
 
 136 ADVERTISEMENTS 
 
 and if neither of these things is done, the copyright ceases 
 to exist. The person who has purchased and paid for the 
 copyright must register it at Stationers' Hall under his 
 own name. An entry may be made in the register kept 
 there for that purpose on payment of a fee of 5s. The 
 registration must state (1) the title of the book, or, in 
 the case of designs, a sketch, outliue, or photograph of the 
 work (if the proprietor of the copyright desires), or a short 
 description of the nature and subject of the work ; (2) the 
 time of the first publication ; (3) the name and place of 
 abode of the publisher ; (4) the name and place of abode 
 of the proprietor of the copyright. Each new edition of 
 the book must be registered if it is intended to sue for a 
 piracy of it. Like other forms of property, copyright may 
 be assigned by the author to another, in whom it may 
 vest by sale, gift, or bequest. Upon assignment there 
 must in addition be registered (1) the date of the agree- 
 ment or assignment ; (2) the names of the parties thereto ; 
 (3) the name and place of abode of the person in whom 
 the copyright is vested by vu^tue thereof. The requisites 
 to copyright in designs are (1) the design must be new 
 and original; (2) it must be registered; (3) neither the 
 design nor the article to which it is applied must have 
 been previously exhibited, nor any description of it 
 published otherwise than allowed by sec. 57 of 25 & 26 
 Vict. c. 68 ; (4) before sale the prescribed number of exact 
 representations or specimens must be furnished to the 
 Comptroller of the Board of Trade. 
 
 Originally copyright was confined, so far as books and 
 letterpress are concerned, to works of a purely literary 
 character or form. The preamble of the Act of 1842 
 declares that the object of the statute was to afford 
 encouragement to the "production of literary works of
 
 COPYRIGHT IN ADVERTISEMENTS ' 137 
 
 lasting benefit to the world ; " and in a recent case Lord 
 Halsbury laid marked emphasis in his judgment on tlie 
 fact that the Act was intended to a])ply to purely literary 
 works. The character oi' the objects whicli may receive 
 protection under the statute, according to the language of 
 the sections, is much wider than the preamble suggests. 
 Lord Herschell has described the object of the Act as 
 being to " prevent any one publishing a copy of the 
 particular form of expression in which the author conveys 
 ideas and information to the world." Not long after the 
 Act was passed it became clear that the thing entitled to 
 copyright need not possess a purely literary character or 
 form. At the same time a publication utterly devoid of 
 literary value, such as a cricket scoring-sheet,^ or a reprint 
 of sporting tips,^ has been refused protection. On the 
 other hand, copyright can exist in calendars, itineraries, 
 dictionaries, directories, telegraph codes, illustrated cata- 
 logues, and lists of Stock Exchange prices. All these 
 productions were, in the circumstances of the particular 
 cases tried, considered to be the result of literary labour 
 bestowed thereon by persons who were employed for the 
 purpose. A mere collection of names, which any person 
 can collect together without the exercise of literary skill 
 or labour, cannot enjoy copyright, nor can a merely verbal 
 or non-literary description of an article, as contradis- 
 tinguished from a skilfully worded or literary description. 
 No man can have a monopoly in a language, and no man 
 has an exclusive right to the words which are used in an 
 advertisement. In the same sense, as Lord Bowen once 
 pointed out, a novelist has no exclusive right to the words 
 he employs in the novel; his right to copyright in the 
 
 » Pane V. Wisden, 20 L. T. 435. 
 
 - Chilton V. Progress Printing Co., 1895, 2 Ch. 29.
 
 138 ADVERTISEMENTS 
 
 novel is derived from the brain-work he has bestowed on 
 its composition. 
 
 For some time a fallacious doctrine was considered 
 binding on the courts, to the effect that an advertisement 
 was incapable of being protected by copyright. This was 
 laid down by Lord Eomilly in Cohhett v. Woodioard,'^ which 
 Jessel, M.K., in a subsequent case,^ described as " the case 
 which has done all the mischief." For obvious reasons, 
 such a doctrine is contrary both to common sense and law. 
 Take the case of a firm spending an enormous annual sum 
 on advertising, which may have bought the copyright of 
 Sir John Millais's famous picture of " Bubbles." Accord- 
 ing to Lord Romilly's doctrine, any rival firm could have 
 employed the picture for the purpose of advertising the 
 same article, notwithstanding the copyright and the heavy 
 figure paid to the artist. The doctrine was discussed and 
 finally discarded in Maple v. Junior Army and Navy Stores,^ 
 though slight traces are found in the judgments of other 
 learned judges, e.g. Mr. Justice Chitty and Lindley, L.J., 
 and also in the work of an authority like Mr. Scrutton.* 
 The fallacy arose at a time when advertising was in 
 its infancy and of the barest character. At the present 
 moment the art of advertising employs the services 
 of literary men and artists, who supply tales, verses, 
 essays, sketches, and pictures, for the sole purpose of 
 proclaiming the wares of well-known advertisers. It is 
 evident, upon a close examination of the terms of Lord 
 Romilly's judgment, that the dictum he laid down was 
 intended to apply only to cases where the advertisements 
 
 » 14 Eq. 407. 
 
 « Maple V. Army and Navy Stores, 21 Ch. D. 3G9. 
 
 ' Lamb v. Evans, 1893, 1 Cli. 218. 
 
 * The Laui of Copyrhjld, 4fli Kd., IIU.
 
 COPYRIGHT IN ADVERTISEMENTS 139 
 
 possessed no element of either a literary or artistic cha- 
 racter. The following passage from his judgment demon- 
 strates this beyond a doubt : " If you copy the advertisement 
 of another you do him no wrong, unless in so doing you 
 lead the public to believe that you sell the articles of the 
 person whose advertisement you copy. A different rule 
 applies to the letterpress which is said to be copied. 
 Wherever the letterpress bears the traces of original com- 
 position it is entitled to protection, but not where it 
 simply describes the contents of a warehouse, the exer- 
 tions of the proprietor, or the common mode of using 
 famiKar articles." The very distinction which Lord 
 Eomilly there draws between the literary and non-literary 
 character of advertisements, and which qualifies the prin- 
 ciple that his judgment established for a time, had been 
 employed in a previous case, Hotteii v. Arthur} In that 
 case the subject of copyright was a bookseller's catalogue, 
 containing short accounts of the history of old and curious 
 books, or notices of their contents, and anecdotes respect- 
 ing them. Lord Romilly's distinction, just quoted, was 
 there anticipated by Page Wood, V.C, who observed : 
 " This is not a mere dry list of names, like a postal direc- 
 tory, court guide, or anything of that sort, which must be 
 substantially the same by whatever number of persons 
 issued, and however independently compiled." The case 
 of Hotten v. Arthur} however, was not quoted to Lord 
 Eomilly, whose loosely worded dictum prejudiced adver- 
 tisers a good deal in subsequent cases. In Lamh v. Evans^ 
 Chitty, J., accepted Lord Eomilly's doctrine that an adver- 
 tisement could not be subject of copyright, but on the 
 ground that the copyright might be vested in the news- 
 paper owner, who might thus prevent the advertiser from 
 
 ' H. & M. 603. 2 1893, 1 Cb. 218.
 
 140 ADVERTISEMENTS 
 
 inserting the advertisement in another paper. This reason- 
 ing commended itself to Lindley, J., when the case was 
 renewed in the Court of Appeal. It remained, however, 
 for Bowen, L. J., who delivered tlio next judgment, to expose 
 the whole fallacy with characteristic lucidity of language. 
 He said : " With regard to the advertisements ... I am 
 by no means satisfied that Mr. Justice Chitty did not take, 
 on this interlocutory motion, rather a narrower view of 
 the law of copyright as applicable to these advertisements 
 than probably he would take at the trial. It is perfectly 
 true that each separate advertisement may not have become, 
 in its separate form and as a distinct entity, the copyright 
 of the plaintiff; but he still might have a copyright in 
 respect of the collocation and concatenation of the adver- 
 tisements, just as, I believe, the proprietors of the Times 
 would have copyright in a sheet of advertisements." In 
 Grace v. Newman} Hall, V.C, held that a stonemason's 
 advertising catalogue, consisting of lithographic sketches 
 of monumental designs, was capable of copyright. The 
 view that copyright could exist in an advertisement was 
 finally established in Maple and Co. v. The Junior Army 
 and Navy Stores,^ where Jessel, M.E., declared he could 
 find no principle to support Lord Eomilly's doctrine, 
 which was against " the weight of authority." 
 
 Copyright in Bookseller's Catalogue. — H,,^ a bookseller, 
 issued catalogues of his old and curious books. The 
 catalogues were not mere lists of the books and their 
 prices, but contained, in a great majority of instances, 
 short accounts of the history of the books, or notices of 
 their contents, and anecdotes respecting them. These 
 
 » !!♦ Eq. r.23. "■ 21 Ch. D. :{G9. 
 
 » Hotten V. Aiihui., 1 H. & M. G03.
 
 COPYRIGHT IN ADVERTISEMENTS HI 
 
 were, according to H., partly " the emanations of his own 
 mind," and partly compilations by him from materials 
 supplied him by others, but in all cases strictly " original 
 matter " in the sense in which the term is used in relation 
 to copyright. A., a bookseller, issued a catalogue which 
 was in great part copied verbatim from H.'s catalogue. 
 H. applied for an injunction. It was pleaded on behalf 
 of A. that the work was not offered for sale itself, but 
 merely used to promote the sale of the books mentioned 
 in it, and that copyright could not exist in a bookseller's 
 catalogue. Injunction granted. Per Page Wood, V.C. : 
 " I cannot conceive on what principle it is supposed that 
 there is no copyright in a catalogue such as this. This is 
 not a mere dry list of names, like a postal directory, court 
 guide, or anything of that sort, which must be substantially 
 the same, by whatever number of persons issued and how- 
 ever independently compiled." 
 
 Lord Roiiiilly's Doctrine that an Advertisement could 
 not he Subject of Copyright laid down. — C* was an uphol- 
 sterer and house-fui-nisher at Deptford Bridge. In 1866 
 he published a work on the subject of furnishing and 
 furniture, under the title, Cobbett & Co.'s New Furnishing 
 Guide, or The Ilhcstrated Furnishing Guide, containing an 
 introduction and remarks on housekeeping, written by 
 C. himself, with numerous engravings, and illustrations 
 of designs and articles of furniture which were sold by 
 his firm. These engravings, according to C, represented 
 designs and patterns of articles, the drawings of which 
 were specially made from goods manufactured and sold 
 by C. C.'s work was registered as a new publication. 
 
 ' Cohhett V. Woodward, 14 Eq. 407.
 
 142 ADVERTISEMENTS 
 
 W., who carried on a similar business at Worcester, 
 printed and published a book bearing the titles, F. Wood- 
 vjard d' Co.'s Illustrated Furnishing Guide, or New Fur- 
 nishing Guide, as a new and original work ; but C. alleged 
 it was in a great measure copied and taken from C.'s 
 book, and to a considerable further extent was in its style 
 and plan, as well as in particulars, a colourable imitation 
 thereof, and passages were cited from the introduction and 
 other parts of W.'s book in part identical or very similar 
 to certain passages in C.'s book. C. also alleged that W. 
 had copied and appropriated 50 out of 123 illustrations 
 in C.'s book. For the defence it was pleaded that it had 
 been the practice of furniture manufacturers for many 
 years to publish such guides, and that W. himself com- 
 piled and printed one in 1864. The designs and patterns 
 of articles of household furniture were, with rare excep- 
 tion, in common use throughout the trade ; moreover, the 
 illustrations in the guides issued by different manufac- 
 turers were generally the same in outline and design, and 
 were frequently identical. C. sought to restrain W. by 
 injunction from publishing the guides, but the court 
 refused it. It was held that there was no copyright in 
 a descriptive advertisement, illustrated or otherwise, of 
 articles which any one might sell. Per Lord Eomilly, M.E. : 
 " If a man, not being a vendor of any of the articles in 
 question, were to publish a work for the purpose of in- 
 forming the public of what was the most convenient 
 species of articles of house-furniture, or the most graceful 
 species of decorations for articles of house-furniture, what 
 they ought to cost, and where they might be bought, and 
 were to illustrate his work with designs and with draw- 
 ings of each article he described — such a work as this 
 could not be pirated with impunity, and the attempt to
 
 COPYRIGHT IN ADVERTISEMENTS 143 
 
 do SO would be stopped by the injunction of the Court of 
 Chancery; yet if it were done with no such object, but 
 solely for the purpose of advertising particular articles 
 for sale, and promoting the private trade of the publisher 
 by the sale of articles which any other person might sell 
 as well as the first advertiser, and if, in fact, it contained 
 little more than an illustrated inventory of the contents 
 of a warehouse, I know of no law which, while it would 
 not prevent the second advertiser from selling the same 
 articles, would prevent him using the same advertisement, 
 provided he did not in such advertisement by any device 
 suggest he was selling the works and designs of the first 
 advertiser. At the same time, I am bound to say that 
 where it is shown that the second advertiser has been 
 making use literally of the drawings of the first adver- 
 tiser, and copying them precisely, I think that the court, 
 though it could not stop him from taking that course, 
 must feel that a use has been made of the works of the 
 first advertiser which would not be considered fair amongst 
 gentlemen, nor amongst fair traders, and would not give 
 the costs to the man who deliberately endeavours to profit 
 by the exertions of his fellow-tradesmen. But at the last 
 it always came round to this— that, in fact, there is no 
 copyright in an advertisement. If you copy the adver- 
 tisement of another, you do him no wrong unless in so 
 doing you lead the public to believe that you sell the 
 articles of the person whose advertisement you copy. A 
 different rule applies to the letterpress which is said to 
 be copied. Wherever this letterpress bears the trace of 
 original composition it is entitled to protection, but not 
 where it simply describes the contents of a warehouse, 
 the exertions of the proprietor, or the owner's mode of 
 usino; familiar articles."
 
