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agents in this Colony, and the other by Mr. C. D. Wilkinson, of Messrs. Wilkinson and Grist, the solicitors for the plaintiffs. Mr. Humphreys in his affidavit stated that his firm had for many years been the sole agents for the plaintiffs in the Colony, and had imported and sold large quantities of boots and shoes bearing upon them plaintiffs' trademarks, both of which were registered in Hongkong. The said trademarks had acquired a good reputation among the Chinese of Hongkong and South China. n November 1st be discovered at several Chinese shops in Canton rubber shoes exposed for sale having stamped upon them imitations of plaintiffs' trademarks, Mr. Wilkinson's affidavit showed that earlier proceedings had been taken in respect of the same lion rampant mark, when an undertaking was given. Inter alia counsel suggested that his Lordship would see there had been a breach of that undertaking.
His Lordship-Do you apply for an interim injunction ?
Mr. Pollock-Yes.
His Lordship-Some prima facie breach of the undertaking must be shown.
Mr. Pollock-Defendants' solicitors have stated in their correspondence and it is difficult for Us to disprove that state- ment-that the internal mark on the shoes has been put on by Chinese after the goods had left defendants' possession, Therefore it is presumable that Chinese have affixed that mark on the exhibits before the Court,
His Lordship-On the face of it, it looks as if copied by a Chiuaman. There is no sense in it and the letters are put in in any way. I also observe that the lions are used in a different way.
Mr. Pollock-That is just where the imita tion comes in. In cases of condensed milk you very seldom see an exact design. Some extra figure is put in to imitate a certain brand.
His Lordship-Defendants' undertaking would not prevent the sale in Cauton of shoes already sold by the defendants.
Mr. Pollock remarked that it would prevent the sale of shoes sold, but not delivered.
His Lordship-Prior to this undertaking 63 cases of shoes were shipped to Canton.
Mr. Pollock-Shipped to Canton, but it does not say they have been sold. We want specially, for the plaintiffs' protection, delivery of those cases which have not yet been delivered,
His Lordship-It seems to me that on this application I might say you cannot have an interim injunction unless you can show a breach of the undertaking.
THE HONGKON) WEEKLY PRESS AND
tion to restrain the breach of any contract in the abstract,
Mr. Pollock-i submit the undertaking is not intended to cover merely Hongkong, but other ports.
His Lordship-An interim judgment would only apply to the sale of goods not delivered. don't see how you can get an injunction with regard to things partly delivered. That is damages.
Mr. Pollock-It could only refer to what they bave got in their possession.
His Lordship Let us look at it from this point of view. Supposing the action was merely for damages for breach of undertaking, could you then get an injunction to prevent delivery of
these cases?
Mr. Pollock-Wo would submit so, That undertaking ought to cover any trang action not yet completed.
His Lordship-I think, in view of ft:ture cases, it ought to be made clear what an injunction is given in respect of. With regan to the undertaking being put on one side: then I have to consider whether anything is likely to be done in Hongkong as a distributing centre, I think I see my way to give you an injunction to prevent further breach of the undertaking, but that opens up the question whether the sale in Canton is a breach of the Hongkong trademark.
Mr. Pollock-Messrs. Arnhold, Karberg and Co. have a branch of their firm in Canton. If we cannot proceed against them there it would amount to this: that no protection would be granted to any trademark in this Colony. All parties would have to do would be to open a branch in Canton.
His Lordship-I want to see whether it is essential to connect this undertaking with the trademark or not. You cannot get an injuno
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Mr. Pollock-Your Lordship will probably remember the celebrated singing case. The singer was under contract to sing at theatre A and threatened to sing at theatre B. The Court held that they could not make her sing at theatre A, but injuncted her from singing at theatre B in the hope that it would induce her to carry on her contract.
His Lordship granted an interim injunction to restrain the defendants from breach of their undertaking not to infringe the plaintiffs' rights by selling goods in Cinton, and granted leave for the other side to be served with a notice of motion, the hearing of which was fixed for December 10th.
COURT PROTEC ION FOR SOLICITORS,
In the matter of the Legal Practitioners Ordinance 1871, and in the matter of Original Jurisdiction Actions 197 of 1992, 20 of 19 3 and 28 of 1903.
Hon. Mr. H. E. Pollock, K.C., instru fed by Mr. C. D. Wilkinson (of Messrs. Wilkins ›n and Grist), moved for a declaration that in the conduct of several actions, being actions 197 of 1902, 20 of 1903 and 29 of 1943 in original jurisdiction, brought on behalf of John Clifford Wilkinson by the firm of Wilkinson and Grist in this Colony, that the said firm acted through. out in a strict and proper professional manner. and that they were duly authorised by the said Johu Clifford Wilkinson to commence and proceed with the said actions.