 144 ADVERTISEMENTS 
 
 IVTiij Lord Romilly's Doctrine is now Discarded. — M..} 
 a firm of upholsterers, published an illustrated catalogue 
 of articles of furniture which was duly registered under 
 the Copyright Acts as a book. The illustrations were 
 engraved from original drawings made by artists employed 
 by M., but the book contained no letterpress of such a 
 description as to be the subject of copyright, and it was 
 not published for sale, but was used by M. as an advertise- 
 ment. J. published an illustrated catalogue, many of the 
 illustrations in which were copied from M.'s book. Held, 
 by the Court of Appeal (over-ruling Cohhctt v. Woodward) 
 that M. was entitled to an injunction restraining J. from 
 publishing any catalogue containing illustrations copied 
 from M.'s book. A collection of prints published together 
 in a volume is a book within the meaning of the Copy- 
 right Acts, and the proper subject of copyright, though it 
 contains no such letterpress as could be the subject of 
 copyright, and it makes no difference if the book is not 
 published for sale, but only used as an advertisement. 
 Hall, V.C., drew attention to the fact that the case of 
 Hottcn v. Arthur had not been drawn to the attention of 
 Lord Eomilly in Cohhctt v. Woodward, and continued : 
 " I do not see any reason to tliink it improbable that if 
 Hottcn v. Arthur had been called to his attention he would 
 have said, 'I cannot agree to the proposition that an 
 advertisement cannot be the subject of copyright.' I 
 tliink, so far as my judgment is concerned, that the pro- 
 position I have refeiTed to was not a correct one ; and the 
 Master of the Kolls thought it was at the bottom of the 
 case before him. Now, can there be copyright in an 
 advertisement ? It has been submitted that, consistently 
 with what I decided in Grace v. Nevjman, it might be said 
 
 ' Maple & Co. V. Junior Anny and Nary Stores, 21 Ch. D. 3G9.
 
 OOPYRIQHT IN ADVERTISEMENTS 145 
 
 that there was copyright there, and that this might have 
 sustained my judgment, even if it were in other respects 
 wrong; but without stating that there is something 
 equivalent to it in this case in the passages which have 
 been read to me from the catalogue and in comparing tlie 
 catalogues, I am certainly prepared to hold that for the 
 present purpose its being an advertisement, considering 
 it as an advertisement, is not a reason wliy the catalogue 
 is not a book within the meaning of the statute. It is a 
 book in itself, and a book is a thing which the statute 
 protects. There is no clause in the statute which limits 
 the operation of the word ' book ' in such a way as that 
 it shall not apply to such advertisements. Prima facie, 
 therefore, I hold that the decisions are in favour of the 
 protection of the statute being extended to such advertise- 
 ments." The judgment was affirmed on appeal. Jessel, 
 M.E., expressly declared in the course of his judgment 
 that Lord Eomilly's view that there could be no copyright 
 in an advertisement was wrong. " The case which has 
 done all the mischief is Cdbbctt v. Woodward. ... I think 
 that (Lord Eomilly's view) this is not the law. I am not 
 aware that the use to which a proprietor puts his book 
 makes any difference in his rights. His copyright gives 
 him the exclusive right of multiplying copies, and he may 
 use them as he pleases. I think, therefore, that Cdbhett v. 
 Woodward will not bear legal examination. . . . The 
 weight of authority there is against the doctrine tnat there 
 cannot be copyright in a book issued as an advertisement, 
 and I cannot see any principle in support of that doctrine." 
 Lindley, J., "... I cannot follow Lord Eomilly's reason- 
 ing founded on the book being an advertisement." 
 
 Booh in the Nature of Advertising Catalogue may he 
 
 L
 
 146 ADVERTISEMENTS 
 
 Subject of Copyright. — G.,^ the proprietor of a business 
 known as " Daniel's," stone and marble mason, at High- 
 gate and Nunhead, published in 1870 a book containing 
 164 lithographic sketches of monumental designs, which 
 was compiled by W., the manager of the business at 
 Highgate, The book contained scarcely any letterpress. 
 The sketches were taken from different tombstones in 
 cemeteries by means of photographs and drawings, and 
 great skill was expended in their production. The 
 volume was intended by G. as an advertisement, and to 
 be given to customers for the purpose of selecting a 
 design which G. would be able to execute. The prepara- 
 tion of the book occupied nearly a year, and it was 
 registered by G. at Stationers' Hall. N., a wholesale 
 manufacturing stationer and lithographer in London, 
 employed a traveller, who called on G. at Nunhead and 
 offered a lithographed sheet of monumental designs for 
 masons, for which he solicited orders. It was discovered 
 that the designs were copies of G.'s, and that N. had been 
 soliciting orders for the sheet from the principal cemetery 
 masons in London and the country. G. then applied for 
 an injunction to restrain N. from publishing designs 
 copied from it. Held, that G. had copyright in the book, 
 and was entitled to the injunction ; that a tradesman who 
 employs another for remuneration to compile a book of 
 designs for him is himself entitled to copyright in the 
 book ; that a book in the nature of an advertising 
 catalogue may be the subject of copyright. 
 
 Heading of Advertisements^ being the Bcsult of Literary 
 Skill and Labour, protected by CopyrigJit. — L.^had for many 
 
 ' Ornre y. Neicman, 19 Eq. G23. 
 - Lamb v. Evans, 189:J, 1 Ch. 218. 
 
 I
 
 COPYRIGHT IN ADVERTISEMENTS 147 
 
 years published " The International Guide to British and 
 Foreign Merchants and Manufacturers," which had gone 
 through several editions, and was registered at Stationers' 
 Hall. It had a continental section, which contained a list 
 of continental traders who desired to advertise in this 
 book. These advertisements, the insertion of which was 
 generally paid for by the traders, were arranged under 
 special headings denoting the nature of the businesses, 
 which were placed alphabetically, as, for instance, 
 " Absinthe," " Brush Manufacturers." Each heading was 
 given in English, French, German, and Spanish, and 
 under it the names of the traders who came within it were 
 alphabetically arranged. In some cases only their names 
 and addresses were given. In other cases more elaborate 
 advertisements were furnished, containing descriptions of 
 the articles in which the advertiser dealt, and representa- 
 tions of trade marks and of medals gained by him at 
 exhibitions. Each descriptive advertisement was accom- 
 panied by an English translation. The English headings 
 were prepared by L., or by persons employed and paid by 
 him to do it, and the translations of them were paid for by 
 him. E. was employed by L. to canvas for advertisements 
 in a certain district of the continent. At the end of the 
 period of E.'s employment, E. entered into the service of a 
 rival publication, " The Commercial Directory," and 
 assisted in adding thereto a continental section. L., con- 
 sidering that his rights were interfered with, brought his 
 action against E. and the proprietors of the " Commercial 
 Directory." The action was tried by Mr. Justice Chitty, 
 who was of opinion that L. had copyright in the headings, 
 but not in the advertisements, and granted an injunction, 
 until judgment or further order, restraining E. and the pro- 
 prietors of the " Commercial Directory " from " printing.
 
 148 ADVERTISEMENTS 
 
 selling, or publishing any copy or copies, or so much of 
 L.'s book in the writ mentioned as consists of headings 
 (not forming part of advertisements therein) so as in such 
 way to infringe L.'s copyright in such headings." The 
 defendant appealed, and it was contended on his behalf 
 that there cannot be any copyright in advertisements, and 
 the headings were a mere part of the advertisement. Held, 
 by the Court of Appeal, that L. had a copyright in the 
 headings, and that though it was necessary under 5 & 6 
 Vict. c. 45, s. 18, that they should have been composed on 
 the terms that he shou! 1 have the copyright, this condition 
 was satisfied, because the fair inference from the circum- 
 stances of the case was that they had been composed on 
 those terms. And semble, that although L. could not have 
 copyright in a single advertisement, inasmuch as the 
 advertiser must be at liberty to insert it elsewhere, L. had 
 copyright in the mass of advertisements as arranged. 
 Lindley, L.J. : " I do not myself see the difficulty in a 
 publisher having a copyright in a sheet of advertisements. 
 I do see a difficulty in his having copyright in one adver- 
 tisement, because, as Mr. Justice Chitty pointed out, that 
 might prevent the advertiser from republishing his advertise- 
 ment in another paper. But to say that it follows from that, 
 that the proprietor, say of the Times, has no copyright in a 
 sheet of advertisements, so that he cannot restrain anybody 
 from copying that sheet, appears to me a very different 
 proposition." Bo wen, L.J. : " That they (the headings) are 
 the subject of copyright I do not think can be disputed. 
 They are the result of literary labour, both as regards the 
 composition of the headings themselves and their colloca- 
 tion or concatenation in the book. . . . With regard to the 
 advertisements, though it is not necessary to decide that, 
 I am by no means satisfied that Mr. Justice Cliitty did not
 
 COPYRIGHT IN ADVERTISEMENTS 149 
 
 take on this interlocutory motion rather a narrower view of 
 the law of copyright as applical)le to those advertisements 
 than probably he would take at the trial. It is perfectly 
 true that each separate advertisement may not have 
 become in its separate form and as a distinct entity the 
 copyright of the plaintiff ; but he still might have a copy- 
 right in respect of the collocation and concatenation of the 
 advertisements just as, I believe, the proprietors of the 
 Times would have copyright in a sheet of advertisements. 
 Although they would not have a right of preventing any 
 person who furnished them with an advertisement from 
 inserting it in some other paper, because from the nature 
 of the case it would be obvious that they did not receive 
 the advertisement upon the terms that they should have 
 the copyright, yet, nevertheless, they wovild, I think, have a 
 right of action against any other paper that took a whole 
 sheet of advertisements as arranged appearing in the Times, 
 or a substantial part of it with the advertisements, and 
 reprinted and republished it. 
 
 A Newspaper is a Book for Purposes of CopTjright. — 
 W.^ published in the Times a memoir of Lord Beaconsfield. 
 H. reprinted it in pamphlet form, which he advertised for 
 sale as being "reprinted from the Times." W. and the 
 other proprietors of the Times sought an injunction to 
 restrain H. from publishing it or advertising it for sale. 
 There was no evidence that the proprietors of the Times 
 had purchased or were entitled to the copyright in the 
 memoir, beyond the fact that they had paid the author 
 for his literary services in respect thereof, and the author 
 was not a party to the action. The Times was not 
 registered at Stationers' Hall under the Copyright Act 
 
 ' WaUtr V. Howe, 17 Ch. D. 700.
 
 150 ADVERTISEMENTS 
 
 (5 & 6 Vict. c. 45). Jessel, M.R., held, that a news- 
 paper came ^\ithin the definition of a book in sec. 18, and 
 therefore the plaintiff, in order to succeed, must have been 
 registered under the Act. 
 
 Registration of Copyright in Name of Agent or 
 Manager is invalid. — P.,^ a printing and publishing com- 
 pany, of which W. was managing director, published a 
 trade catalogue or circular, called " The Art of Dressing 
 Well." It contained, among other drawings, the two 
 drawings of gentlemen in Chesterfield coats, as well as 
 certain printed matter describing and advertising articles 
 of clothing. The copyright in both the book and the 
 drawings was registered in the name of W., who had 
 carried on the business before the incorporation of the 
 company, who had written all the letterpress, and who 
 was registered proprietor of the copyright in all books 
 and dramngs used in the business. T., a printer, and B., 
 a firm of clothiers, infringed the copyright in the books 
 and drawings, and P. sought an injunction. Defendants 
 pleaded that W. was not in fact the owner of the copy- 
 right, and that the registration was invalid. There was 
 no evidence of any resolution having been passed by P. 
 or agreement made that W. was to be trustee for P. of 
 the copyright in the book and drawings. Held, that 
 the action was not maintainable, since registration in the 
 name of a person who is a mere agent or nominee of the 
 proprietor of the copyright, and not a trustee for the copy- 
 right for him, is bad. Eegistration of a book under 
 the Copyright Act, 1842, in the name of the author of 
 the letterpress does not coufer any protection in respect 
 of drawings which are introduced into the book as 
 
 ' Pdtij V. Tnyloi; 1897, 1 Ch. 4G5.
 
 COPYRIGHT IN ADVERTISEMENTS 151 
 
 illustrations, and the art copyright iu which is vested in 
 other persons. 
 
 Where there is no Agreement in Writing, Sale of Picture 
 gives Copyright to neither Vendor nor Purchaser. — L.,* a 
 chromo-lithographer, was reading A Midsummer Night's 
 Dream one evening, when he came across the well-known 
 passage (Act 3, sc. 1) : " Good Master Mustard-seed, I 
 know your patience well : that some cowardly, giant-like 
 ox-beef hath devoured many a gentleman of your house : 
 I promise me, your kindred hath made my eyes water ere 
 now. I desire your more acquaintance, good Master 
 Mustard-seed." On reading these lines it occurred to him 
 that the words, accompanied by a suitable illustration, 
 would form a good label or trade-mark for a firm of 
 mustard manufacturers. His artist prepared an oil-paint- 
 ing of a moonlight scene, in which a sprite was pictured 
 presenting a tin of something — presumably mustard — to 
 Bottom and Titania, who were seated on a green bank 
 with Puck hovering over their heads. In the lower part of 
 the picture were a label containing the Shakesperian lines 
 and the word " Mustard." C, a firm of mustard manu- 
 facturers, after some negotiations, ordered 250,000 reduced 
 coloured copies as labels for their mustard tins, the shape 
 of the tin held by the sprite being altered so as to represent 
 one of the book-shaped tins used by C, and C.'s name 
 being fixed above the moon in the picture. From the 
 picture so altered, the labels ordered were supplied by L. 
 The picture itself remained in the possession of C. A 
 second issue of the labels was printed by L. for C. at a 
 reduced rate. Subsequently C. employed other people to 
 print similar labels. L. then claimed that he had registered 
 
 1 Levi V. Champion & Co., 3 T. L. R. 286.
 
 152 ADVERTISEMENTS 
 
 tho copyright in the picture, and that C. was committing 
 an infringement of his copyright. Kekewich, J., held that 
 during the negotiations L. intended to sell the picture, 
 and C. to buy it; that the property passed to C, and 
 therefore that a person so selling was not entitled to the 
 copyright. C. did not claim the copyright in the picture, 
 but L. had not got it — that was to say, he had not got the 
 sole or exclusive right, and therefore could not prevent C. 
 and other persons from multiplying copies. 
 
 Copyright in Articles contributed to Encyclopedia helongs 
 to Autlior, unless otherwise agreed. — A.* approached L. and 
 B., a firm of publishers, with a scheme for the completion 
 of an encyclopedia of sport. They came to terms, and A. 
 was employed to edit it. He was to be remunerated for 
 his editorial services by a lump sum, for which he was to 
 contribute certain articles without further fee. No pro- 
 vision as to copyright was contained in the agreement. 
 Later on L. and B., without the knowledge and consent 
 of A,, published a book containing copies of the articles. 
 Held, there were no special circumstances either in the 
 nature of the publication or in the terms of the employ- 
 ment to warrant the inference that the copyright in the 
 articles contributed by A. was to belong to L. and B., and 
 an injunction was granted to restrain L. and B. from 
 publishing the articles in a separate form. 
 
 Lawful Production of Worh prior to the International 
 Copyright Act protected hy Sec. 6. — S.,^ a German, owned 
 the copyright in an oil-painting called " Lisetta," produced 
 in Gei-many before December, 1885. In January, 1887, 
 
 ' Aflido V. Jjnwrenee & Biiller, 1002, 1 Ch. 264. 
 - iychuiier v. FieUI, Lbh, 1893, 1 Ch. 35.
 
 COPYRIGHT IN ADVERTISEMENTS 153 
 
 F., a firm of caudle manufacturers, registered as their 
 trade-mark a photograph of " Lisette " on a small scale, 
 with their name and the words " trade-mark " across the 
 picture. This trade-mark was extensively used by F. on 
 their goods, and reproduced on show-cards and trade-lists 
 for the purpose of advertising. In December, 1887, the 
 benefit of the International Copyright Act of 1886 was 
 extended to Germany. In January, 1892, S. registered 
 himself as the owner of the photographic copyright in 
 " Lisette," and sought to restrain F. from infringing his 
 copyright by continuing the use of the show-cards, ad- 
 mittedly produced subsequently to December, 1887. F. 
 pleaded that, prior to the extension of the act to Germany, 
 he had acquired such an interest in the trade-mark as is 
 protected by sec. 6 of the Act, which enacts that nothing 
 shall diminish or prejudice any right or interests arising 
 from or in connection with the lawful production of any 
 work in the United Kingdom subsisting at the date of the 
 order in command extending the Act to Germany. Held, 
 that F., as the proprietor of the trade-mark, a work law- 
 fully produced before December, 1887, had an interest in 
 advertising it as they had done by means of the show- 
 cards and trade-lists : that this was an interest arising 
 from or in connection with the trade-mark itself, and that 
 F. was consequently protected by sec. 6.
 
 CHAPTER VIII 
 
 AGENCY AND COMMISSION 
 
 Sometimes an advertiser entrusts the whole work of 
 advertising his wares to an agency of advertising experts ; 
 other traders employ an advertising agency merely as 
 intermediary between themselves and the organs of 
 popular opinion ; some producers or advertisers set up in 
 connection with their business a special branch dealing 
 with the work of popularizing their wares or products. 
 When an advertiser becomes insolvent the question arises, 
 Is the agent through whom he has issued his advertise- 
 ments to the newspapers liable to the latter for the debts 
 so contracted? If an agent is employed to bring two 
 parties together, and drops out when he has fulfilled that 
 function, the third party and the principal are face to 
 face and no liability attaches to the agent. Wlien an 
 agent enters into a contract for a principal whose identity 
 is disclosed to the third party, the agreement is construed 
 on the basis that the principal is presumably the contract- 
 ing party and not the agent. Against this, however, must 
 be set the general rule that when a person signs a con- 
 tract in his own name without qualification he is on the 
 face of it to be treated as principal. Where in other 
 parts of the document it is clear that he did not intend 
 to bind himself as principal, he incurs no liability. An 
 agreement was signed, " C. D. as agent for E. F." In the
 
 AGENCY AND COMMISSION 155 
 
 body of the contract there was nothing inconsistent with 
 this subscription. It was held that C. D. did not sign as 
 principal.^ And the contract ran: "We liavo this day 
 sold you an account of J. M, & Co., etc. etc., J. C. H. & Co." 
 The contract here showed that it was signed by the agent 
 with qualification, and it was held that the agents were 
 not liable.'^ In some cases either the principal or the 
 agent may be sued at the option of the third party ; but 
 if credit is given to the agent the third party cannot sue 
 the principal, for a principal is discharged from liability 
 by the election of the third party to give exclusive credit 
 to the agent who made the contract.^ Where an advertiser 
 becomes insolvent, the liability for the debt incurred in 
 publishing his advertisement rests either upon him as the 
 person to whom the third party looked for payment, or 
 upon the advertising expert who acted as the agent. If 
 the latter has sent the advertisement to the newspaper or 
 magazine, the whole question of liability turns on the 
 terms of the contract. Where an advertising agent signs 
 a contract in a representative capacity, the fact should be 
 made perfectly clear on the face of the written agreement ; 
 when a person signs a contract in his own name without 
 qualifications, it raises a presumption of law that he is 
 contracting personally and not as an agent on behalf of 
 his principal.* All advertisement contracts are not drawn 
 up in clear language, and it is sometimes difficult to say 
 whether the agent signed the letter in his representative 
 or in his personal capacity. An agent in contracting on 
 behalf of his principal may intend to pledge his own 
 
 * Deslandes v. Gregory, 30 L. J. Q. B. 36. 
 - Gadd V. Howjhion, 1 Ex. 357. 
 
 ^ Faterson v. Gandaseqni, 15 East. G2. 
 
 * Stewart v. Shannemy, 2 F. 12.
 
 156 ADVERTISEMENTS 
 
 credit, or he may execute the contract in such a manner 
 as to estop himself from denying that such was his 
 intention. Or he may contract in such terms or other- 
 wise act in such a way as to prevent himself from raising 
 the contracting plea. He may write the letters which are 
 partial evidence of the contract without making any 
 reference to the advertiser, and sign them with his own 
 name without any qualification or without any allusion 
 to his representative capacity. If an advertising agent 
 authorizes the insertion of advertisements in this manner, 
 making no reference to the advertiser and no qualification 
 to his signature, it is clear that he is personally liable on 
 the contract. Whether the priucipal is disclosed or not 
 makes no difference ; and the magazine proprietor may, as 
 a general rule, elect to charge either him or his principal. 
 But as soon as he has made his choice he is bound by it. 
 If the magazine proprietor in his accounts debits the 
 agent instead of the principal, that is, gives credit to the 
 agent and not to the principal, it means that he has 
 consented to look to the agent alone for the payment of 
 the account, and he is thereby precluded from looking to 
 the principal. If, therefore, an agent enters into a contract 
 without naming the advertiser as the person to be re- 
 sponsible, the agent is liable for the debt, and the law will 
 so hold him in the event of his being sued. In the case 
 of Hawkins v. Tnxford'^ (the facts in which are set out 
 in Chapter III.), the defence was raised that an advertiser 
 who had sustained injury through breach of contract on 
 the part of the newspaper in omitting his advertisement 
 had sent the advertisement through an agent, that the 
 contract was made between the agent and the newspaper, 
 and therefore that the advertiser had no right of action. 
 
 > Timet, Dec. 23, 1867.
 
 AGENCY AND COMMISSION 157 
 
 The only report of the case * extant contains no reference 
 to the facts on which this contention was based, but pre- 
 sumably the letter written by the agents showed that they 
 were acting in a representative capacity. 
 
 Apparently conflicting decisions have been given in 
 many cases whore advertising agents and canvassers have 
 sought to recover the commission due to them in respect 
 to advertisements obtained by them in the first instance. 
 Advertisements are of two kinds : (1) where the order for 
 their insertion is unlimited in point of time, except by 
 the words " until countermanded ; " (2) where the order 
 is for a specified period, and then lapses or is renewed. 
 A good deal of controversy exists in the trade as to the 
 rights of canvassers to commission upon orders which are 
 renewed after their agency has ceased. In the first 
 reported case, Nayhr v. Yearsley^ the canvasser claimed 
 to be paid commission on all advertisements received at 
 any time from the customers he had originally obtained 
 for the paper. According to the report, the canvasser 
 was " to have his renewals as long as they continued," and 
 the judge took down the italicized words as meaning "as 
 long as the plaintiff and the defendant should continue 
 together." Later on, the canvasser was told to do no 
 further business for the paper, but he sued for commission 
 upon the advertisements inserted after his dismissal. 
 The form of pleading on which the canvasser rested his 
 case alleged merely that he had been dismissed without 
 reasonable notice, and thereby been deprived of his com- 
 mission. On the facts of the case the judge held that 
 the defendant had failed to make out his case. The next 
 case in point of date is Bo]jd v. Mathers^ where, under 
 
 ' T/»n/>s, Doc. 23,1867. 
 =! 2 F. & F. 41. ' y T. L. R. 443.
 
 158 ADVERTISEMENTS 
 
 the agreement, the canvasser was to receive 25 per cent, 
 commission on initial and renewal orders for the advertise- 
 ments he obtained — " commission payable on acceptance 
 of order, balance quarterly, as accounts are paid." A 
 quarter's notice to terminate his engagement was given 
 to the canvasser, and accounts were settled as to his com- 
 mission up to that time. The main question raised in 
 the case was whether the canvasser was entitled to 
 commission in respect of renewals of advertisements 
 inserted in the paper after the termination of his employ- 
 ment. In the Court of Appeal it was held that the 
 contract was to pay the canvasser commission in respect 
 of his services, and after he had ceased to be in a position 
 to render such services he was not to receive anything. 
 It will be noticed in this case that the canvasser's employ- 
 ment was terminated by notice. Where the contract 
 under which the agent renders his services is unlimited 
 or indefinite in point of time, the courts have construed it 
 as meaning that the agreement to pay commission was 
 intended to operate even after the canvasser was dis- 
 missed, unless it is established that, according to the 
 custom of the trade, the engagement is terminable by a 
 reasonable notice.^ In some kinds of agency the business 
 on the first occasion which the agent may do is of small 
 pecuniary value, and the commission thereon therefore 
 small ; but there is a strong probability of future business 
 resulting. In such businesses, if the principal could by 
 paying a small commission take advantage of the first 
 introduction, and then refuse to recognize subsequent 
 transactions as floating from it, the agent would be practi- 
 cally cheated of the results of his labour. It is for this 
 reason usual in this class of business to arrange that the 
 
 • Bfttany v. Eastern Moiniiuj Nnvs, IC T. L. R. 401.
 
 AGENCY AND COMMISSION 159 
 
 agent shall have commission on all subsequent business 
 done by the principal with the person originally introduced 
 by the agency. Where the agreement provides that the 
 commission shall be payable on all subsequent business, 
 the obligation to pay such commission continues, though 
 the agent may have been dismissed from the agency. The 
 tendency of the courts in several cases, notably in Bilhce 
 v. Basse} Saloman v. Broivnjield,^ Faulkner v. Cooper,^ has 
 been to construe agreements which place no limit in point 
 of time to the services of the agent as an implied contract 
 to pay commission on subsequent business. Where it is 
 clear from the agreement or the circumstances of the case 
 that the parties intended to dispense with each other's 
 services by reasonable notice, the courts have invariably 
 decided that the right to future commission ceases with 
 the termination of the agency.* In Bilhee v. Hasse} 
 Lopes, L.J., made a declaration that the agent was 
 entitled virtually to an annuity under an agreement to 
 pay him subsequent commission, but both in Saloman v. 
 Broivnjield^ and Faulkner v. Cooper^ Mathew, J., held 
 that that was not the right mode of dealing with cases of 
 this kind, and treated the matter as a claim for damages 
 for breach of contract. In arriving at a conclusion on 
 that point there must be taken into account the chances 
 of human life, the vicissitudes of trade, the probability of 
 the customers ceasing to deal with the principal, and 
 " various other considerations." In Bellamy v. Eastern 
 Morning News^ an advertisement canvasser, who was 
 claiming commission on advertisements inserted after the 
 
 • 5 T. L. R. 677; Time» newspaper, Jan. 16, 1890. 
 - 12 T. L. R. 239. 
 