for his
Counsel explained that the ra3800 this motion being made befo:e Lordship was that Messrs. Wilkinson and Grist, who commenced an action and obtained judgment in this Court for their costs incurred in the three actions mentioned in the notice of motion, had since sought to enforce that judgment in the Courts of Japan. and Jdhu Clifford Wilkin. son. the defeudant in that action (the plaintiffs being Messrs; Wilkinson and G.is) stated that he had not given instructions to Messrs. Wilkinson and Grist in two out of those three actions. These proceedings had bean reported in the Japan Chronicle at Kobe and had also been repeated to a certain extent in the local Press here. l'herefore this was a malter which it was imperative for Messrs. Wilkinson and Grist to bring up before his Lordship for the purpose of laying before the Court the real facts of the case. The applica. tion was supported by two affidavits -one by Mr. Wilkinson and the other by Mr. Beavis, Mr. Wilkinsou's affidavit stated that in the month of November 1902 he was instructed by Mr. Mitchell, then agent in Hongkong for John Clifford Wilkinson, to commenc, Wu action against Ea Shu and Ca. to restrain that firm from infringing registered trademark. Regarding that part John Clifford Wilkinson did not dispute that he instructed them in that action. Mr. Wilkin- son's affidavit went on to state that subse. quently to bringing the said action he was in- formed by the agent that the Nippon Yusen Kaisha, Ritchie and Co. and others in Hong kong were selling goods bearing on them an imitation of the said trademark, whereupon he wrote to John Clifford Wilkinson asking for instructions in the matter. Not having received instructions be wrote certain letters in reply to which on January 21st, 1903, he received a telegram which Vas annexed to the affidavit, and in pursuance of instruc- (ions contained thereou he brought actions against the Nippon Yusen Kaisha and Ritchie and Co. Mr. Pollock stated that if bis Lordship would refer to extracts from newspapers before the Court he would find that John Clifford Wilkinson gave certain evidence before the Courts in Japan as a witness in his own behalf, which certainly seemed to convey clearly the meaning-part from the action against Ea Shu and Co-that Messrs. Wilkinson and Grist in taking proceedings against the other parties were acting without his iustructions.
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His Lordship read the cuttings refered to, after which
Mr. Pollock said his Lordship would see from the letters annexed to Mr. Wilkinson's affidavit, and the telegram wired back contain- ing the word "proceed", that Messrs. Wilkinson and Grist were to proceed, not merely against Ea Shu and Co., but against the others. In
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[November 26, 1906,
July they received a cablegram containing the word "stop."
His Lordship- Has that anything to do with the other two actions?
Mr. Pollock-Materially in this respect: there can be no doubt about it that John Clifford Wilkinson must have known the actions against the Nippon Yusen Kaisha and Ritchie and Co. were going on. It was a monstrous thing for the defendant to sy he did not know about it when he asked them to withdraw, Mesars. Wilkinson and Grist's costs formed the subject matter of an action brought in this Colony, sad they obtained judgment for those costs. They had therefore a foreign judgment in their favour which was being sued upon in the Courts of Japan. His Lordship knew the ordinary rula followed in our Court was to accept judg ments of fore.gu Courts upon their merits. la this case Messrs. Wilkinson and Grist had obtained judgment for costs after dus notice to John Clifford Wilkiosɔn, and it did seem a somewhat serious matter if the judgment of this Court was to be set aside and not received ou its merits,
His Lordship said-This motion is one of a most unusual 'kind, sal I doubt if such an application has ever been made before. But the circumstances are unusual and I doubt if they ever occurred before, though the ingenuity of judgment debtors in laveating devices for evading payment of their just debts in general is known to by vary fertile. In particular, this ingenuity displays itself in devising, defenes to an action on a judgment given, against them in a foreign coart. But, though I have had some experience in the matter, and th ugh the defence of fraul is occasionally raise i, I doubt if it has ever been raised in sach a bire-faced mauner before, aud in a manner which must of itself react when the true facts are known against the judgment debtor himself. The motion as I said, being of a very unusual kind, I must first consider whether I have say jarisdiction to entertain it, quite apart from any jurisdiction under the Ordinance. What is it? It is not a motion which calls on this Court to express any opinion on the judgment of the Japanese Court. That, of course, I could not entertain bowever much I might regret the result which has been brought about by the conduct of the judgment debtor, him- self a British subject, that result being a refusal to enforce a judgment of this Court. The Courts of our Ally are entitled to receive, and will always receive, the same respect which is paid to the Courts of all natious within the comnity, even though they may have misioter. preted or been misinformed as to the law of this Colony on which the judgment has proceeded. But the motion is quite of a diff «reat nature. It is made on behalf of a solicitor practicing in this Court, for a declaration that certain state- ments made by the defendant in the Japanese Court in an action on the judgment of this Court for his costs, which reflect on his profes- sional conduct, ia proceedings before this Court in respect of which the Costs were incurred, and which are calculated to injure him among his clients whether in this Colony or in Japan, are untrue. That I have jurisdiction to euter- tain such a motion I have not the smallest sha low of a doubt. Solicitors are officers of the Court. Tuere is a jurisdiction in the Court quite apart from the Ordinance to investigate their conduct when it is brought before it, an investigation which is not entirely limited to breaches of professional good behaviour, and in conducting it the Court is bound to inquire narrowly into the circumstances. This jurisdictioa cannot be one-sided. It cannot exist merely for the purpose of enforcing the duties of solicitors against them and punishing breaches: it must also extend to the co-relative of protecting their rights should they be infringed in a way which cannot be redressed by the usual processes of law. What is the case here? Charges have besa made against a firm of solicitors in this Colony for conducting proceedings entirely without instructions and on their own initiative. That is conduct which, if it were true, is in the highest degree unprofesional-the penalty, removal or suspension from the rolla It is conduct which it would be the daty of the Law Society had it received the status which I hope it will sooa receive, to have brought to the notice of the Court. I am sure that when in due course the report ́had
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