 ' 4 Com. C. 213. 
 
 * Kelhj V. Croft, 14 T. L. R. 348. 
 " 16 T. L. R. 401.
 
 IGO ADVERTISEMENTS 
 
 termination of his agency, alleged that he was entitled to 
 such commission Ly tlie custom of the trade; but the 
 custom was disputed, and Matliew, J., held that the 
 plaintiff had failed to establish it. It follows from 
 Barrett v. Gilmour ^ that, even where the contract to pay 
 commission to an agent is indefinite in point of time, 
 custom of the trade may make the engagement terminable, 
 and where such custom is established by evidence the 
 right to future commission ceases with the agent's employ- 
 ment. Where an advertisement canvasser has obtained 
 blocks or other materials in the coiirse of his agency, he 
 cannot, after his employment ceases, use such materials 
 to the detriment of his former principal.^ 
 
 Where Contract indefinite in Point of Time, Custom of 
 the Trade may make Engagement terminable. — In 1896 B.^ 
 was appointed by G. to act as the latter's traveller or 
 representative in certain towns in the Midlands. The 
 terms of his appointment were contained in a letter, which 
 did not either fix the engagement for any particular period 
 or provide for the termination of the employment by 
 notice or otherwise. B. was to receive 4 per cent, com- 
 mission on all business done by means of orders obtained 
 by B. at the customer's place of business, on all 
 orders given by the customers direct to B., and on all 
 orders which G. received by "letter orders." B., who 
 continued to act as G.'s representative down to 1899, had 
 a connection in the towns he worked in, and thus got 
 orders for G. In July, 1899, G. gave notice to terminate 
 B.'s engagement in the following December. B. contended 
 
 ' 17 T. L. R. 292. 
 
 « Lamb v. Emm, 1S9:^, 1 Ch. T). 219. 
 
 ' Barrett v. Gilmour, 17 T. L. K. 292.
 
 AGENCY AND COMMISSION 161 
 
 that tlie engagement could uot be terminated by notice, 
 and claimed a declaration on all orders execnted by G. 
 after December, 1899, obtained through B.'s agency. The 
 defence set up for G. alleged that it was the custom of the 
 trade to terminate such engagements as B.'s by notice, and 
 that after the employment ceased the traveller was never 
 paid any commission. Several witnesses engaged in the 
 trade, who were called by G., gave evidence to this effect. 
 Phillimore, J., gave judgment for defendants, holding that 
 the evidence clearly established that B.'s engagement 
 could be terminated by notice, that the notice given by G. 
 was sufficient, and that B, was not entitled to be paid any 
 further commission. 
 
 Where Claim to siihsequent Commission rests on Custom, 
 Usages of Trade onust he estah/ished hy Evidence. — B.^ acted 
 as the advertisement agent in London for some provincial 
 newspapers owned by E. He was paid a commission of 
 10 per cent, upon all advertisements obtained in London 
 for the newspapers. In June, 1898, E. terminated B.'s 
 engagement after notice, and paid him commission up to 
 Christmas, 1898, on all advertisements published in their 
 papers which had been originally obtained by him. B. 
 brought an action to recover commission due to him on 
 advertisements published since Christmas, 1898. B. 
 alleged that he was still entitled by the custom of the 
 trade to commission on all advertisements which might 
 appear in E.'s papers if they had been obtained by him in 
 the first instance. It was contended that the custom 
 applied to two classes of advertisements : (1) where the 
 publication was required by the advertiser to continue 
 until countermanded ; (2) where the publication is for a 
 
 ' Bettany v. Eastern MoTuiny News, 16 T. L. R. 401. 
 
 M
 
 162 ADVERTISEMENTS 
 
 definite period, and then either lapses or is renewed, provided 
 that in the case of renewals the renewal was made within 
 twelve months from the previous publication. For the 
 defence it was denied that there was any such custom as 
 alleged. Witnesses were called on l)oth sides as to the 
 alleged existence of the custom. Mathew, J., said the 
 question was whether the alleged custom had been proved. 
 It had been laid down over and over again that the way to 
 prove a custom was to show an established course of 
 business, at first contested but ultimately acquiesced in. 
 A number of witnesses had been called to prove the 
 custom. First, there was the plaintiff himself, who 
 admitted in cross-examination that it might not be quite 
 fair that the payment of commission should go on for more 
 than three or four years, although he said that the custom 
 justified him in saying that the commission was payable 
 for all time if the publication of the advertisements con- 
 tinued. Several of the plaintiff's witnesses were obliged 
 to admit that they knew of no instance where the supposed 
 custom had been acquiesced in by newspaper proprietors. 
 On the case before him he was of opinion that the evidence 
 of the alleged custom was most unsatisfactory. Defendants' 
 witnesses said that vague claims were made from time to 
 time, but they were always stoutly resisted. He held that 
 the custom had not been proved, and gave judgment for 
 defendant with costs. 
 
 TT/iere Agreement 'provides for Notice of Dismissal, Right 
 to Coinmission ceases with Termination of Eni'ployment, 
 unless otherwise provided for. — K.^ was appointed agent 
 by C. to obtain customers. Under the agreement he was 
 to receive 2\ per cent, commission on all orders from 
 ' KMy V. Croft, 14 T. L. R. 348.
 
 AGENCY AND COMMISSION 163 
 
 customers whom he introduced to the firm. It was a 
 term of the contract that the agreement might be deter- 
 mined by mutual consent, six months' notice to be given 
 by either party. The relations between the parties con- 
 tinued satisfactory for five years, and then the agreement 
 was determined by C, who dismissed K. C. admitted K. 
 was entitled to commission up to the time of his dismissal, 
 but K. claimed he was still entitled to commission on 
 orders obtained through his introduction after his dis- 
 missal. Day and Phillimore, JJ., held that C. was entitled 
 to judgment. " This was not a case in which the defen- 
 dant could have dismissed the plaintiff without his consent. 
 The agreement was to last until determined by mutual 
 consent. It had been so determined, and therefore the 
 plaintiff was not entitled to receive commission after such 
 determination." 
 
 Refusal to pay Subsequent Commission on a Contract 
 unlimited in Point of Time is a Breach of Contract remedied 
 hy Damages. — By^ a verbal agreement made in 1884 
 between F., a shipping agent, and C, F. was appointed 
 agent to procure and introduce customers to deal with C, 
 and it was agreed that C. should pay F. a commission of 
 2^ per cent, upon the price of all goods ordered of C. by 
 such customers. F. continued to act as agent for C. until 
 1894, when C.'s business was taken over by a company as 
 a going concern. The agreement with F. was adopted and 
 acted upon by the company. In 1898 the company gave F. 
 three months' notice to terminate his employment as agent 
 on May 31, 1898. F. was paid all commission due to him 
 up to that time. The company continued, after May 31, 
 to do business with customers who had been introduced 
 ' Faulhner v. Cvoper, 4 Com. Cases, 213.
 
 164 ADVERTISEMENTS 
 
 by F. during his agency, but the company had not rendered 
 to F. any account, or paid him any commission in respect 
 thereof. F. claimed among other things a declaration that 
 F. was entitled to commission on all future orders accepted 
 liy the company from customers introduced by F. during 
 his employment as agent. Matliew, J. : "I am satisfied 
 as to the mode in which I ought to deal with this case. 
 The plaintiff now asks for a declaration. . . . That would 
 be in effect giving him an annuity. In my opinion that 
 is not the right way of dealing with a case of this kind. 
 The company by their contract with plaintiff agreed to pay 
 him a commission on all business done with customers 
 obtained through the plaintiff's introduction. The com- 
 pany have now ceased to employ the plaintiff as their 
 agent to introduce customers, but they still deal with the 
 customers who were introduced to them by the plaintiff 
 when he was acting as their agent, and they contend that 
 they are not now bound to pay the plaintiff commission 
 on the business done with these customers since the ter- 
 mination of the plaintiff's employment as agent. The 
 defendants are not bound to continue dealing with these 
 customers, but if they do so they are bound by the terms 
 of their contract with the plaintiff to pay him his com- 
 mission. Now, this is a free country, and the defendant 
 company had a perfect right to break their contract with 
 the plaintiff if they pleased, but they can only do so on 
 the usual conditions, that is to say, they must pay damages 
 for the breach of contract. The question in this case must 
 therefore, in my opinion, be treated solely as to what sum 
 is to be paid to the plaintiff by the defendant company 
 as damages for the breach of contract. In deciding that 
 question, I have to consider what amount of commission 
 would have been earned by the plaintiff if the relations
 
 AGENCY AND COMMISSION 165 
 
 hotween him and fclic defomianb company had not been 
 broken off, and in arriving at a conclusion upon that point 
 I must tiike into account the chances of human life, the 
 vicissitudes of trade, the probability of the plaintiff's cus- 
 tomers ceasing to deal with the defendant company, and 
 various other considerations." [His lordship fixed the 
 damages at £350.] 
 
 Where Agreement is unlimited in Time, no other Term 
 can he imported into the Contract. — B.,* pottery manu- 
 facturers, who had carried on business in Australia for 
 some years, asked S. to go out to Australia and travel for 
 orders for them. S. agreed to do so upon the terms that he 
 was to get 7i per cent, upon the net amount of cash in 
 payment of goods, orders for which were obtained through 
 him, also 1\ per cent, upon all orders from customers 
 introduced by him on payment being made by them, 
 whether such orders were obtained through S.'s repre- 
 sentations or not. S. went out to Australia and obtained 
 a number of orders which were executed, and upon which 
 he received his commission down to the end of 1894. On 
 February 26, 1895, B. gave S. three months' notice to 
 determine his employment, whereupon S. made a claim 
 to be paid commission upon all orders from customers in 
 Australia introduced by him as the contract was indefinite 
 as to time. Mathew, J., made the declaration S. asked 
 for, saying : " There was no difficulty in interpreting the 
 contract. No period was put to the duration of the con- 
 tract, the reason being that payment should be made upon 
 all orders received from customers introduced by S. It 
 was said the contract was only to last a reasonable time, 
 or until it was ended by a reasonable notice. He saw no 
 
 * Saloman v. Brownfield, 12 T. L. R. 239.
 
 166 ADVERTISEMENTS 
 
 reason to import that into the contract. It was open to 
 the defendants to cease to deal with the customers 
 introduced." 
 
 Implied Term of Contract to pay Subsequent Commission, 
 is a Question of Fact which the Jury may Negative. — M.,^ 
 an engineers' sundryman, was engaged by H., manufactur- 
 ing engineers, as their agent to solicit orders for shafting, 
 pulleys, etc. The contract was contained in a letter 
 written by H. to M., which contained the following (as 
 well as a list of firms who were likely to become 
 purchasers on whom M. was to call) : " We shall be 
 pleased to allow you 5 per cent, discount on all orders 
 received from the firms named (except those marked ' not 
 call'), and on any fresh ones you can introduce." M. 
 worked on these terms from the date of the agreement, 
 February 16, 1887, till February, 1895. Besides obtain- 
 ing orders from firms named in the list (41 of whom had 
 not done business with H. before), he claimed to have 
 introduced 183 entirely new customers, and to have 
 obtained orders amounting to £694 in 1887, increasing 
 in amount each year till they reached £6452 in 1894. 
 In February, 1895, a dispute arose, and in consequence 
 M. was dismissed on March 8, his commissions being paid 
 up to April 8. The jury found, as a fact, that it was not 
 an implied term of the contract that M.'s commission 
 should continue after his dismissal, and judgment was 
 given for H. 
 
 Where Ayrecment is Unlimited in Foint of Time, Eight 
 to Future Commission docs not cease ivith Dismissal. — B.,'' a 
 
 ' Morrh V. Ilnnl <t To., 12 T. L. R. 187. 
 
 * Bilbee v. Haae^ 5 T. L. R. 677 ; Timet newspaper, Jan. 16, 1890.
 
 AGENCY AND COMMISSION 167 
 
 butter and margarine merchant, had been for 35 years 
 in the trade. H., who had been in the business but a 
 short time, employed B. in 1879 to solicit orders, not for 
 a salary, but at a rate of commission of 1| per cent. The 
 terms of tlie agreement were in a letter which contained 
 the following passage : " As regards your commission, we 
 hereby agree to allow you 1}^ per cent, upon all orders 
 executed by us and paid for by the customers arising from 
 your introduction." B. continued to introduce customers 
 down to February 1, 1888, when he was dismissed by H., 
 who continued to do business with B.'s customers. B. 
 sued II. for commission executed and paid for by these 
 customers subsequent to his dismissal, and the issue was 
 ordered to be tried whether, under the terms of the agree- 
 ment, B. was entitled to commission on business done 
 after 1888, or whether all right to future commission 
 ceased with his dismissal. Lopes, L.J., answered the 
 question in the affirmative, and held that B. was entitled 
 to commission provided the order arose from his intro- 
 duction, although the employment had terminated. On 
 appeal this judgment was affirmed. Pe7^ Bowen, L.J. : 
 " According to the true construction of the contract it was 
 not necessary that B.'s remuneration should cease at the 
 same moment as his agency determined. The measure of 
 work done by him was to be calculated not by the work 
 done by him, but by the fruits of that work, and these 
 fruits might very well have occurred to H. after the 
 determination of B.'s agency." 
 
 Where Canvasser agrees to receive Commission in Respect 
 of his Services, he can receive Nothing when he ceases to he 
 in Position to render such Services. — B.,^ an advertising 
 ' Boyd V. MatJiere, 9 T. L. E. 443.
 
 168 ADVERTISEMENTS 
 
 contractor, entered into an agi-eement with M., the owner 
 of a newspaper called South Africa, in June, 1889. By the 
 agreement B. was to act as advertising contractor and 
 canvasser in connection with the paper, and should receive 
 from M. a commission of 25 per cent, on contract and 
 renewal orders for advertisements obtained by B. The 
 parties continued to act under the agreement until Novem- 
 ber, 1890, when M. gave notice to terminate it. In 
 December, 1890, M. sold his business to a company called 
 South Africa, etc. Accounts had been settled between B. 
 and M. as to the former's commission up to October 18, 
 1890. B. brought an action against M. to enforce a claim 
 for commission in respect to advertisements inserted in 
 the paper since that date, orders for which were obtained 
 by B., and for renewals of advertisements inserted in the 
 paper, the original orders for which were obtained by B. 
 On May 27, 1889, B. wrote to him offering his services to 
 represent the paper among advertisers. On May 29, M. 
 wrote B. : " You are to get me if you can advertisements, 
 and you are to receive a commission of 25 per cent, on 
 initial orders. . . . Wliat is your idea as to commission on 
 renewal orders ? " In reply to this, B. wrote, on June 10 : 
 " I shall be happy to take orders for South Africa upon a 
 commission of 25 per cent.— commission payable 20 per 
 cent, on acceptance of order, balance quarterly as accounts 
 are paid. Eenewal orders are always the same commis- 
 sion as initial orders. You receive the same amount for 
 renewals as for first, and I do the same work. I never 
 knew myself of a case in which a reduction was paid." 
 To this M. replied on June 11 : "I have yours of yester- 
 day's date, and accept the terms of it." The main question 
 was whether B. was entitled to commission in respect of 
 renewals of advertisements inserted in the paper after the
 
 AGENCY AND COMMISSION 169 
 
 termination of his employment. There was the further 
 question whether B. could maintain any claim against the 
 company. Kekewich, J., held that the company was 
 under no liability to B. ; and as to the claim against M., 
 he made a declaration, " that the plaintiff is not entitled 
 to any commission on renewal of advertisements received 
 since the determination of the plaintiff's employment on 
 November 7, 1890." An account was directed on this foot- 
 ing, and the action was dismissed with costs as against the 
 company. Held, on appeal, that the declaration was right. 
 Per Lindley, L.J. : " He could not read the letters as 
 amounting to a contract that the plaintiff was to be paid 
 a commission on all advertisements appearing in the paper 
 after he had ceased to have anything to do with it. He 
 was to be paid commission in respect of his services, and 
 after he had ceased to be in a position to render any 
 services he was not to receive anything. As against the 
 company the case was hopeless." 
 
 Agreement to pay Conunission does not imply a Yearly 
 Hiring, nor to pay Commission on Renewals, without an 
 Express and Clear Stipulation. — N.^ was an advertisement 
 canvasser for a number of papers. Y., the owner of the 
 Medical Circular, employed N., in September, 1857, to 
 canvass for advertisements on the terms that he was to 
 be paid 20 per cent, commission, that " what he brought 
 should be his own," and that he should have his renewals 
 "as long as they continued." Wightman, J., who tried 
 the case, took down the words, " as long as they con- 
 tinued," as meaning as long as the plaintiff and the 
 defendant should continue together, and so it seemed to 
 be taken. Y. had issued a circular mentioning N. as his 
 
 ' Naylcr v. Yearsley, 2 F. & F. 41.
 
 170 ADVERTISEMENTS 
 
 agent. lu 1858 disputes arose as to advertisements 
 which were not paid for, and for which Y. claimed to have 
 return of commission. In December, 1858, N. was told, 
 by Y.'s orders, that no more advertisements would be taken 
 from him, that he was to have no " renewal orders," and to 
 do no further business with the paper. N. alleged that Y. 
 continued to insert advertisements of his procuring after 
 his dismissal. N.'s case was vested on the first count, which 
 averred that Y., without reasonable notice, discontinued 
 to employ N. as agent, whereby plaintiff had been deprived 
 of " the commission and reward which he would have 
 obtained had he been continued as such agent." N. 
 admitted in examination that in October he had been told 
 his advertisements would only be received " a few weeks 
 longer." He also claimed to be paid commission on all 
 advertisements received at any time from the customers 
 he had originally obtained. It was submitted for defen- 
 dant that there was no evidence of the contract, and 
 that on the agreement for commission there arose no 
 implication of an employment for any particular time. 
 Wightman, J., who declared leave to amend by ordering a 
 court for commission, upheld defendant's contention, and 
 directed a non-suit. 
 
 Materials obtained by Canvasser' during his Agency 
 cannot be used, after his Dismissal, against his Principal. — 
 E.^ was employed as canvasser by L., who was the pro- 
 prietor of the International Guide to British and Foreign 
 Merchants and Manufacturers, to procure advertisements 
 in a certain district on the Continent. E. agreed to work 
 for L. exclusively, and L. agreed to employ E. exclusively, 
 in that district. E. was paid a large commission, and he 
 
 ' Lmnh v. Emm, 93 1 Ch. D. 219.
 
 AGENCY AND COMMISSION 171 
 
 agreed to furnish all blocks and translations relating to 
 his canvass free of charge. The blocks, however, were 
 generally furnished by the advertisers, and handed over 
 for the purpose of printing the advertisements. After the 
 termination of his agency for L., E. entered the service of 
 the proprietor of a rival publication. L. obtained an 
 injunction against E., restraining him from using blocks 
 or materials obtained by E. while in L.'s employment, and 
 for the purpose of L.'s work, for the purpose of any works 
 other than L.'s work. It was held by Chitty, J., and by 
 the Court of Appeal that E. was not entitled to use for 
 the purposes of any other publication the materials which 
 while in L.'s employment he had obtained for the pur- 
 pose of his publication. Per Lindley, L.J. : " No case, 
 imless it be Beuters Telegram Company v. Byron} can, I 
 believe, be found which is contrary to the general principle 
 upon which this injunction is framed, viz., that an agent 
 has no right to employ as against his principal materials 
 which that agent has obtained only for his principal and 
 in the course of his agency. They are the property of the 
 principal. The principal has, in my judgment, such an 
 interest in them as entitles him to restrain the agent from 
 the use of them, except for the purpose for which they 
 were got. It is said that Renter s Telegram Company v. 
 Byroji'^ is opposed to this. If that case went on the 
 ground that the Master of the Eolls was not satisfied tliat 
 the case was plain enough for him to gi'ant an interlocu- 
 tory injunction, there is nothing more to be said about it ; 
 but if the decision goes further than that, I think that 
 undoubtedly the principle was applied there more narrowly 
 than it ought to have been." 
 
 » 43 L.J. Ch. 661.
 
 CHAPTER IX 
 
 TRADE MARKS 
 
 The Trade Marks Act of 1905 (5 Edw. VII. c. 15), consoli- 
 dating and amending the previous statutes of 1875, 1883, 
 and 1888, opens the door of registration to a large number 
 of trade marks which were refused registration under the 
 old Acts. In the vain endeavour to arrive at a satisfactory 
 definition of a trade mark, the Legislature from time to 
 time passed Acts of Parliament which merely increased 
 the characteristics of trade marks, and excluded all marks 
 which did not pertain to the classes set out. The result 
 was that a large number of marks were either refused 
 registration or never re-entered for registration, merely 
 because the marks were sufficiently original to stand out- 
 side the classification in which the characteristics of a trade 
 mark were embodied. The Act of 1883 laid down three 
 " essential particulars " of a trade mark — i.e. no mark was 
 allowed to be registered unless it contained one of the three 
 particulars. The Aet of 1888 extended the number of essen- 
 tial particulars from three to five classes. Marks which were 
 perfectly good trade marks were refused registration on the 
 ground that they did not contain one of these essential 
 particulars. The obstacles against which traders and 
 advertisers complained, and wliich led to the passing of the 
 Act of 1905, can be traced to the difficulty of hitting upon 
 a good definition of a trade mark, and giving such definition
 
 TRADE MARKS 173 
 
 a statutory expressiou. The most descriptive defiuitiou of 
 a trade mark is not found in the language of any Act 
 of Parliament, but in the judgment of Lord Westbury in 
 the case of Leather Cloth Co. v. the American Leather Cloth 
 Co} A trade mark, he said, is some symbol consisting 
 in general of a picture, label, word, or words, which is 
 applied or attached to a trader's goods, so as to distinguish 
 them from the similar goods of other traders, and to 
 identify them as his goods or as those of liis successors in 
 the business in whicli they are produced or put forward for 
 sale. Later on, when Parliament came to give a statutory 
 definition to a trade mark, an attempt was made to extract 
 the essence of Lord Westbury's famous definition, and set 
 it out in precise language. The Act of 1883 enacted that 
 a trade mark must consist of one of the following three 
 essential particulars : (1) The name of an individual or 
 firm, printed, impressed, or woven in some particular or 
 distinctive manner ; (2) the written signature or copy of 
 a wi'itten signature of the individual or his firm applying 
 for registration thereof as trade mark ; (3) a distinctive 
 device, mark, brand, heading, label, ticket, or fancy word 
 or words not in common use. Then arose a good deal of 
 litigation over what was " a fancy word or words not 
 in common use." It was said the more extraordinary and 
 extravagant the name adopted by way of trade mark the 
 better was the object attained, and the less obnoxious was 
 the manufacturer's exclusive claim to it. Sometimes the 
 trade mark was a word or combination of words already in 
 common use, but which for the purpose of a trade mark 
 was applied in a manner different from its ordinary use. 
 For example, *' Pharaoh's Serpents " was applied to a toy ; 
 " Genuine Yankee " to a soap ; " Charles-oak " to stones. 
 
 • 4 De Gtx, Jones & Smith, 112.
 
 174 ADVERTISEMENTS 
 
 At other times, a word was taken from a dead language 
 and applied to goods and registered as a valid trade mark ; 
 e.g. " Excelsior " was applied to soap and stones ; " Eureka " 
 to shirts and agricultural cornpest. An adjective denoting 
 quality only cannot be registered ; for these reasons such 
 words as *' superior " or " superfine " and " nourishing " 
 cannot be exclusively appropriated as a trade mark. The 
 same is the case even with a word or symbol generally so 
 understood in the trade as to indicate quality, such as 
 '* Al." After the Act^of 1875, again, geographical names 
 were not allowed to be registered as "marks," such as 
 "Ethiopian stockings" or "Persian gloves," although no 
 one ever imagined that the stockings came from Ethiopia or 
 the gloves from Persia. As regards words " not in common 
 use," the Act of 1888 attempted to solve the difficulty by 
 substituting the following phrase : " or invented ^vord or 
 words having no reference to character or quality of the 
 goods, and not being a geographical name." Thus the word 
 " washerine," as applied to a soap, was excluded as 
 obviously descriptive ; and for a long time " Solio," as 
 applied to photographic material, was held to be unregis- 
 terable, till the House of Lords decided that the word was 
 not derived from the " Sol " mentioned by Shakespeare in 
 " Troilus and Cressida," but from solium and solio, the 
 Latin and Italian words for a throne or royal seat. 
 
 Finally, the new Act, sec. 9, gives the following 
 exhaustive definition of a trade mark : — 
 
 " A registrable trade mark must contain or consist of at 
 least one of the following essential particulars : (1) The 
 name of a company, individual, or firm represented in a 
 special or particular manner; (2) the signature of the 
 applicant for registration or some predecessor in his busi- 
 ness ; (3) an invented word or invented words ; (4) a
 
 TRADE MARKS 175 
 
 word or words having no direct reference to the character 
 or quality of the goods, and not being according to its 
 ordinary signification a geographical name or a surname ; 
 (5) any other distinctive mark, but a name, signature, or 
 word or words, other than such as fall witliin descriptions 
 in the above paragraphs (1), (2), (3), and (4), shall not, 
 except by order of the Board of Trade or the Court, be 
 deemed a distinctive mark : Provided always that any 
 special or distinctive word or words, letter, numeral, or 
 combination of letters or numerals used as a trade mark 
 by the applicant or his predecessors in business before the 
 thirteenth day of August, one thousand eight hundred and 
 seventy-five, which has continued to be used (either in its 
 original form or with additions or alterations not substan- 
 tially affecting the identity of the same) down to the date 
 of the application for registration, shall be registrable as 
 a trade mark , under this Act. For the purposes of this 
 section ' distinctive ' shall mean adapted to distinguish 
 the goods of the proprietor of the trade mark from those 
 of other persons. In determining whether a trade is so 
 adapted, the tribunal may, in the case of a trade mark in 
 actual use, take into consideration the extent to which 
 such user has rendered such trade mark in fact distinctive 
 for the goods with respect to which it is registered or 
 proposed to be registered." 
 
 Paragraphs 1, 2, and 3 are to all intents and purposes 
 the same as in the previous statutes, except that paragraph 
 2 provides for the registration of the signature of a pre- 
 decessor in business. This point possesses special interest 
 for companies interested in trade marks. The name of a 
 company represented in a special or particular manner 
 may now be registered. Or, if a trader's business with a 
 popular name is taken over by a company, the signature
 
 176 ADVERTISEMENTS 
 
 of that trader may be used as tlie trade mark of that 
 company, iu order tliat they may derive the fullest beuetits 
 from the connection they liave so purchased. The most 
 important paragraph in sec. 9 is the fifth, which provides 
 that any " distinctive " mark may be registered ; and this 
 must be construed in the light of the definitions given in 
 sec. 3 : — 
 
 " In and for the purposes of this Act (unless the 
 context otherwise requires) : — A ' mark ' shall include a 
 device, brand, heading, label, ticket, name, signature, word, 
 letter, numeral, or any combination thereof : A ' trade 
 mark * shall mean a mark used or proposed to be used 
 upon or iu connection with goods for the purpose of 
 indicating that they are the goods of the proprietor of 
 such trade mark by virtue of manufacture, selection, 
 certification, dealing with, or offering for sale : ^A ' regis- 
 trable trade mark ' shall mean a trade mark which is 
 capable of registration under the provisions of this Act : 
 ' The register ' shall mean the register of trade marks 
 kept under the provisions of this Act : A ' registered 
 trade mark ' shall mean a trade mark which is actually 
 upon the register : ' Prescribed ' shall mean, in relation 
 to proceedings before the Court, prescribed by rules of 
 court, and in other cases, prescribed by this Act or the 
 Eules thereunder : ' The Court ' shall mean (subject to 
 the provisions for Scotland, Ireland, and the Isle of Man) 
 His Majesty's High Court of Justice in England " (sec. 3). 
 
 According to the wording of para. 4, words having an 
 indirect reference to the character or quality of goods may 
 be registered ; whilst the old objection to such marks as 
 " Ethiopian stockings " on the ground that it contained a 
 geographical name, disappears since the word is not used 
 in its ordinary signification. The definition of the word
 
 TRADE MARKS 177 
 
 " distinctive," which has hitherto caused much litigation, 
 is clear enough because the mark, if it is adapted to dis- 
 tinguish the goods of the proprietor from those of other 
 persons, is distinctive vs^ithin the meaning of the Act and 
 capable of registration. Such well-known names as 
 " Yorkshire Eelish," " Black and White " whisky, " BDV " 
 tobacco, which have in the past had to rely on their com- 
 mon law rights, are now registrable, since the subsection 
 appears to have been specially drafted to meet such cases. 
 By sec. 10 colour is rendered an important factor in the 
 determination of a trade mark, as it enacts that a trade 
 mark may be limited in whole or in part to one or more 
 specified colours. If and so far as a trade mark is regis- 
 tered without limitation of colour it shall be deemed to 
 be registered for all colours. 
 
 A new class of trade marks is created by sec. 62, which 
 provides for the registration of special or standardized 
 trade marks. Such marks may be registered by any 
 association or person " who undertakes the examination 
 of any goods in respect of origin, material, mode of 
 manufacture, quality, accuracy, or other characteristic, 
 and certifies the result of such examination by mark 
 used upon or in connection with such goods." If the 
 Board of Trade judge it to be to the public advantage 
 it may permit such association or person to register 
 such a mark, whether they be trading associations or 
 traders or possessed of a goodwill in connection with 
 such examination. When registered, such trade mark 
 shall be transmissible or assignable only by permission 
 of the Board of Trade. " Associated " trade marks, 
 " combined " trade marks, and " series of trade marks " 
 are dealt with in sees. 24, 25, 26, and 27. Where 
 a trade mark so closely resembles a trade mark of the 
 
 N
 
 178 ADVERTISEMENTS 
 
 applicant for registration already on the register for the 
 same goods as to deceive or cause confusion if used by a 
 person other than the applicant, it shall be registered as 
 an associated trade mark. If the owner of such a mark 
 claims the exclusive use of any portion of such trade mark 
 separately, it must have all the incidents of an independent 
 trade mark, though it will be entered on the register as 
 an associated trade mark. A series of trade marks for 
 the same description of goods which, while resembling 
 each other in material particulars, differ in other respects 
 may be entered as a series in one registration. Sec. 27 
 provides that associated trade marks are assignable only 
 as a whole and not separately. 
 
 The essence of an infringement is that the use of the 
 mark upon the defendant's goods is calculated to lead 
 purchasers to buy them as being the goods of the owner of 
 the mark. By means of registration a trader may acquire 
 trade mark rights without actual user of the mark. Eegis- 
 tration is prima facie evidence of the owner's rights, and 
 by virtue of sec. 41 of the Act of 1905 it is, after seven 
 years of registration, conclusive evidence of the registered 
 proprietor's right in the exclusive user of the mark for the 
 goods for which it is registered. Motions to rectify the 
 registration will be of no avail unless it commits an offence 
 against sec. 11, which restricts the registration as trade 
 mark or part of a trade mark "any matter the use of 
 which would by reason of its being calculated to deceive 
 or otherwise be disentitled to protection in a court of 
 justice or would be contrary to law or morality or any 
 scandalous design." Marks placed on the register which 
 are no longer in use, or which have been put on the register 
 for the purpose of blocking others and without any bona 
 fide intention of using the same, arc dealt with in sec. 37.
 
 TRADE MAUKb 179 
 
 Any aggrieved person may on application remove from 
 the register trade marks registered by a proprietor or his 
 predecessor in business on the ground that there has been 
 no bona fide user of such mark during the preceding five 
 years. Where a trade mark has not been registered and 
 is infringed, the owner of the article sold may bring an 
 action for damages for passing off the defendant's goods as 
 those of the plaintiff, even if the passing off consisted of 
 the use or imitation of the mark. But it is a condition 
 precedent to an action for the infringement of a trade 
 mark that the plaintiff shall be the registered proprietor 
 of the trade mark in question at the time the writ is 
 issued. No action can be commenced for infringing an 
 unregistered trade mark imloss it should be an old mark, 
 i.e. a mark in use before the first Act of 1875, in which 
 case it must be shown that registration has been refused. 
 Provision is made in sec. 42 of the new Act for the issue 
 of a certificate of refusal in such cases. 
 
 At the Patent Office, 25, Southampton Buildings, 
 Chancery Lane (which is under the charge of the Comp- 
 troller-general of Patents, Designs, and Trade Marks), at 
 Manchester (where a branch registry is established for 
 cotton goods), at Sheffield (where another branch is estab- 
 lished for metal goods), or at the chief post-office of any 
 large town, an official form of application to register may 
 be obtained, and all the applicant need do is to fill it up 
 and address it to the Comptroller. A sixpenny pamphlet 
 entitled " Instructions to Persons who wish to Register 
 Trade Marks " may be obtained at the chief office. If the 
 applicant desires he may make his application through an 
 agent. If his application is granted, the fact is advertised 
 in the Trade Marks Journal, so as to notify all who may 
 desire, on various grounds, to oppose the registration. If
 
 180 ADVERTISEMENTS 
 
 the application is refused, the Comptroller communicates 
 that fact to the applicant, who can then apply for a 
 hearing. Should the registration be refused or opposed 
 and allowed there is an appeal to the Chancery Court or, 
 with the consent of the parties, to the Board of Trade. 
 Formerly, the appeal to the Chancery was alternative to 
 the appeal to the Board of Trade, and subject to the con- 
 sent of the parties, and the motion was supported by 
 evidence on affidavit. Under the new Act an important 
 departure is made from the former practice on appeal. 
 Under sec. 49, viva voce evidence may be taken in lieu of 
 or in addition to evidence by declaration, though this can 
 only be done by consent of both parties. By sec. 14 the 
 former absence of power to award costs in cases of oppo- 
 sition is rectified, and the registrar, or in case of appeal the 
 Board of Trade, have power to award the successful party 
 such costs as they may consider reasonable. Moreover, 
 by subsec. 11 of sec. 14, if a party giving notice of oppo- 
 sition or of appeal neither resides nor carries on business 
 in the United Kingdom, the tribunal may require such 
 party to give security for costs of the proceedings before 
 it, relative to such opposition or appeal, and in default of 
 such security being duly given may treat the opposition 
 or appeal as abandoned. If a trade mark contains parts 
 not separately registered as trade marks, or if it contains 
 matter common to the trade or otherwise of a non-dis- 
 tinctive character, the proprietor shall, when requested by 
 the Board of Trade or the court, disclaim any right to the 
 exclusive use of any parts of such trade mark to the 
 exclusive use of which they hold him not to be entitled. 
 It is clearly provided in sec. 15 that the disclaimer is made 
 only for the purpose of the registration, and shall not 
 interfere with any other rights of the proprietor, and in
 
 TRADE MARKS 181 
 
 any event such disclaimer is only for the purpose of defin- 
 ing the rights of the proprietor under such registration. 
 Actions for the infringement of a trade mark may be brought 
 either on the equity or the common law side ; in the 
 case of marks registered at Mancliestcr, tlie action may be 
 brought in tlie Palatine Chancery Court of Lancaster. If 
 the damages claimed do not exceed the county court 
 limit, the action may be brought there. If a foreigner 
 commits an infringement, and is within the jurisdiction 
 of the court, he may sue or be sued. Where several 
 persons claim to be the proprietor of the same trade mark, 
 or of nearly identical trade marks in respect of the same 
 goods or description of goods, and to be registered as such 
 proprietor, the registrar may refuse to register any of them 
 till their rights have been determined by the court, or 
 liave been settled by agreement in a manner approved 
 by him, or on appeal by the Board of Trade. In case of 
 honest concurrent user, or of other special circumstances 
 which, in the opinion of the court, make it proper so to 
 do, the court may permit the registration of the same 
 trade mark, or of nearly identical trade marks for the same 
 goods, subject to such conditions as to mode or place of 
 user, as it may think it right to impose. 
 
 In the statutory rules and order, dated March 24, 
 1906, issued by the Board of Trade to regulate the 
 operation of the new Act, drastic powers are conferred on 
 the registrar for checking any abuses on the part of 
 traders in the selection of trade names. Rule 1 1 empowers 
 him to refuse any application for the registration of trade 
 marks upon which the following appear : (a) The words 
 " Patent," " Patented," or " By Royal Letters Patent," 
 " Registered," " Registered Design," "Copyright," " Entered 
 at Stationers' Hall," " To Counterfeit this is Forgery," or
 
 182 ADVERTISEMENTS 
 
 words to like effect, (h) Representations of their Majesties 
 or of any member of the Koyal Family. 
 
 Sec. 68 of the Act prohibits the unauthorized assump- 
 tion of the Royal Arms in these words : "If any person, 
 without tlie authority of His Majesty, uses in connection 
 with any trade, business, calling, or profession, the Royal 
 Arms (or arms so closely resembling the same as to be 
 calculated to deceive) in such manner as to be calculated 
 to lead to the belief that he is duly authorized so to use 
 the Royal Arms, or if any person, without the authority 
 of His Majesty, or of a member of the Royal Family, 
 uses in connection with any trade, business, calling, or 
 profession any device, emblem, or title in such manner as 
 to be calculated to lead to the belief that he is employed 
 by or supplies goods to His Majesty or such member of 
 the Royal Family, he may, at the suit of any person who 
 is authorized to use such arms or such device, emblem, 
 or title, or is authorized by the Lord Chamberlain to take 
 proceedings in that behalf, be restrained by injunction or 
 interdict from continuing so to use the same : Provided 
 that nothing in this section shall be construed as affecting 
 the right, if any, of the proprietor of a trade mark con- 
 taining any such arms, device, emblem, or title to con- 
 tinue to use such trade mark." 
 
 To the language of the section must also be added the 
 wording of Rule 12, which prohibits the unauthorized use 
 of national emblems in the following terms : — " Repre- 
 sentations of the Royal Arms or Royal crests, or arms 
 or crests so nearly resembling them so as to lead to 
 mistake, or of British Royal crowns, or of the British 
 national flags, or the word Royal or any other words, let- 
 ters, or devices calculated to lead persons to think that the 
 applicant has Royal patronage or authorization, may not
 
 TRADE MARKS 183 
 
 appear on trade marks the registration of which is applied 
 for. Provided always that nothing contained in this rule 
 shall preclude the registrar from allowing the registration 
 as an ' old mark,' that is as a mark wliich was used by 
 the applicant or his predecessors in business before the 
 13th August, 1875, of any mark which was capable of 
 being so registered before the Trade Marks Act, 1905, 
 came into operation." 
 
 Where representations of the arms of a foreign State 
 or place appear on a mark the registrar may call for such 
 justification as he may deem necessary for their use. 
 Where a representation of the arms or emblems of any 
 city, borough, town, place, society, body corporate, or in- 
 stitution appears on a mark, the applicant shall, if so 
 required, furnish the Eegistrar with a consent from such 
 official as the Eegistrar may consider entitled to give con- 
 sent to the use of such arms or emblems. Where the 
 names or representations of living persons appear on a 
 trade mark, the registrar shall if he so require be fur- 
 nished with consents from such persons before proceeding 
 to register tlie mark. In the case of persons recently dead 
 the registrar may call for consents from their legal repre- 
 sentatives before proceeding with registration of a trade 
 mark on which their names or representations appear.
 
 CHAPTER X 
 
 ILLEGAL ADVERTISEMENTS 
 
 Statutory restrictions of various kinds control the pub- 
 lication of a certain class of advertisements. The betting 
 and lottery advertisements prohibited by statute have 
 been already dealt with. 
 
 Election Advertisements. — A number of statutory 
 offences, created by the Corrupt and Illegal Practices 
 Act, 1883, and the Amending Act of 1895, and other Acts 
 regulating parliamentary and other elections, may be com- 
 mitted in advertisements. One of the most serious is the 
 offence created by 46 & 47 Vict. c. 51, sec. 9, subsec. 2, of 
 publishing in an election a false statement of the withdrawal 
 of a candidate for the purpose of promoting the election of 
 another candidate. By 47 & 48 Vict. 70, the Municipal 
 Election (Corrupt and Illegal Practices) Act, 1884, the 
 provision was extended to municipal elections, to elections 
 of members of local boards, improvement commissioners, 
 poor law guardians, and school boards. A further exten- 
 sion of the provision to county council elections was made 
 by 51 & 52 Vict. c. 41 ; and to parish and district council, 
 London vestry, and boards of guardians elections, by 56 & 57 
 Vict. c. 73. Another illegal practice which may be com- 
 mitted in advertisement is created by the Amending Act 
 of 1895, 58 & 59 Vict. c. 40, concerning the publication
 
 ILLEGAL ADVERTISEMENTS 185 
 
 of a false etatemeut of fact iu relation to the personal 
 character or conduct of a candidate. The section runs iu 
 these terms : — 
 
 " 1. Any person who, or the directors of any body or 
 association corporate which before or during any 
 parliamentary election, shall, for the purpose of 
 affecting the return of any candidate at such elec- 
 tion, make or publish any false statement of fact 
 in relation to the personal character or conduct 
 of such candidate shall be guilty of an illegal 
 practice within the meaning of the provisions of 
 the CoiTUpt and Illegal Practices Prevention Act, 
 1883, and shall be subject to all the penalties 
 for and consequences of committing an illegal 
 practice in the said Act mentioned, and the said 
 Act shall be taken to be amended as if the illegal 
 practice defined by this Act had been contained 
 therein. 
 "2. No person shall be deemed to be guilty of such 
 illegal practice if he can show that be had reason- 
 able grounds for believing and did believe the 
 statement made by him to be true. 
 "3. Any person who shall make or publish any false 
 statement of fact as aforesaid may be restrained 
 by interim or perpetual injunction by the High 
 Court of Justice from any repetition of such false 
 statement or any false statement of a similar 
 character in relation to such candidate, and for 
 the purposes of granting an interim injunction 
 j>rima facie proof of the falsity of the statement 
 shall be sufficient. 
 " 4. A candidate shall not be liable nor shall be subject 
 to any incapacity nor shall his election be avoided
 
 186 ADVERTISEMENTS 
 
 for any illegal practice under this Act committed 
 by his agent other than his election agent, unless 
 it can be shown that the candidate or his election 
 agent has authorized or consented to the com- 
 mitting of such illegal practice by such other 
 agent, or has paid for the circulation of the false 
 statement constituting the illegal practice, or un- 
 less upon the hearing of an election petition the 
 election court shall find the report that the elec- 
 tion of such candidate was procured or materially 
 assisted in consequence of the making or publishing 
 of such false statements." 
 The penalty is provided in sec. 16 of the Acts of 1883, 
 which enacts that a person guilty of an illegal practice 
 shall, on summary conviction, be liable to a fine not 
 exceeding one hundred pounds, and " be incapable during 
 a period of five years from the date of his conviction of 
 being registered as an elector or voting at any election 
 (whether it be a parliamentary election or an election 
 for a public office within the meaning of this Act), held 
 for or within the county or borough in which the illegal 
 practice has been committed." 
 
 Another class of offences which may be created in an 
 advertisement is created by the Act of 1884, sec. 18 of 
 which runs thus : — 
 
 " Every bill, placard, or poster having reference to an 
 election shall bear upon the face thereof the name 
 and address of the printer and publisher thereof ; 
 and any person printing, publishing, or posting, 
 or causing to be printed, published, or posted, any 
 sucn bill, placard, or poster, as aforesaid, which 
 fails to bear upon the face thereof the name and 
 address of the printer and publisher, shall, if he
 
 ILLEGAL ADVERTISEMENTS 187 
 
 is tlie candidate or the electiou agent of the 
 candidate, be guilty of an illegal practice, and if 
 he is not the candidate or the election agent of 
 a candidate shall 1)6 liable, on summary con- 
 viction, to a fine not exceeding one hundred 
 pounds." 
 Relief from tlie penalties is afforded by sec. 20 of the 
 Corrupt and Illegal I'ractices Act of 1883, where the act 
 or omission of a candidate or his agent amounting to an 
 illegal practice arises from inadvertence, or from accidental 
 miscalculation, or from some other reasonable cause of 
 a like nature. Sec. 20 of the Municipal Elections 
 (Corrupt and Illegal Practice) Act of 1884 is to the same 
 effect. In ex Parte Clarke and Others^ four candidates 
 who had issued posters at a municipal election without 
 the name and address of the printer and publisher were 
 excused from the consequence of their action on the ground 
 of inadvertence. But Grove, J., declared : " It must not 
 be taken as a precedent because there is a mistake or 
 inadvertence in tliis case such shall always be so treated 
 in the future. I should be inclined to take a stricter view 
 of these inadvertences when the Act shall become better 
 known." 
 
 Obscene Advertisements. — By 52 & 53 Vict. c. 18, the 
 Indecent Advertisements Act of 1889, the affixing or 
 inscribing of indecent or obscene pictures, or printed or 
 written matter to anything visible in the public highway 
 is rendered an offence punishable summarily. Sec. 3 
 creates the offence in the following words : — 
 
 " Whoever affixes to or inscribes on any house, building, 
 wall, hoarding, gate, fence, pillar, post, board, tree, 
 » 52 L. T. 260.
 
 188 ADVERTISEMENTS 
 
 or any other thing whatsoever so as to he visihle 
 to a person heing in or passing along any street, 
 public highway, or footpath, and whoever affixes 
 to or inscribes on any public urinal, or delivers or 
 attempts to deliver, or exhibits to any inhabitant 
 or to any person being in or passing along any 
 street, public highway, or footpath, or throws 
 down the area of any house, or exhibits to public 
 view in tlie window of any house or shop, 
 any picture, or printed or written matter, which 
 is of an indecent or obscene nature, shall, on 
 summary conviction, in manner provided by the 
 Summary Jurisdiction Acts, be liable to a penalty 
 not exceeding forty shillings, or in the discretion 
 of the court to imprisonment for any term not 
 exceeding one month, with or without hard 
 labour." 
 Certain advertisements relating to sexual diseases are 
 also declared in sec, 5 to be'amongst such indecent adver- 
 tisements as are prohibited in sees. 3 and 4. 
 
 An attempt was made in In re Pearce ^ to convict a 
 newspaper under the provisions of this Act, but it was 
 dismissed by the magistrates, and the dismissal was 
 affirmed by the Queen's Bench Division. 
 
 Betting and Money-lending Advertisements addressed to 
 Infants. — Under the Betting and Loans (Infants) Act of 
 1892 (55 & 56 Vict. c. 4), the sending of an advertisement 
 to a person under twenty-one, inviting such person to bet, 
 is made a misdemeanour, punishable by three months* hard 
 labour and to a fine of £100. Sec. 1 creating the offence 
 runs as follows : — 
 
 » Times, March '2G. 1890.
 
 ILLEGAL ADVERTISEMENTS 189 
 
 "(1) If any one for the purpose of earning commis- 
 sion, reward, or other profit sends or causes to be 
 sent to a person whom he knows to be an infant 
 any circular, notice, advertisement, letter, tele- 
 gram, or other document which invites, or may 
 be reasonably implied to invite, the person re- 
 ceiving it to make any bet or wager, or to enter 
 into or take any share or interest in any betting 
 or wagering transaction, or to apply to any person 
 or at any place with a view to obtaining informa- 
 tion or advice for the purpose of any bet or wager, 
 or for information as to any race, fight, game, 
 sport, or other contingency upon which betting 
 or wagering is generally carried on, he shall be 
 guilty of a misdemeanour, and shall be liable, it" 
 convicted on indictment, to imprisonment, with or 
 without hard labour, for a term not exceeding 
 three months, or to a fine not exceeding one 
 hundred pounds, or to both imprisonment and 
 fine, and if convicted on summary conviction to 
 imprisonment, with or without hard labour, for a 
 term not exceeding one month, or to a fine not 
 exceeding twenty pounds, or to both imjuisonment 
 and fine. (2) If any such circular, notice, adver- 
 tisement, letter, telegram, or other document as 
 in this section mentioned names or refers to any 
 one as a person to whom any payment may be 
 made, or from whom information may be obtamed 
 for the purpose of or in relation to betting or 
 wagering, the person so named or referred to shall 
 be deemed to have sent, or caused to be sent, such 
 document as aforesaid, unless he proves that he 
 had not consented to be so named, and that he
 
 190 ADVERTISEMENTS 
 
 was not in any way a party to and was wholly 
 ignorant of the sending of such document." 
 Sec. 2 of the Act renders the sending of an advertise- 
 ment to a person inviting such person to borrow money 
 punishable in the same way. Where the circular or ad- 
 vertisement is addressed to a person at any university, 
 college, school, or other place of education, and such is 
 an infant, knowledge of the person's infancy on the part 
 of the offender is presumed. 
 
 Adver'tisements of Stolen Projjei'ti/. — Sec. 102 of the 
 Larceny Act of 1861, 24 & 25 Vict, c, 96, deals with 
 advertisements of a certain description. Advertisements 
 offiering a reward for stolen or lost property are rendered 
 illegal where they purport that no questions will be asked, 
 or that no attempt will be made to seize or make inquiry 
 after the person producing the property, or where they 
 offer to repay money to the pawnbroker, or the person with 
 whom the property may have been pledged. The section 
 runs thus : — 
 
 " Whosoever shall publicly advertise a reward for the 
 return of any property whatsoever wliich shall 
 have been stolen or lost, and shall in such advertise- 
 ments use any words purporting that no questions 
 will be asked, or shall make use of any words in any 
 public advertisement purporting that a reward will 
 be given or paid for any property which shall have 
 been stolen or lost without seizing or making any 
 inquiry after the person producing such property, 
 or shall promise or offer in any such public adver- 
 tisement to return to any pawnbroker or other 
 person who may have bought or advanced money 
 by way of loan upon any property stolen or lost,
 
 ILLEGAL ADVERTISEMENTS 191 
 
 the money so paid or advanced, or any other Bum 
 of money or reward, for the return of such pro- 
 perty, or shall print or publish any such adver- 
 tisement, shall forfeit the sum of fifty pounds for 
 every such offence to any person who will sue for 
 the same by action of debt, to be recovered with 
 full costs of suit." 
 By sec. 2 the term " newspaper " means a newspaper 
 as defined for the purposes of the Acts for the time being 
 in force relating to the carriage of newspapers by post. 
 Under sec. 3 all actions against printers or publishers of a 
 newspaper to recover the forfeiture provided for in the 
 Act of 1861 must be brought within six months after the 
 forfeiture is incurred, and with the assent in writing of 
 the Attorney-General or Solicitor-General. 
 
 Advertisements in London Vehicles. — Certain advertise- 
 ments are prohibited by the Hackney and Stage Carriages 
 (London) Act of 1853, sees. 15 and 16 : — 
 
 " 15. It shall not be lawful for the proprietor of any 
 metropolitan stage or hackney carriage to suffer 
 any notice, advertisement, or printed bill, or any 
 names, letters, or numbers, to appear upon the 
 outside of any such carriage, in such a manner as 
 to obstruct the light or ventilation of such carriage, 
 or on the inside of any such carriage, in such 
 position that any such notice, advertisement, or 
 printed bill shall obstruct the light or ventila- 
 tion of such carriage, or cause annoyance to any 
 passenger therein. 
 
 "16. It shall not be lawful for any person to carry 
 about on any carriage, or on horseback, or on foot, 
 in any thoroughfare or public place, within the
 
 192 ADVERTISEMENTS 
 
 limits of the Act, to the obstruction or annoyance 
 of the inhabitants or passengers, any picture, 
 placard, notice, or advertisement, whether written, 
 printed, or painted upon, or posted or attached to 
 any part of such carriage, or on any board or 
 otherwise." 
 
 Miscellaneous. — Where prompt personal service of any 
 writ or other document of which personal service is re- 
 quired cannot be effected, the court or judge may make 
 an order for the substitution of service by advertisement 
 or otherwise. The application must be made by affidavit, 
 showing that all reasonable efforts have been made to 
 effect personal service, that prompt personal service is 
 impossible, and that there is a reasonable probability of 
 the advertisement coming to the knowledge of the party 
 to be served. Substituted service by advertisement is 
 allowed in similar circumstances in the county court where 
 personal service cannot be effected. Where an executor 
 had issued advertisements for creditors under 22 & 23 
 Vict. c. 35, s. 29, no necessity was held to exist for similar 
 advertisements in an administration suit.^ Under the 
 bankruptcy rules, provision is made for the advertisement 
 of the receiving order, etc., but pending the hearing of an 
 application for the rescission of the order, the court may 
 order a stay of the advertisement to enable the debtor to 
 obtain th^ assent of his creditors.^ 
 
 By sec. 2 of Lord Campbell's Act (6 & 7 Vict. c. 96), 
 it is a defence to an action for libel contained in any 
 public newspaper or other periodical publication for the 
 defendant to plead and prove that the libel was inserted 
 
 » Cuthbert v. Warmby, 4 W. N. 12. 
 ' Ex parte Can; 35 W. Iv. 150.
 
 ILLEGAL ADVERTISEMENTS 193 
 
 "without malice and without gross negligence," and tliat 
 before the commencement of the action, or at the earliest 
 opportunity afterwards, he inserted in such newspaper or 
 other periodical publication a full apology for the said 
 libel. But such apology must not be hidden away among 
 the advertisements.^ 
 
 Under Section 306 of the Public Health Act of 1875 
 (38 & 39 Vict. c. 55) any person who destroys, pulls down, 
 or defaces any advertisement placard bill put up with the 
 authority of the corporation of a municipal borough is 
 liable on summary conviction to a penalty not exceed- 
 ing £5. 
 
 » Lafone v. Smitht 3 H. & N. 735.
 
 INDEX 
 
 AcCKPTANCE, doctrines of, uot likely to be extended, 1 
 
 tacit, doctrines of, carried too far, 2 
 Adjective denoting quality, no trade mark, 174 
 Advertisements, contracts formed through, 1-24 
 
 misrepresentation in, 25-39 
 
 orders and other agreements, 40-64 
 
 prohibited by Betting and Lottery Acts, 75-97 
 
 libel and slander of title in, 98-131 
 
 copyright in, 138, 139 
 
 of a literary character, 139 
 an artistic character, 139 
 
 agent's rights and liabilities, 154-159 
 
 classes of, 161 
 
 election, 184-187 
 
 obscene, 187, 188 
 
 illegal, 184-192 
 
 of stolen property, 190 
 
 in London vehicles, 191 
 
 for creditors, 192 
 
 of apology in libel action, 192 
 Agency and commission, 154-171 
 Agreements, advertisement, and other, 40 
 stamping of, 55-62 
 unlimited in time, 158-160 
 Apology, advertisement of, defence to libel action, 192, 193 
 Appeals under Trade Marks Act, 180 
 Application to register trade marks, 179 
 Apprehension, mere, not enough to earn reward, 21 
 Arms of city and borough in trade marks, 183 
 Arms, Royal, use of, prohibited in trade marks, 182 
 Artistic advertisements, 138, 139 
 " Associated " trade marks; 177 
 Associations undertaking examination of goods, 177 
 
 ( 1 )
 
 INDEX 
 
 Auctioneer's adverbisoment no contract unless without reserve, 2, 11 
 loose opinion not misrepresentation, 28, 132 
 cases, 11, 12, 32, 44, 102 
 
 Author's copj'right, 133 
 
 duration of, 135 
 
 Bag manufacturer's advertisement, 109 
 Banking cases, 15 
 
 Bankruptcy rules, advertisements under, 192 
 Belting-cotton manufacturers' advertisement, 122 
 Betting advertisements, 75-97 
 
 house advertisements, 87 
 Books, copyright in, 132 
 Bookseller's catalogue, 2, 140, 141 
 Bottle manufacturers' case, 107 
 Brand, distinctive, 173 
 Breach of contract in advertisement agreements, 40 
 
 warranty in advertisement, 36 
 Business, loss of, in trade libel, 105 
 Butter and margarine merchanit's case, 167 
 
 Calendars, copyright in, 137 
 
 Candle manufacturers' advertisement, 153 
 
 Canvassers' commissions, 154-160 
 
 Catalogues, copyright in, 137 
 
 Certificate of refusal to register trade marks, 179 
 
 Characteristics of trade marks, 172-175 
 
 Charts, copyright in, 134 
 
 Classes of advertisements, 161 
 
 Codes telegraph, copyright in, 137 
 
 Colours in trade marks, 177 
 
 " Combined " trade marks, 177 
 
 Company cases, 10 
 
 Competitions, advertising, 75-97 
 
 Concert advertisement, 131 
 
 Conditions set out in advertisement, fulfilment of, a question of fact, 17 
 
 Contempt of court in advertisements, 104 
 
 Contract, repudiation of, justified by misrepresentation in advertisement, 
 
 38 
 Copyright in advertisement, 132-153 
 Costs, power to award, under Trade Marks Act; 180 
 '! Countermanded until" across advertisement orders, 51 
 
 parol evidence to explain meaning, 51 
 ( 2 )
 
 INDEX 
 
 Coupons, 75-97 
 
 Cricket scoring-sheet, no copyriglit in, 137 
 
 Criminal surrendering, reward not earned, 18 
 
 Criminars confession voluntary, reward due, 19 
 
 Criticism of advertisements, when well founded, 113 
 
 Custom, in regard to advertisements, necessary proof, 1G2 
 
 Customs in advertising trade, 49-51 
 
 Damages, measure of, for loss of commission, 164, 1G5 
 
 Date wrong, in advertisement, when of essence of contract, 41 
 
 Defaming posters, 73 
 
 Definite offer to world a binding contract when accepted, 1 
 
 Definitions in Trade Marks Act of 1905 . . 176 
 
 Designs, copyright in, 134 
 
 Dictionaries, copyright in, 137 
 
 Directories, copyright in, 137 
 
 Disclaimer of responsibility for delay no release from contract, 23 
 
 trade marks, 180, 181 
 Discontinuance of advertisement, followed by damages, 41 
 Distinctive device, 173 
 
 :• Distinctive," meaning of, as applied to trade marks, 175, 177 
 Divisible contracts, when advertisement orders are, 51 
 Drawings, copyright in, 134 
 Duration of copyright, 135 
 
 EtiECTiON advertisements, 184-187 
 Engineer's case, 105, 166 
 
 advertisement, 114 
 Engravings, copyright in, 134 
 Essential particulars of a trade mark, 172, 173 
 
 "Fancy words or words not in common use," 173, 174 
 Farm-letting advertisement, 36 
 Financial paper's case, 116-118 
 Food-cattle advertisement, 126, 127 
 Foreign author's right in British dominion, 133 
 Foreign lotteries, advertisement of, lawful, 88 
 Form of application to register trade marks, 179 
 Fraud, elements of, 26 
 
 Fraudulent advertisement admissible against persons charged with 
 fraud, 27 
 
 ( 3 )
 
 INDEX 
 
 Geographicai. names as trade marks, 174, 175, 17G 
 German artist's picture, 133 
 Guides, railway, advertisement in, 47, 48 
 Gunsmith case, 103 
 
 Headings of advertisements, copyright in, 146-149 
 Hoarding advertisements, hoardings when rateable, 05 
 House-furnisher's catalogue, 141-145 
 
 Identical trade marks, 181 
 
 Immoral object of advertisement justify rejection, 41 
 Impression, produced by advertisement, when binding, 23 
 Infants; sending betting advertisements to infants, 8G 
 
 betting or money-lending advertisements addressed to, 189 
 food case, IIG 
 Information given with view of being acted on; 21 
 
 first person giving, entitled to reward, 21 
 giving, a good consideration for reward, 21 
 Infringement of copyright, 134-140 
 
 trade mark, 178 
 Injunctions interim, when granted, 117-128 
 Insurance, policy, negotiations as to, mere preliminaries to contract; 
 
 9,10 
 Intention, expression of, no contract, 9 
 " Invented word or words," 175 
 Invitation, letters of credit amounts to general, 16 
 Itineraries, copyright in, 137 
 
 Legacy advertisement, 37 
 
 Libel action, advertisement of apology defence to, 192, 193 
 
 in advertisements, 98-131 
 Literary productions, copyright in, 136-138 
 Lithographic prints, 134 
 
 Living people, names or representations of, in trade marks, 183 
 London vehicles, advertisement in, 191 
 Lottery advertisements, 75-97 
 
 definition of, 76 
 
 tests of a, 77 
 
 sales illegal, 80 
 
 foreign, advertisement of, 85 
 
 ( 4 )
 
 INDEX 
 
 Magazines, copyright in, 133 
 
 Malice, advertisement as evidence of, 103 
 
 Maps, copyright in, 134 
 
 Marriage, general words as to, 13, 14 
 
 Material representation in advertisement, if untrue, 34 
 
 Materials obtained by canvasser, 170, 171 
 
 Measure of damages for neglecting to insert advertisement, 43 
 
 Mineral-water manufacturer's case, 129, 130 
 
 Misrepresentation in advertisement, legal effect of, 25 
 
 must cause damage to be action- 
 able, 29 
 as to material facts fatal to contract, 25 
 fraudulent in advertisements, cause of action for 
 
 deceit, 27 
 innocent, how it differs from fraud, 27 
 
 Missing-word competition, 83 
 
 Money-lender's advertisement, 33, 38 
 
 Motions to rectify registration of trade marks, 17S 
 
 Music, sheets of, copyright in, 134 
 
 Nationax- emblems prohibited in trade marks, 182 
 Negligence to insert advertisement, breach of contract, 40 
 Newspaper competitions, 85-97 
 
 cases, 127, 128 
 Newspapers, copyright in, 133 
 Nickel-plate company's advertisement, 104; 105 
 
 Obscene advertisements, 187, 188 
 
 Ofier, definite, to world, a binding contract when acted upon, 1, 17 
 must be accepted by ascertained person, 8 
 knowledge of, in reward cases, 3 
 must be capable of application to specific persons, 3 
 
 distinguishable from offer to do business, 4, G, 13 
 by advertisement dispenses with notice of acceptance, 5 
 withdrawn before acceptance, 8 
 Oil manufactm-er's advertisement, 115 
 Omission of advertisement a breach of contract, 43 
 Opinion, border-line between, and statement of fact, 28 
 Opposition to registration of trade mark, 179 
 Options, unilateral, in advertisement contracts, 47 
 reserved by letters " U.C." across order, 51 
 Oral evidence in trade mark appeals, 180 
 
 ( 5 )
 
 INDEX 
 
 Paintings, original, copyright in, 134 
 
 Pamphlets, copyright in, 133, 149 
 
 Particulars essential, of a trade mark, 172, 173 
 
 Patent medicine advertisements, 44, 110-112 
 
 Payments for advertisements, when due, 52 
 
 Performance of conditions in advertisement amounts to contract, 14 
 
 Periodicals, copyright in, 133 
 
 Photographs, copyright in, 134 
 
 Piano dealer's advertisement, 29-31 
 
 Pictures, copyright in, 151 
 
 Pill vendor's advertisement, 110-112 
 
 Plans, copyright in, separately published, 134 
 
 Police rewards cases, 16-22 
 
 Posters fixed to hoarding, a form of property, 72 
 
 Pottery manufacturer's case, 165 
 
 Principal and agent, 154-159 
 
 Printers' cases, 49, 50, 129 
 
 Prints, copyright in, 134 
 
 Privileged, libel in advertisements, when, 106-111 
 
 Privity of contract, advertisement must contain, 10 
 
 Prohibition of certain words in trade marks, 181 
 
 Property stolen, advertisement of, 190 
 
 RACiNCt coupon competitions, 82, 93 
 
 Railway time-table, when amounting to contract, 22 
 
 Rating of advertising stations, 64 
 
 Rectification of trade marks registrating, 179 
 
 Registration of copyright, 134 
 
 trade marks, 178, 179 
 
 conclusive evidence of user, 178 
 motions to rectify, 178 
 Relief under Corrupt Practices Act of 1883 . . 187 
 Removing order, advertisement of, 192 
 Rewards for information or service, if advertised, becomes binding when 
 
 earned, 3 
 Royal Arms, use of, in trade marks, 182 
 
 crests, etc., use of, in trade marks, 182 
 
 SAiii-CLOTH manufacturer's advertisement, 120, 121 
 
 Sales lottery illegal, 80 
 
 Schemes, advertising, when illegal, 75-97 
 
 Security for costs in trade mark cases, 180 
 
 " Series " of trade marks, 177 
 
 ( 6 )
 
 INDEX 
 
 Sermon, libol in, 123 
 
 Service of writ by advertisement, 192 
 
 Services, rendering of, sot out in advertisement, amounts to contract, 16 
 
 Shipping agent's case, 163 
 
 Signals, railway, manufacturer's case, 125 
 
 Signature as trade mark, 17'1, 175 
 
 Singer's namo in advertisement, 131 
 
 Slander of title in advertisements, 98-131 
 
 Solicitor's advertisement, 34, 35 
 
 Special or standardized trade marks, 177 
 
 Stamped, when advertisement orders need not be, 59 
 
 Stamping of advertisement orders, 55 
 
 insurance coupons, 63 
 Stations, advertising, rating of, 65 
 Stock-exchange prices, copyright in list of, 137 
 Stolon property, advertisement of, 190 
 Stonemason's catalogue, copyright in, 140 
 Substituted service by advertisement, 192 
 
 Tailor, ladies', advertisement, 41-43 
 
 Tea-sales' lottery, 81 
 
 Time-table of railway company a contract when acted upon, 1, 22 
 
 Tips, sporting, no copyright in, 137 
 
 Title, slander of, in advertisements, 98-131 
 
 Trade marks, 118, 172-183 
 
 Type-setting company's case, 
 
 Tyre manufacturer's case, 118 
 
 Use, actual, of trade marks, 175 
 
 Vehicles, advertisements in, 191 
 
 Was figures exhibition; 119 
 
 Word or combination of words in trade mark, 173 
 
 " Word or words, fancy, not in common use," 173, 174 
 
 " Word or words, invented," non-description of character of goods, 174 
 
 Writ, service of, by advertisement, 192 
 
 ZiNC-PAiHX manufacturer's advertisement, 113 
 
 THE END 
 
 ( 7 )
 
 PKINTKD BY 
 
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 UNIVERSITY OF CALIFORNIA LIBRARY 
 
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